This document summarizes a conference on the Dow urethane antitrust litigation. It provides background on the multi-district litigation and class action lawsuits against manufacturers of urethane products for price fixing between 1999-2004. Dow was the only defendant that did not settle and proceeded to a four week jury trial. The jury found Dow participated in a price-fixing conspiracy and awarded $1.2 billion in damages to the plaintiff class. Dow filed numerous post-trial motions challenging the conspiracy evidence, class certification, and joint liability, all of which were denied. The case raises issues around what constitutes sufficient evidence of conspiracy and the impact of the Supreme Court's Comcast decision on class certification.
Law 531 t academic adviser .....tutorialrank.comladworkspaces
The document provides the answers to an assessment on legal terminology related to the court case process. It includes definitions for terms like mediation, affirmation, rejoinder, impeachment, defendant, sequestered, deposition, and default. The assessment also tests understanding of jurisprudential thought and antitrust law concepts through multiple choice questions.
In today’s litigation and regulatory climate, class actions alleging statutory violations can pose some of the most persistent and troublesome threats to lenders...
The document provides objectives and topics to be covered in an organizational leadership class. The objectives include applying biblical principles to the workplace, examining effective leadership styles, researching leadership theories, analyzing leader-follower relationships, managing performance issues, and identifying leadership traits. The document also asks questions about resistance to change, change process theories, guidelines for implementing change, desirable vision characteristics, and differences between mission, vision, and values.
Este documento discute estrategias para mejorar el cuidado y alimentación de lechones. Explica que usar alimentos altamente digeribles y ricos en proteínas lácteas puede ayudar a controlar la variabilidad de peso de los lechones al destete. También recomienda usar programas de alimentación globales en lugar de alimentos individuales de diferentes orígenes. Además, discute los beneficios del creep feeding después de las dos primeras semanas de lactación para ayudar a los lechones a adaptarse a una dieta sólida.
presentación web 2.0, 3.0 y redes sociales01238788
Este documento resume la evolución de la web desde la Web 1.0 hasta la Web 3.0 y las redes sociales. Explica las características de la Web 2.0 que permiten a los usuarios participar más activamente. También describe las leyes mexicanas que regulan el uso de las redes sociales y concluye que estas deben usarse responsablemente.
El documento habla sobre la inmigración. Define la inmigración como la entrada de personas de otros lugares a un país. Explica que los inmigrantes buscan mejorar su nivel de vida y supervivencia. También menciona las causas comunes de la inmigración como razones económicas, políticas, religiosas o desastres naturales. Finalmente, discute los beneficios económicos de la inmigración para un país y los desafíos de la convivencia intercultural como la xenofobia.
Class Actions: Insurance Related Claims
by Thomas F. Segalla
Whether prosecuting or opposing a motion for class certification, within the context of insurance related claims, there are certain principles that are critical to determining the allegations that are necessary to successfully assert such claims and the nature of any challenge to a motion to certify the punitive class. As the court noted, in the case of Deborah Mahon v. Chicago Title Insurance Co.:[1]
Law 531 t academic adviser .....tutorialrank.comladworkspaces
The document provides the answers to an assessment on legal terminology related to the court case process. It includes definitions for terms like mediation, affirmation, rejoinder, impeachment, defendant, sequestered, deposition, and default. The assessment also tests understanding of jurisprudential thought and antitrust law concepts through multiple choice questions.
In today’s litigation and regulatory climate, class actions alleging statutory violations can pose some of the most persistent and troublesome threats to lenders...
The document provides objectives and topics to be covered in an organizational leadership class. The objectives include applying biblical principles to the workplace, examining effective leadership styles, researching leadership theories, analyzing leader-follower relationships, managing performance issues, and identifying leadership traits. The document also asks questions about resistance to change, change process theories, guidelines for implementing change, desirable vision characteristics, and differences between mission, vision, and values.
