January 15, 2026|Regulatory

CN on UP+NS: ‘Show Us Schedule 5.8′ (UPDATED with BNSF, CSX and CPKC Filings)

Written by William C. Vantuono, Editor-in-Chief

CN on Jan. 8 filed a motion with the Surface Transportation Board (STB) “to compel additional information in relation to the proposed merger agreement between Union Pacific (UP) and Norfolk Southern (NS).” CPKC filed a motion supporting CN’s position. BNSF filed a motion much broader in scope, with CSX fling a supporting motion.

CN said its 77-page motion, STB FINANCE DOCKET NO. 36873 – GRAND TRUNK CORPORATION’S MOTION TO COMPEL PRODUCTION OF SCHEDULE 5.8 TO THE MERGER AGREEMENT (download below), “shows that the applicants have not been upfront with their assessment, failing to outline the full extent of competitive harms as a result of the merger, one of many problems with the application.” CN’s motion is specifically about STB Schedule 5.8 is a confidential document that is part of the merger agreement between UP NS.

From the motion: “Despite the fact that CN first requested the Merger Agreement months ago, Union Pacific has refused to produce it. Indeed, Union Pacific has gone so far as to now deny even the Board the ability to see the full Merger Agreement, despite Union Pacific’s regulatory obligation to provide it in full. CN had hoped this matter would resolve prior to the filing of the Application, or at the very least that Applicants would resolve their deficiency with the Application itself. But Union Pacific has not provided the Board with any of the appendices, schedules, or disclosures to the Merger Agreement. CN has respectfully submitted to the Board that this deficiency renders the Application incomplete as a matter of law, and that Union Pacific’s failure to provide Schedule 5.8 is particularly egregious since it reflects an attempt by Applicants to improperly shield from the Board the document most likely to reflect Applicants’ views—views formed outside the context of litigation when Union Pacific and Norfolk Southern were negotiating against each other—as to the potential anticompetitive effects of the proposed merger. But in their January 2, 2026 response to the submissions of CN and others arguing that the Application is incomplete, Applicants make clear that they will stand on their erroneous privilege objections. Without legal citation or further explanation, Applicants made a bald assertion that the ‘schedule at issue is shielded from discovery by recognized privileges.’ Since Applicants have claimed that the question of whether Schedule 5.8 is privileged is a ‘discovery dispute,’ CN respectfully files this motion to ensure the issue is resolved promptly. CN submits this motion without waiving its argument that Applicants’ omission of Schedule 5.8 renders the Application incomplete as a matter of law, and in fact continues to encourage the Board to reject the Application and mandate full disclosure of all appendices, schedules, and disclosures to the Merger Agreement. In all events, CN respectfully seeks an order requiring Union Pacific to produce Schedule 5.8 expeditiously.”

CN on Dec. 29. 2025 filed with the STB 91 pages of comments on the merger application’s completeness, “in which we identified shortcomings in the Application, such as understating 2-to-1 customers, failing to disclosure 3-to-2 customers, missing market share projections by revenues and volumes, an incomplete network map that did not include their trackage rights segments over each other’s lines, and failure to propose competitive enhancements,” a CN spokesperson told Railway Age. “CN’s Jan. 8 filing is a motion to compel disclosure of a schedule to the merger agreement that Union Pacific and Norfolk Southern have withheld as privileged.”

“Given the scale and stakes of the proposed combination, the applicants must meet the highest standard of transparency and compliance,” said CN Senior Vice-President and Chief Legal Officer Olivier Chouc. “The information the applicants refuse to disclose is critical to understand their perspective on anticipated competitive harms and inform the Board’s public-interest and competition analyses. Rather than hide behind an [unsuitable] legal argument, the applicants should welcome the opportunity for a transparent and fulsome discussion about the merger’s impact on competition. Rather than trying to convince everyone that there is ‘nothing to see here,’ the applicants should instead be focused on meeting the rigorous and heightened standard called for by the new [2001] merger rules.”

