A Tenth Circuit panel of judges has upheld a $1.2 billion verdict and judgment against Dow Chemical for its role in a price-fixing conspiracy that involved urethane chemical products. Dow Chemical Co. v. Seegott Holdings, Inc., No. 13-3215 (10th Cir. Sept. 29, 2014) ( opinion here).
More than any other court of appeals decision in recent memory, the ruling should help blunt aggressive attacks on class actions in which the plaintiff class seeks an award of damages.
Class treatment prevails
The panel rejected Dow's four main arguments on appeal:
- that the district court shouldn't have certified the case as a class action,
- that statistical evidence of damages lacked a reliable basis,
- that plaintiffs failed to prove the price-fixing conspiracy succeeded, and
- that the damages award violated Dow's seventh amendment right to trial by jury.
The court distinguished Comcast Corp. v. Behrend, 133 S. Ct. 1346 (2013) and Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), holding that neither decision required the conclusion that individual issues predominated in the case against Dow Chemical and that the district court acted within its discretion in ruling otherwise.
The panel's treatment of the attacks on damages also stressed the broad discretion that district courts have in admitting expert testimony about statistics and other matters involving expert knowledge.
Kansas City trial
The jury trial took place before U.S. District Judge John Lungstrum in Kansas City, Kansas. It ended in early 2013. Blawgletter's friend and colleague Joe Goldberg served as lead trial counsel for the class.