Este documento discute estrategias para mejorar el cuidado y alimentación de lechones. Explica que usar alimentos altamente digeribles y ricos en proteínas lácteas puede ayudar a controlar la variabilidad de peso de los lechones al destete. También recomienda usar programas de alimentación globales en lugar de alimentos individuales de diferentes orígenes. Además, discute los beneficios del creep feeding después de las dos primeras semanas de lactación para ayudar a los lechones a adaptarse a una dieta sólida.
presentación web 2.0, 3.0 y redes sociales01238788
Este documento resume la evolución de la web desde la Web 1.0 hasta la Web 3.0 y las redes sociales. Explica las características de la Web 2.0 que permiten a los usuarios participar más activamente. También describe las leyes mexicanas que regulan el uso de las redes sociales y concluye que estas deben usarse responsablemente.
El documento habla sobre la inmigración. Define la inmigración como la entrada de personas de otros lugares a un país. Explica que los inmigrantes buscan mejorar su nivel de vida y supervivencia. También menciona las causas comunes de la inmigración como razones económicas, políticas, religiosas o desastres naturales. Finalmente, discute los beneficios económicos de la inmigración para un país y los desafíos de la convivencia intercultural como la xenofobia.
Class Actions: Insurance Related Claims
by Thomas F. Segalla
Whether prosecuting or opposing a motion for class certification, within the context of insurance related claims, there are certain principles that are critical to determining the allegations that are necessary to successfully assert such claims and the nature of any challenge to a motion to certify the punitive class. As the court noted, in the case of Deborah Mahon v. Chicago Title Insurance Co.:[1]
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
Paralegal Ethics Final Conflict of Interest BriefMark Smith
The memorandum summarizes the case Harmon T. Sharp V. Next EntertainmentINC (2008) 163 Cal.App.4th 410. The case involved a lawsuit filed by reality TV employees against production companies for wage and labor violations. The employees were represented by attorneys paid for by the Writers Guild of America (WGA). The defendant filed a motion to disqualify plaintiffs' counsel due to conflict of interest between the WGA and plaintiffs. The trial court denied the motion. On appeal, the court found that public policy concerns and conflict waivers signed by plaintiffs were sufficient to overcome the conflict and upheld the trial court's ruling.
BoyarMiller – Navigating Your Company through Spoliation Claims and Strategie...BoyarMiller
A Penny Saved is a Penny Earned:
Navigating Your Company through Spoliation Claims and Strategies to Maximize Recovering Attorneys’ Fees
presented by:
Chris Hanslik, Craig Dillard & Matt Veech
This order from the United States District Court for the Northern District of Georgia addresses sanctions against Hi-Tech Pharmaceuticals, Inc., Jared Wheat, Sean Smith, and Dr. Terrell Mark Wright for contempt of previous court orders. The court had previously found the defendants in contempt for making unsubstantiated advertising claims about weight loss products in violation of injunctions against deceptive marketing practices. At an evidentiary hearing, the court considered evidence to determine the appropriate nature and amount of sanctions. In this order, the court issues findings of fact regarding the defendants' roles and responsibilities at Hi-Tech, and reserves judgment to issue conclusions of law on the sanctions imposed.
Proskauer's May 2015 Antitrust Update for In-House Counsel presentation to the ABA Section of Antitrust Law, Corporate Counseling Committee.
Topics: Class Action Updates and Predictions; Health Care Agency Review; Merger Review Updates in the US and Abroad; Network Neutrality - FCC Authority & Antitrust Law
Presenters: Christopher Ondeck, Alicia Batts, John Ingrassia, Alyse Stach
The Court of Federal Claims rejected the government's arguments to dismiss a pre-award bid protest filed by Jacobs Technology Inc. against the U.S. Special Operations Command. The court found that it had jurisdiction over Jacobs' challenge to the agency's decision to resolicit the contract, and that the challenge was ripe for review. The court also determined that Jacobs had standing as an interested party. The government's arguments conflated different grounds for jurisdiction and were contradicted by both the plain language of the Tucker Act and precedent.
