In In re: Urethane Antitrust Litigation,Kansas federal jury awarded $400 million to a class of purchasers in multidistrict litigation against the Dow Chemical Co. and other chemical manufacturers, finding the companies conspired to fix the price of urethane foam, used in many types of cushions. The litigation, which was consolidated in 2008, accused chemical companies Dow, Bayer AG, BASF SE, Huntsman International LLC and Lyondell Chemical Co. of orchestrating a scheme to fix prices of polyether polyol products that are used to manufacture urethane foam.
The day before the trial in this case was to begin, in a memorandum filed under seal, Dow asked the court to decertify the class. Dow contended the plaintiffs’ common evidence wouldn’t prove that each class member was impacted by the alleged collusion, and that the plaintiffs’ expert had assumed such impact rather than actually analyzing it. The company also said the case had inadequate class representatives. Furthermore, after the trial had commenced, but prior to the jury’s verdict, Dow filed a motion asking for a judgment in its favor. Dow claimed that the plaintiffs had failed to prove the existence of a conspiracy or that they had been affected by the alleged conspiracy; failed to prove an “essential element” of their fraudulent concealment claim; and hadn’t presented evidence concerning their urethane chemical purchases.
Despite these motions, after the conclusion of a five-week trial, the jury found that Dow had conspired to fix, raise or stabilize the prices of urethane chemicals, which caused the class of foam-product manufacturers to spend more on the chemicals than they otherwise would have, and awarded plaintiffs $400 million in damages.