CN noted the UP-NS application had several other “shortcomings,” including “incomplete market analyses: Applicants neither disclosed the methodology and data underlying their claim that only three 2‑to‑1 shippers exist nor provided the full lists of 2‑to‑1 and 3‑to‑2 points as stated in the STB’s requirements”; “missing projections for market shares by revenues and traffic volumes: Applicants did not provide required market share projections and omitted key traffic data in their analyses, undermining the traffic inputs for their Operating Plans”; an “incomplete network map: Applicants maps failed to depict certain trackage and haulage rights, including segments showing direct parallel or overlapping lines in watershed states, in what appears to be an effort to [misleadingly portray] the transaction as ‘end-to-end’ and deprive the Board and parties of essential competitive context. Applicants have since conceded their error and have filed a new map”; and “failure to propose competitive enhancements: Applicants claim this issue should be dealt with at the merits stage. While adequacy of proposed remedies might be a merits issue, the failure to meet a basic regulatory requirement is a completeness issue. Applicants offer nothing to enhance competition, and their application should be deemed incomplete.”

CPKC, BNSF, CSX Filings

BNSF on Jan. 8 filed a similar, yet broader, 166-page motion (download below). CSX—BNSF’s presumed future merger partner should the UP-NS be approved— filed a supporting motion consisting of only four pages (download below). CPKC filed an equally brief motion supporting CN (download below).

From the BNSF motion: “Despite the stakes, UP and NS want exemptions from the most basic discovery obligations. UP and NS have not provided basic information that stakeholders and the Board need to test UP’s and NS’s contentions: their board materials, banker presentations, and relevant internal emails. In other words, UP and NS are blocking efforts to see what they actually believe and discuss internally: whether the merger will hurt competition by reducing service or leading to higher rates for shippers; whether the executive teams actually believe the merger will enhance competition; where the integration could go awry and cause disruptions; and whether the purported benefits are achievable at all, or alternatively, achievable absent a merger. To date, UP has been at war with its own positions. In the CP/KCS merger, UP argued that an end-to-end merger could still lead to foreclosure and harm competition … Now that it wants to merge with NS, UP sheds those principled positions. The contradictions extend to discovery, too. In the CP/KCS merger, UP sought communications from the applicants, as well as documents provided to KCS by CP to persuade the KCS board; studies or analyses evaluating the impacts of the CP/KCS combination; and studies relied on by KCS to evaluate the merger. Here, UP and NS take the opposite approach. Their efforts to block basic discovery would be unacceptable in any contested merger—or any business litigation in any forum. But it is particularly indefensible when the merging parties claim they will change the industry for the next hundred years. Too much is at stake to let UP and NS shield their internal, candid assessments and conversations from other parties and the Board. UP and NS should be compelled to produce this basic information.”

From the CSX motion: “CSXT joins and supports BNSF’s motion to compel for all of the reasons expressed in the Motion. As explained in the Motion, the Applicants’ board materials, banker materials, and email communications are highly relevant in evaluating the potential competitive effects of the proposed merger; potential conditions that would mitigate merger-related harms; alternatives to the proposed merger; and a variety of other issues central to this matter. Indeed, these materials are routinely and regularly relied upon in merger litigations and have been referred to as ‘ubiquitous’ by courts evaluating mergers.”

From the CPKC motion: “As set forth in CN’s Motion, CPKC and other parties to this proceeding have a legitimate interest in Schedule 5.8, which defines material terms of the transaction that Applicants have submitted to the Board for regulatory approval. No good faith claim of privilege applies to contractual promises UP made to induce NS to sign the merger agreement … It is also worth observing that in the CP/KCS merger proceeding in 2021 (which created CPKC), the application for Board approval contained a version of the merger agreement that included (in unredacted form) the analogous ‘efforts’ clause reflecting CP’s obligations regarding seeking and obtaining regulatory approval.”