Cohen Milstein served as co-lead counsel on behalf of a class of direct purchasers of chemicals used to make many everyday products, from mattress foam to carpet cushion, who were overcharged as a result of a nationwide price-fixing conspiracy. On February 25, 2016, Cohen Milstein reached an agreement with The Dow Chemical Company to settle the case against Dow for $835 million.
In a July 29, 2016 order approving the settlement, U.S. District Judge John W. Lungstrum commended Plaintiffs’ counsel:
"Hundreds of millions were at stake here, and counsel achieved incredible success on the merits of the claims, earning a verdict of over $400 million that would be trebled and eventually obtaining settlements totaling over $974 million (much more than double the amount of damages). Liability on these claims was far from certain, and thus the case presented a great deal of risk, as counsel was required to advance all expenses and attorney time to litigate a hard fought case against highly experienced opposing counsel hired by a defendant with ample resources. The case was not settled pretrial for a percentage of the damages, nor was it settled on appeal for a steep discount from the judgment amount; instead counsel litigated the case to a verdict and an appellate affirmance. Counsel achieved this verdict and judgment without the benefit of a government investigation or prosecution of members of the alleged antitrust conspiracy. The subject matter was complex and not easily digestible by a lay jury, and there were no personal injuries to heighten sympathy. In almost 25 years of service on the bench, this Court has not experienced a more remarkable result."
Combined with earlier settlements obtained from Bayer, Huntsman, and BASF, the Dow settlement pushed the total settlements in the case to $974 million.
This historic antitrust class action began when Plaintiffs alleged that Defendants (Dow Chemical Company, Huntsman International LLC, BASF, Lyondell Chemical Company, and Bayer) conspired to fix prices for certain chemicals used in the manufacture of polyurethanes. Polyurethanes are used to manufacture many types of products that consumers encounter every day, from foam bedding and carpet padding to refrigerator insulation and skateboard wheels.
On February 20, 2013, after a five-week jury trial before the U.S. District Court for the District of Kansas, Cohen Milstein secured a jury verdict against Dow, after trebling, of more than $1.2 billion. The judgment was later amended to take prior settlements into account, yielding a final judgment of approximately $1.06 billion. This was the largest jury verdict in the country that year and one of the largest jury verdicts ever in a price-fixing case.
On September 29, 2014, the Tenth Circuit affirmed the District Court’s judgment, thereby rejecting Dow’s challenges to the order for class certification, the refusal to decertify the class, the admission of Plaintiffs’ expert’s statistical testimony, the sufficiency of the evidence, and the award of damages.
Dow filed a bid for an en banc rehearing in October 2014. On November 7, 2014, the Tenth Circuit declined Dow’s bid for a full-panel rehearing of the court’s decision to affirm the $1.06 billion jury verdict.
Subsequently, Dow filed a petition for Supreme Court review in March 2015, arguing once again that the case was unsuitable for class treatment. In February 2016, while Dow’s petition for certiorari was pending, Cohen Milstein reached an agreement with Dow to settle the case for $835 million. Including prior settlements, the case settled for a total of $974 million.