3. the areeda-turner test for exclusionary pricing. a critical journalMatias González Muñoz
This document summarizes critiques of the Areeda-Turner test for predatory pricing that was proposed in 1975 and widely adopted by courts. It discusses three main critiques: 1) average variable cost is a poor surrogate for short-run marginal cost in assessing below-cost pricing; 2) the test is underdeterrent in markets with high fixed costs; and 3) short-run measures fail to address strategic predatory pricing. It also outlines how the test has made it extremely difficult for plaintiffs to prove predatory pricing and analyzes subsequent efforts to address criticisms, with the test remaining very favorable to defendants.
This article examines how US courts have interpreted the essential facilities doctrine in competition law cases. The doctrine generally holds that an entity controlling a facility essential for competition must provide access to competitors on reasonable terms. However, US courts have applied the doctrine very narrowly. To succeed, plaintiffs must show the defendant's denial of access completely eliminates competition, not just provides advantages. Courts also reject claims if competitors can achieve some market share without the facility or can reasonably duplicate it. The author analyzes relevant US case law and concludes courts are reluctant to use the essential facilities doctrine to require sharing intellectual property. A similarly narrow interpretation may be emerging in the EU as well.
(1) The document discusses costs orders in multi-party litigation where a claimant succeeds against some defendants but not others. It outlines the criteria courts consider when deciding whether to make a "Bullock order" or "Sanderson order" regarding costs.
(2) The key criteria are: whether the successful defendant was sued in the alternative; the connectedness of causes of action; the reasonableness of joining defendants; and whether defendants blamed each other. Reasonable claimant conduct and alternative claims increase the likelihood of a costs order.
(3) The document also discusses factors like insolvency that influence the type of order made, and provides guidance to practitioners on reasonably joining defendants to avoid costs risks.
FT Week 7 Crital Thinking in the Legal EnvironmentFelicia Thomas
The document provides an analysis of the Liebeck v. McDonald's Corporation and Pearson v. Custom Cleaners cases. It summarizes the key facts and legal issues of each case. In Liebeck, the plaintiff was severely burned by McDonald's coffee and sued for product liability. In Pearson, the plaintiff sued a dry cleaners for $54 million over lost pants. The document analyzes the applicable laws in each case and whether the court decisions were appropriate. It also discusses the ethical issues raised, such as punitive damages and economic theories of harm.
This order grants final approval of a class action settlement between Facebook users and Facebook. The settlement involves small cash payments to users who filed claims, totaling $20 million, as well as changes to Facebook's privacy policies. While some object that the settlement does not do enough, the court finds the settlement is fair given the risks of continued litigation and that class members likely suffered little harm. The changes to Facebook's policies provide meaningful benefits to users.
This document is a memorandum of decision and order from a federal district court case between David Elliot, Chris Gillespie, and Google Incorporated. It provides background on the case, which concerns the registration and alleged genericness of Google's trademarks. It discusses the parties' cross-motions for summary judgment on whether the trademarks have become generic. The court addresses the key legal issues, including that verb usage does not necessarily render a trademark generic, and that the primary test is consumer perception of the mark's primary significance. The court also rules on the admissibility of expert evidence before it will consider whether either party is entitled to summary judgment.
The Case for Enforcing Adhesive Arbitration Agreements --With Particular Consideration of Class Actions and Arbitration Fees. Journal of American Arbitration, Vol. 5, No. 2, p. 251.
SB 411, the Asbestos Bankruptcy Trust Claims Transparency Act, imposes new disclosure requirements on asbestos claimants regarding claims filed against asbestos bankruptcy trusts. It aims to increase transparency between asbestos bankruptcy trusts and civil litigation. Under the new law, asbestos plaintiffs must disclose all past and potential asbestos trust claims at least 120 days before trial. They must also make all trust claim materials available to defendants. Failure to comply can result in losing a trial date. For non-cancer asbestos claims filed after June 8, 2015, there are also new evidentiary and medical history requirements that make bringing a claim more difficult. While the law removes some of the harshest original provisions, it remains challenging for asbestosis
Will a Fourth State Reject Product Maker-Friendly Test?SharpLaw
Three state supreme courts recently declined to throw out a plaintiff friendly test for determining defects in product liability cases, and the framework for strict liability claims that often goes with it.
