Antitrust Law Daily Wrap Up, TOP STORY: Three manufacturers settle polyurethane foam price fixing action for $22M, (Jul 29, 2015)

By Linda O’Brien, J.D., LL.M.

In multidistrict litigation against furniture component makers and suppliers by indirect purchasers regarding the sale of flexible polyurethane foam, manufacturers FFP Holdings, Future Foam, Inc., and FXI Holdings have agreed to settle the action for a total of $22.75 million, according to a motion for preliminary approval of the settlements filed in the federal district court of Toledo, Ohio (In re Polyurethane Foam Antitrust Litigation, July 27, 2015).

FFP Holdings, Future Foam, Inc., and FXI Holdings are among several defendants in a series of class actions involving an alleged conspiracy to fix prices for chemicals used in the manufacture of polyurethane products.

The indirect purchaser plaintiffs are seeking preliminary approval of proposed settlements under which the three foam manufacturers have agreed to pay a combined $22.75 million to be distributed among eligible class members.

The settlements avoid the uncertainties, risks, and expenses of continued litigation and assure that the benefits reflected in the agreements are obtained by the class. Further, class counsel considers the settlements to be fair, reasonable, adequate, and in the best interests of the class, the motion states.

According to the memorandum filed in support of the plaintiffs’ motion, the proposed settlements were reached after years of intensive discovery and extensive arm’s-length negotiations, some of which were held with a private mediator.

The law favors the settlement of suits to minimize the litigation expenses of the parties and reduce the strain on judicial resources. Furthermore, the settlements provide substantial cash benefits for the settlement class and will strengthen the plaintiffs’ bargaining position with respect to the remaining non-settling defendants.

In April 2014, the court certified a class defined as follows: all persons or entities in Alabama, Arizona, California, Colorado, the District of Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, West Virginia, and Wisconsin who purchased products containing flexible polyurethane foam, not for resale, which were manufactured, produced, or supplied by the defendants from January 1, 1999 to the present.

Attorneys: Marvin A. Miller (Miller Law LLC) for the Indirect Purchaser Class. Michael D. Mustard (Barnes & Thornburg LLP) for FFP Holdings LLC. Michael Steinberg (Sullivan & Cromwell LLP) for FXI Holdings, Inc. Edward G. Warin (Kutak Rock, LLP) for Future Foam, Inc.

Companies: FFP Holdings LLC; Future Foam, Inc.; FXI Holdings, Inc.

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