STB Reaffirms CP-KCS Voting Trust—With One Dissent

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

The Surface Transportation Board on Sept. 30 issued a decision essentially reaffirming that the Canadian Pacific-Kansas City Southern voting trust, which it approved on May 6, 2021, still stands. STB’s decision was not unanimous, however, with Member Robert Primus voicing the lone dissent.

STB said it is “providing notice of its receipt of an amended notice of intent to file an application seeking authority for a proposed transaction between Canadian Pacific Railway Company (CP) and Kansas City Southern Railway Company (KCS). The Board finds that the approval it previously granted to CP and KCS to use a voting trust applies to the voting trust described in the amended notice.”

The Board noted that “while it is not a foregone conclusion that the [prior] approval remains effective where a merger agreement is terminated but later revived, in the instant situation, among other things, the voting trust described in the applicants’ amended notice is substantively identical to that approved by the Board on May 6, 2021, and the Board found that the modified financial terms of CP’s offer would not impact the operation of the voting trust. However, the Board retains continuing jurisdiction to order modifications and correct future problems that may come to its attention.”

Primus based his dissent largely on his objection to the CP-KCS merger being considered under the Board’s pre-2001 rules, via a waiver that applies to KCS. Primus said, in part:

“The topic of railroad consolidation has long been a public concern. Past efforts to consolidate have been viewed as both necessary and disruptive to our national rail network. In the 1990s, as the number of Class I’s quickly shrank, concern over consolidation grew. The Board’s resulting adoption of the current merger rules in 2001 was the appropriate response to this concern—in particular, its insistence that the public interest be a major component in the consideration of any voting trust and merger application. Now, 20 years later, the Board is once again front and center in the debate over consolidation and the future of the network. In the interest of the public good and for the well-being of the national rail network, any further consolidation of the Class I’s should be subjected to the current merger rules, which call for the Board to consider whether the public interest is best served by a merger agreement’s proposed voting trust. For these reasons, I respectfully dissent.”

The Board’s decision in Canadian Pacific Railway Limited; Canadian Pacific Railway Company; Soo Line Railroad Company; Central Maine & Quebec Railway US Inc.; Dakota, Minnesota & Eastern Railroad Corporation; and Delaware & Hudson Railway Company, Inc.—Control—Kansas City Southern; The Kansas City Southern Railway Company; Gateway Eastern Railway Company; and The Texas Mexican Railway Company, Docket No. FD 36500, may be downloaded here:

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