Will a rollover widow's case in Nevada add a fourth
The document discusses a recent court case, Anjum v. John Doe, regarding a summary judgment motion brought by an insurer, State Farm, in a personal injury lawsuit. The court ruled that State Farm could bring a three-day summary judgment motion requiring oral testimony from the injured plaintiff and competing expert witnesses. While not expressly stated in the ruling, this decision effectively allows the parties to have a mini-trial on liability issues without a jury. The author argues this sets an undesirable precedent that favors insurers over injured plaintiffs and undermines the goal of reducing litigation costs.
Is the Concepcion Case a Pandora's Box for Class Arbitration?Shahram Shirkhani
Class arbitration is when a group of plaintiffs join together as claimants against an entity. This will happen more commonly when a group of consumers is affected by a defective product that may cause some type of loss to an individual. Know the Concepcion Case.
Guarding Your Client's Valuation from Attack--Dos and Don'ts for Requesting, ...PYA, P.C.
During an AHLA webinar series roundtable discussion, “Guarding Your Client’s Valuation from Attack—Dos and Don’ts for Requesting, Reviewing, Using, and Discarding FMV Opinions,” PYA Principal Carol Carden joined other legal experts to explore the practical issues for counsel to consider when balancing the arguments for scrutinizing valuation reports with the arguments for ensuring valuator independence.
This document summarizes a research paper that proposes a roadmap to optimize statutory construction adjudication of complex payment disputes in Australia. It begins by reviewing criticisms of the current adjudication system in dealing with large, legally and technically complex claims. It then evaluates measures of an effective dispute resolution system, including procedural fairness, accessibility, speed, cost-effectiveness, informality and finality. The document examines the evolution of security of payment legislation across Australian states, noting recommendations to improve adjudication of complex claims. Finally, it proposes using the Queensland model as a benchmark and incorporating additional improvements, such as criteria for timeframes for complex claims, appointment of qualified adjudicators, and a merits review system, to develop an optimized process.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
Paralegal Ethics Final Conflict of Interest BriefMark Smith
The memorandum summarizes the case Harmon T. Sharp V. Next EntertainmentINC (2008) 163 Cal.App.4th 410. The case involved a lawsuit filed by reality TV employees against production companies for wage and labor violations. The employees were represented by attorneys paid for by the Writers Guild of America (WGA). The defendant filed a motion to disqualify plaintiffs' counsel due to conflict of interest between the WGA and plaintiffs. The trial court denied the motion. On appeal, the court found that public policy concerns and conflict waivers signed by plaintiffs were sufficient to overcome the conflict and upheld the trial court's ruling.
BoyarMiller – Navigating Your Company through Spoliation Claims and Strategie...BoyarMiller
A Penny Saved is a Penny Earned:
Navigating Your Company through Spoliation Claims and Strategies to Maximize Recovering Attorneys’ Fees
presented by:
Chris Hanslik, Craig Dillard & Matt Veech
This order from the United States District Court for the Northern District of Georgia addresses sanctions against Hi-Tech Pharmaceuticals, Inc., Jared Wheat, Sean Smith, and Dr. Terrell Mark Wright for contempt of previous court orders. The court had previously found the defendants in contempt for making unsubstantiated advertising claims about weight loss products in violation of injunctions against deceptive marketing practices. At an evidentiary hearing, the court considered evidence to determine the appropriate nature and amount of sanctions. In this order, the court issues findings of fact regarding the defendants' roles and responsibilities at Hi-Tech, and reserves judgment to issue conclusions of law on the sanctions imposed.
Proskauer's May 2015 Antitrust Update for In-House Counsel presentation to the ABA Section of Antitrust Law, Corporate Counseling Committee.
