Dow Chemical Loses $400 Million Price-Fixing Trial

Wednesday, 20 Feb 2013 07:39 PM

 

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Dow Chemical Co. conspired with other companies to fix urethane product prices and must pay buyers of those products more than $400 million in damages, a federal jury in Kansas City, Kansas, ruled.

A jury of five women and two men returned their verdict Wednesday after a trial that started Jan. 23 before U.S. District Judge John W. Lungstrum.

The plaintiffs in the case, buyers of urethane-derived products, asked for $1.125 billion in damages. The jury’s award was $400,049,039.

Linda Lim, a spokeswoman for Dow, didn’t immediately reply to an e-mailed request for comment on the jury award.

The case started in 2005 with allegations that Dow plotted with BASF SE, Huntsman International LLC and Lyondell Chemical Co. in violation of federal law. Only Midland, Michigan-based Dow didn’t settle.

At the heart of the suit were urethane-based products used in the automotive, construction, appliance and furniture industries.

“What Dow did was wrong,” plaintiffs’ lawyer Joseph Goldberg told the jury Tuesday in his closing arguments. “It colluded with its competitors and entered into a price-fixing conspiracy.”

Defense attorney David Bernick disputed that claim in his own summation.

“What kind of cartel is it where everybody is doing exactly what they would be doing otherwise?” the Dow lawyer asked jurors.

Conversation, Agreement

“There’s a difference between a conversation and an agreement, this is key,” he said, denying his client ever made a price-fixing pact.

Dow, BASF, Huntsman and Lyondell were first sued in federal court in New Jersey. The case was transferred to a multidistrict docket in Kansas City as part of litigation involving more than 60 plaintiffs, some of whom later opted out of the group litigation.

Dow denied the price-fixing allegations, maintaining there were legitimate business reasons for the evidence the plaintiffs cited as proof of their claims.

Bernick, the Dow lawyer, told jurors in his closing that product purchasers included industrial companies.

“When they don’t want to raise prices and we want to raise prices, they tell us to pound sand,” he said, reiterating his client’s stance that no conspiracy existed.

‘Empty’ Case

The purchasers’ case was “empty of truth, empty of facts and empty of fairness,” said Bernick, a partner in New York-based Boies Schiller & Flexner LLP.

“An agreement can be just a wink and a nod,” the buyers’ lawyer, Joseph Goldberg, told the jury. He said such schemes aren’t agreed upon in corporate board rooms. They’re hatched in back rooms, on golf courses and over cocktails, he said.

“If it quacks like a duck and it walks like a duck, it can be a duck, even if you don’t see it,” The lawyer said. He called the evidence of a price-fixing conspiracy “overwhelming.”

Goldberg is a member of Albuquerque, New Mexico-based Freedman Boyd Hollander Goldberg Urias & Ward PA.

The case is In re Urethane Antitrust Litigation, 04-md- 1616, U.S. District Court, District of Kansas (Kansas City).

© Copyright 2014 Bloomberg News. All rights reserved.

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