On May 15 a federal district court judge trebled a $400 million verdict in a class action in which customers had alleged that The Dow Chemical Company fixed prices for the chemical urethane. The $1.2 billion award, by U.S. District Judge John Lungstrum in Kansas City, Kansas, was by far the largest this year as of press time; the runner-up may be a $524 million verdict in April against a Nevada insurance company accused of failing to supervise the doctor at the center of a hepatitis C outbreak.
The plaintiff class of direct purchasers, led by Cohen Milstein Sellers & Toll; Fine, Kaplan and Black; Freedman Boyd Hollander Goldberg Urias & Ward; and Kellogg, Huber, Hansen, Todd, Evans & Figel, also defeated Dow's bid to decertify the class. Dow, looking to David Bernick at Boies, Schiller & Flexner and Hamilton Loeb at Paul Hastings, tried to make use of a March 27 decision by the U.S. Supreme Court in Comcast Corp. v. Behrend. In that decision, the justices refused to certify a class of Comcast subscribers who alleged anticompetitive pricing by the company. The court ruled that the plaintiffs' expert witness—the same expert witness used by the Dow plaintiffs—failed to show that damages could be proved on a classwide basis.
But Judge Lungstrum held in his 30-page decision that the Comcast decision didn't apply. In the Dow case, trial testimony had been limited to a single theory of impact—overcharges due to price-fixing; and Lungstrum found that the plaintiffs' expert had provided a proper causal link between the direct purchasers' theory of liability and the classwide impact.
Dow contends that the verdict can't stand because the claim was not upheld by the jury for the full five-year alleged conspiracy, and the same expert's model upon which the claim is based has been rejected by a Kansas jury and the Supreme Court in Comcast.
For plaintiff Direct Purchaser Class:
Cohen Milstein Sellers & Toll: Richard Koffman, Kit Pierson, and associate Sharon Robertson. (Robertson is in New York; and the rest are in Washington, D.C.) The firm was co–lead counsel.
Fine, Kaplan and Black: Paul Costa, Gerard Dever, Matthew Duncan, Roberta Liebenberg, and Donald Perelman. (They are in Philadelphia.) The firm was co–lead counsel.
Freedman Boyd Hollander Goldberg Urias & Ward: Joseph Goldberg. (He is in Albuquerque.) Goldberg was co–lead trial counsel.
Kellogg, Huber, Hansen, Todd, Evans & Figel: Rebecca Beynon, Michael Guzman, and associates Alexander Edelson, Michael Nemelka, and Justin Presant. (They are in Washington, D.C.) Guzman was co–lead trial counsel.
For defendant The Dow Chemical Company (Midland, Michigan):
In-House: Managing counsel Lynn Looby.
Boies, Schiller & Flexner: David Bernick, Scott Grant, and associate Gary Studen. (Bernick and Studen are in New York; Grant is in Washington, D.C.) Bernick has represented Dow on a variety of matters and was retained for this matter shortly after joining Boies Schiller.