Topics: Class Action Updates and Predictions; Health Care Agency Review; Merger Review Updates in the US and Abroad; Network Neutrality - FCC Authority & Antitrust Law
Presenters: Christopher Ondeck, Alicia Batts, John Ingrassia, Alyse Stach
The Court of Federal Claims rejected the government's arguments to dismiss a pre-award bid protest filed by Jacobs Technology Inc. against the U.S. Special Operations Command. The court found that it had jurisdiction over Jacobs' challenge to the agency's decision to resolicit the contract, and that the challenge was ripe for review. The court also determined that Jacobs had standing as an interested party. The government's arguments conflated different grounds for jurisdiction and were contradicted by both the plain language of the Tucker Act and precedent.
3. the areeda-turner test for exclusionary pricing. a critical journalMatias González Muñoz
This document summarizes critiques of the Areeda-Turner test for predatory pricing that was proposed in 1975 and widely adopted by courts. It discusses three main critiques: 1) average variable cost is a poor surrogate for short-run marginal cost in assessing below-cost pricing; 2) the test is underdeterrent in markets with high fixed costs; and 3) short-run measures fail to address strategic predatory pricing. It also outlines how the test has made it extremely difficult for plaintiffs to prove predatory pricing and analyzes subsequent efforts to address criticisms, with the test remaining very favorable to defendants.
This article examines how US courts have interpreted the essential facilities doctrine in competition law cases. The doctrine generally holds that an entity controlling a facility essential for competition must provide access to competitors on reasonable terms. However, US courts have applied the doctrine very narrowly. To succeed, plaintiffs must show the defendant's denial of access completely eliminates competition, not just provides advantages. Courts also reject claims if competitors can achieve some market share without the facility or can reasonably duplicate it. The author analyzes relevant US case law and concludes courts are reluctant to use the essential facilities doctrine to require sharing intellectual property. A similarly narrow interpretation may be emerging in the EU as well.
(1) The document discusses costs orders in multi-party litigation where a claimant succeeds against some defendants but not others. It outlines the criteria courts consider when deciding whether to make a "Bullock order" or "Sanderson order" regarding costs.
(2) The key criteria are: whether the successful defendant was sued in the alternative; the connectedness of causes of action; the reasonableness of joining defendants; and whether defendants blamed each other. Reasonable claimant conduct and alternative claims increase the likelihood of a costs order.
(3) The document also discusses factors like insolvency that influence the type of order made, and provides guidance to practitioners on reasonably joining defendants to avoid costs risks.
FT Week 7 Crital Thinking in the Legal EnvironmentFelicia Thomas
The document provides an analysis of the Liebeck v. McDonald's Corporation and Pearson v. Custom Cleaners cases. It summarizes the key facts and legal issues of each case. In Liebeck, the plaintiff was severely burned by McDonald's coffee and sued for product liability. In Pearson, the plaintiff sued a dry cleaners for $54 million over lost pants. The document analyzes the applicable laws in each case and whether the court decisions were appropriate. It also discusses the ethical issues raised, such as punitive damages and economic theories of harm.
This order grants final approval of a class action settlement between Facebook users and Facebook. The settlement involves small cash payments to users who filed claims, totaling $20 million, as well as changes to Facebook's privacy policies. While some object that the settlement does not do enough, the court finds the settlement is fair given the risks of continued litigation and that class members likely suffered little harm. The changes to Facebook's policies provide meaningful benefits to users.
This document is a memorandum of decision and order from a federal district court case between David Elliot, Chris Gillespie, and Google Incorporated. It provides background on the case, which concerns the registration and alleged genericness of Google's trademarks. It discusses the parties' cross-motions for summary judgment on whether the trademarks have become generic. The court addresses the key legal issues, including that verb usage does not necessarily render a trademark generic, and that the primary test is consumer perception of the mark's primary significance. The court also rules on the admissibility of expert evidence before it will consider whether either party is entitled to summary judgment.
The Case for Enforcing Adhesive Arbitration Agreements --With Particular Consideration of Class Actions and Arbitration Fees. Journal of American Arbitration, Vol. 5, No. 2, p. 251.
