DENVER—The Tenth Circuit Court of Appeals in Denver has rejected Dow Chemical Co.'s appeal of a $1.06 billion verdict in a price fixing case involving polyurethane chemicals.
In February 2013, a jury before Kansas City federal district court found Dow had participated in a conspiracy between 2000 and 2003 to fix prices for its polyurethane chemicals. Judge John W. Lungstrum ordered Dow to pay $400 million in damages.
Three months later, Longstrum rejected Dow's motion to decertify the class action suit on behalf of Dow customers, effectively ordering the company to pay $1.2 billion in damages—triple the original award—to the plaintiffs in the class action.
In July 2013, Longstrum, taking into account the payments made by other companies to avoid going to trial, reduced the class action award to $1.06 billion. In February 2014, Lungstrum denied Dow's motion to dismiss the price-fixing claims of three groups of plaintiffs that opted out of the class action award.
Dow appealed the class action decision to the Denver appeals court on four grounds, as follows:
• That class certification was improper because common questions did not predominate over individualized questions;
• That the district court should have excluded the testimony of the plaintiffs' expert on statistics;
• That the evidence regarding liability was insufficient; and
• That the $400 million damages award was based on insufficient evidence and violated the Seventh Amendment.
In his Sept. 29 decision, Judge Robert Bachrach rejected all four arguments.
“Any impact resulting from a price-fixing conspiracy would have permeated all polyurethane transactions, causing market-wide product impact despite individualized negotiations,” Bachrach wrote.
News reports quoted Dow spokesmen as denying all allegations and saying it would consider taking the case to the U.S. Supreme Court.