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In re Urethane Antitrust Litig.

United States District Court for the District of Kansas

May 15, 2013, Decided; May 15, 2013, Filed

MDL No. 1616; Case No. 04-1616-JWL



In this multi-district class action, the claim by plaintiff class that defendant Dow Chemical Company ("Dow") conspired with other manufacturers to fix prices for certain urethane chemical products, in violation of the Sherman Act, 15 U.S.C. § 1, was tried to a jury over a period of four weeks. On February 20, 2013, the jury returned a verdict in plaintiffs' favor. Specifically, the jury found that Dow participated in a price-fixing conspiracy; that the conspiracy caused plaintiff to pay more for chemicals than they would have absent the conspiracy; that such overpayments did not include any overpayments prior to November 24, 2000 (the  [*29] date four years prior to the filing of this suit); and that plaintiffs suffered damages in the amount of $400,049,039.00.

This matter now comes before the Court on Dow's motion to decertify the class (Doc. # 2706) and its post-trial motion for judgment as a matter of law or for a new trial (Doc. # 2808). For the reasons set forth below, the Court denies both motions. The Court also modifies the class certified in this case to exclude purchases in 2004.

I. Motion to Decertify the Class

A. Untimely Motion

On July 28, 2008, the Court issued its order certifying a class in this case. On January 22, 2013—one day before the start of trial—Dow filed a motion to decertify the class. The Court took the motion under advisement and granted leave to the parties to supplement the motion and plaintiffs' opposition in connection with the briefing on Dow's post-trial motion.1

Dow purports to base its motion to decertify on events that have occurred since the Court's  [*30] 2008 certification order. Dow's arguments are based primarily on the opinions of Dr. James McClave, plaintiffs' damages expert, who created a model purporting to show that prices paid during the alleged conspiracy period exceeded those prices that would have been paid absent a price-fixing conspiracy. Dow has had Dr. McClave's expert report, however, since April 2011. All of the issues raised in Dow's original brief in support of its motion to decertify could have been raised at least a year before trial. Dow has not offered any reason why it could not have filed its motion much earlier and why it instead filed its motion literally on the eve of trial. Reconsideration of the Court's certification order at that time or even post trial would cause severe prejudice to plaintiffs, who prepared for a long and complex trial at great expense and who might find it much more difficult to assert individual claims at this time. Accordingly, except with respect to issues based on events occurring at trial or based on the Supreme Court's recent Comcast opinion, the Court denies this motion as untimely. See, e.g., Gortat v. Capala Bros., Inc., 2012 U.S. Dist. LEXIS 47066, 2012 WL 1116495, at *4 (E.D.N.Y. Apr. 3, 2012) (late  [*31] stage of litigation weighs against decertification; granting the eleventh-hour motion to decertify, where facts were known for well over a year, would prejudice class members who have not taken independent steps to protect their rights); In re Sulfuric Acid Antitrust Litig., 847 F. Supp. 2d 1079, 1083 (N.D. Ill. 2011) (reconsideration of four-year-old certification order two months before trial after reassignment of the case to a new judge was inappropriate where issues could have been raised at the time of the original order; rescinding order would cause undue harm to plaintiffs); Easterling v. Connecticut Dept. of Corr., 278 F.R.D. 41, 44 (D. Conn. 2011) ("A court should be wary of revoking a certification order at a late stage in the litigation process.") (citing Woe v. Cuomo, 729 F.2d 96, 107 (2d Cir. 1984)); In re Scrap Metal Antitrust Litig., 2006 U.S. Dist. LEXIS 75873, 2006 WL 2850453, at *20 (N.D. Ohio Sept. 30, 2006) ("request to decertify the Plaintiff Class literally on the eve of trial was inappropriate and untimely").2

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2013 U.S. Dist. LEXIS 69784 *; 2013-1 Trade Cas. (CCH) P78,386; 2013 WL 2097346

IN RE: URETHANE ANTITRUST LITIGATION. This document relates to: The Polyether Polyol Cases

Subsequent History: Motion granted by Carpenter Co. v. BASF SE (In re Urethane Antitrust Litig.), 2013 U.S. Dist. LEXIS 105433 (D. Kan., July 25, 2013)

Amended by, in part, Motion granted by, in part, Motion denied by, in part, Motion granted by In re Urethane Antitrust Litig., 2013 U.S. Dist. LEXIS 105313 (D. Kan., July 26, 2013)

Prior History: In re Urethane Antitrust Litig., 2013 U.S. Dist. LEXIS 3166 (D. Kan., Jan. 8, 2013)


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