Antitrust Law Daily Wrap Up, TOP STORY—D. Kan.: Damages allocation plan approved in price fixing class action against Dow, (Jul 29, 2013)

By Jeffrey May, J.D.

The federal district court in Kansas City, Kansas, has approved the plaintiffs’ proposed plan for allocation of damages among the class members in an action against Dow Chemical Company for conspiring with other chemical manufacturers to fix prices for certain polyurethane chemical products (In re: Urethane Antitrust Litigation, July 26, 2013, Lungstrum, J.).

Following a jury's verdict in favor of the plaintiffs, the court entered a $1.2 billion judgment against Dow in May. The court has now amended the judgment to account for settlements with other defendants. Based on these settlements totaling $139,300,000, the judgment amount was reduced to $1,060,847,117.

The court granted the plaintiffs’ motion for approval of their notice to the class. The plan was reasonable and appropriate, in the court's view. It established a method for distribution of the damages, leaving only a mechanical application for the administrator.

Under the proposed allocation plan, the administrator who was previously appointed for distribution of settlement amounts in the case would be appointed as administrator, and the damage award would be distributed to class members on a pro rata basis in accordance with each member’s estimated overcharges during the class period (from November 24, 2000, through December 31, 2003). Remaining unclaimed funds would be distributed to participating class members, or the court could allow cy pres distribution, under the plan.

The court reiterated its earlier rejection of Dow's contention that a jury must adjudicate the damages of each individual class member. “[A]lthough Dow has an interest in making sure that the judgment against it is proper . . . Dow has no interest in the particular manner in which the total damages found by the jury are distributed among the class members,” the court explained.

Statute of limitations. The court granted the plaintiffs' request for an order tolling the statute of limitations for claims based on 2004 purchases, for the period from entry of the judgment (May 15, 2013) to 60 days after the mailing of the class notice. Dow did not oppose tolling for the requested period. While the plaintiffs agreed to make some changes in the language of the notice regarding the tolling of the statute of limitations, the notice was not revised to set out the circumstances giving rise to the modification of the class definition, as requested by Dow.

Dow's motion to amend judgment. Once again, the court rejected Dow's arguments that it had already disposed of in denying Dow’s motion for decertification and its motion for judgment as a matter of law or a new trial. Dow failed to provide any basis for reconsideration of the court’s earlier ruling.

In addition, the court rejected Dow's contention that the jury was required to find damages individually for each class member, and only then could individual awards be trebled. The court was not persuaded that aggregate damages could not be awarded. Dow provided no authority suggesting that an aggregate award should not be trebled in accordance with the clear language of the Clayton Act, according to the court.

The case is No. 04-1616-JWL, MDL No. 1616.

Attorneys: George A. Hanson (Stueve Siegel Hanson LLP) for plaintiffs. Brian R. Markley (Stinson Morrison Hecker LLP) for Dow Chemical Co.

Companies: Dow Chemical Co.

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