Antitrust Law Daily Wrap Up, TOP STORY—D. Kan.: Dow’s $835M settlement in urethane price fixing class action approved, (Aug 1, 2016)

By Jeffrey May, J.D.

The federal district court in Kansas City, Kansas, has granted final approval to an $835 million settlement, bringing an end to a long-running price fixing class action brought on behalf 2,200 class members who purchased urethane chemical products. This settlement with Dow Chemical Company comes on top of settlements with the other defendants totaling $139.3 million and follows a jury trial and judgment against Dow of more than $1 billion. The judgment was upheld by the U.S. Court of Appeals in Denver, and Dow’s petition for U.S. Supreme Court review of the holding was placed on hold during the pendency of the settlement proceedings. The settlement was approved despite objections to the proposed plan of allocation and the attorney fee award (In re Urethane Antitrust Litigation, July 29, 2016, Lungstrum, J.).

Allocation plan. The plaintiffs’ proposed plan of allocation of the proceeds of the settlement with Dow was approved over the objection of PMC Global, Inc., a holding company for several class members. PMC took issue with the fact that the allocation plan did not provide for any recovery with respect to purchases during the 1999-2000 period, even though Dow sought a release for claims involving those purchases. The class plaintiffs argued that the proposed allocation was reasonable because the jury had found no damages during the 1999-2000 period. The court agreed, since the jury’s finding and the lack of a subsequent appeal of that finding foreclosed any possible future recovery on these claims. The court concluded "with certainty" that the claims for the 1999-2000 period had no value.

Attorney fees. The court also rejected a challenge to an award of attorney fees in the amount of one-third of the Dow settlement fund. Objectors Johns Manville Corporation and Whirlpool Corporation called the fee petition excessive.

The court approved the fee petition, noting "[i]n almost 25 years of service on the bench, this Court has not experienced a more remarkable result." Plaintiffs' counsel achieved incredible success, according to the court. Moreover, counsel litigated the case to a verdict and an appellate affirmance, expending an enormous amount of time and labor.

According to the court, the only factor truly disputed by the objectors was the size of this award in relation to awards in similar cases. The objectors argued that fees were typically awarded at a much lower percentage in so-called "megafund" cases. The court explained, however, that the fee percentage had to be determined on a case-by-case basis. In this case, a fee at the top of the range of awards in megafund cases was still reasonable. The court also awarded expenses in the requested amount of $1,545,872.58.

The case is No. 2:04-md-01616-JWL.

Attorneys: Robert W. Coykendall (Morris, Laing, Evans, Brock & Kennedy, Chartered), Donald L. Perelman (Fine, Kaplan and Black, R.P.C.), and Richard A. Koffman (Cohen, Milstein, Sellers & Toll PLLC) for class plaintiffs. Brian R. Markley (Stinson Leonard Street LLP) for Dow Chemical Co.

Companies: Dow Chemical Co.; Johns Manville Corp.; PMC Global, Inc.; Whirlpool Corp.

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