Class Certification: Chamber of Commerce urges rehearing of Dow Chemical $1.06B judgment

Citing a conflict with U.S. Supreme Court precedent on class certification, the U.S. Chamber of Commerce requested that New York’s Tenth Circuit rehear the Dow Chemical Corp. appeal of the $1.06B price-fixing judgment against the company.

The judgment was in a case based on allegations that Dow, Bayer, BASF, Huntsman and Lyondell conspired in a scheme to price-fix polyether polyol products used in the manufacturing of a foam that is used to make cushions and some wood products. Dow was the only company fighting the conspiracy claim, after other defendants agreed to settlements.

Dow argued on appeal that there was no evidence to support the damages calculation and did not have access to the underlying damages calculations. Dow claimed that the plaintiffs did not constitute a class because conspiracy and injury to the class members could not be proven through shared evidence.

The Chamber of Commerce argued that the appeal panel was incorrect in rejecting the appeal, in which Dow claimed that the price-fixing did not affect all customers equally. The appeal panel found that the price-fixing affected all market participants, impacting the participants as a class. The appeals court upheld the ruling.

The Chamber of Commerce’s brief argued that the appeal panel’s decision is in conflict with a number of courts’ decisions regarding class certification, including the high court’s Wal-Mart v. Dukes decision. The brief explained that the panel’s decision widens the scope of a class and allows any conspiracy to be certified as a class action suit, and denies defendants the opportunity to present individualized defenses showing that not all class members suffered harm.

The Chamber of Commerce contextualizes this in the broader terms of the economy, stating “it is essential to the strength of our economy – and to all who invest or are employed in it – that the class action device not be used to deprive defendants of their ability to litigate their statutory defenses to individual claims.”