Denver, Colorado — Dow’s bid to strike out a Class Action ruling for price-fixing urethanes based on the assertion the complainants do not constitute a class is being challenged in court.
As reported in Urethanes Technology International magazine, Dow was fined $1.1bn for its part in a cartel to fix the price of urethanes between 1999 and 2003. Other companies including Bayer AG, BASF SE and Huntsman International were named in the suit (04-md-1616). The other companies reached a settlement out of court.
In a document (01019203268) dated 14 February 2014 and filed with the 10th Circuit Appeals Court in Denver, the companies which claim to have been cheated by the cartel reject Dow’s attempt to overturn the earlier ruling in the Appeals Court as well as the fine imposed by a lower court in Kansas. Their submission suggests Dow’s request lacks substance and is “little more than a sufficiency of evidence challenge to the jury’s verdict.”
The document describes the motion to strike out the action is described as “dilatory, meritless” and, the document stated: “It failed to preserve many of the arguments [the company made] here.”
Such a move would be “unprecedented,” said the document.
“Dow does not deny that sufficient evidence establishes it participated in a multi-year conspiracy to fix prices,” the document stated.
It continued: “The inference of class wide impact is “particularly strong” where, as here, there is a top-down conspiracy involving senior executives” each of whom has final pricing authority.
The document continues that the cartel announced numerous “lock-step increases” in an oligopolistic market” and thirdly, “testimony and exhibits showed that the conspirators believed the price increases were successful.”
In evidence for the companies claiming against Dow, James McClave, who examined more than a million transactions the court heard, showed there was ”general and systematic overcharges.”
McClave found that out of the million transactions, 98% overpaid. One customer cited in the court papers, Quabaug, was overcharged more than $45,000.
Case 04-md-1616 continues