SB 411, the Asbestos Bankruptcy Trust Claims Transparency Act, imposes new disclosure requirements on asbestos claimants regarding claims filed against asbestos bankruptcy trusts. It aims to increase transparency between asbestos bankruptcy trusts and civil litigation. Under the new law, asbestos plaintiffs must disclose all past and potential asbestos trust claims at least 120 days before trial. They must also make all trust claim materials available to defendants. Failure to comply can result in losing a trial date. For non-cancer asbestos claims filed after June 8, 2015, there are also new evidentiary and medical history requirements that make bringing a claim more difficult. While the law removes some of the harshest original provisions, it remains challenging for asbestosis
Will a Fourth State Reject Product Maker-Friendly Test?SharpLaw
Three state supreme courts recently declined to throw out a plaintiff friendly test for determining defects in product liability cases, and the framework for strict liability claims that often goes with it.
Will a rollover widow's case in Nevada add a fourth
The document discusses a recent court case, Anjum v. John Doe, regarding a summary judgment motion brought by an insurer, State Farm, in a personal injury lawsuit. The court ruled that State Farm could bring a three-day summary judgment motion requiring oral testimony from the injured plaintiff and competing expert witnesses. While not expressly stated in the ruling, this decision effectively allows the parties to have a mini-trial on liability issues without a jury. The author argues this sets an undesirable precedent that favors insurers over injured plaintiffs and undermines the goal of reducing litigation costs.
Is the Concepcion Case a Pandora's Box for Class Arbitration?Shahram Shirkhani
Class arbitration is when a group of plaintiffs join together as claimants against an entity. This will happen more commonly when a group of consumers is affected by a defective product that may cause some type of loss to an individual. Know the Concepcion Case.
Guarding Your Client's Valuation from Attack--Dos and Don'ts for Requesting, ...PYA, P.C.
During an AHLA webinar series roundtable discussion, “Guarding Your Client’s Valuation from Attack—Dos and Don’ts for Requesting, Reviewing, Using, and Discarding FMV Opinions,” PYA Principal Carol Carden joined other legal experts to explore the practical issues for counsel to consider when balancing the arguments for scrutinizing valuation reports with the arguments for ensuring valuator independence.
This document summarizes a research paper that proposes a roadmap to optimize statutory construction adjudication of complex payment disputes in Australia. It begins by reviewing criticisms of the current adjudication system in dealing with large, legally and technically complex claims. It then evaluates measures of an effective dispute resolution system, including procedural fairness, accessibility, speed, cost-effectiveness, informality and finality. The document examines the evolution of security of payment legislation across Australian states, noting recommendations to improve adjudication of complex claims. Finally, it proposes using the Queensland model as a benchmark and incorporating additional improvements, such as criteria for timeframes for complex claims, appointment of qualified adjudicators, and a merits review system, to develop an optimized process.
1. In Re URETHANE ANTITRUST LITIGATION
THE DOW VERDICT—LESSONS ON CONSPIRACY,
CLASS CERT., AND COMCAST
ACADEMY OF ANTITRUST LAW
2013 FALL CONFERENCE
The Greenbrier
White Sulphur Springs, West Virginia
October 17, 2013
2. BACKGROUND ON THE URETHANE
ANTITRUST MDL
MDL consolidation of multiple class actions and two direct
actions (56 opt-out plaintiffs) against manufacturers of two
types of urethane products.
Polyester Polyol
Polyether Polyol (“PPP’s”)
Chemicals used individually and systems for production of foam
used in automotive, furniture, and other applications
Prior closed Antitrust Division Investigation 2007
Cases filed in November 2004 and thereafter
Defendants: Bayer AG, Huntsman International LLC, BASF
SE, Lyondell Chemical Co., and Dow Chemical Co.
3. BACKGROUND cont’d
Plaintiffs claimed defendants engaged in price fixing and
market allocation scheme
July 29, 2008 Court certified a class of purchasers of PPP
urethane products & systems from defendants from
January 1, 1999 to December 31, 2004
All defendants except Dow (on polyether cases) settled
Bayer-$55 m (2006)
Huntsman- $33 m (2011)
BASF- $51 m (2011)
Court denied Dow’s summary judgment motion on the
class claims. In re Urethane Antitrust Litig., 2012 WL
6610878 (D. Kan. Dec. 18, 2012)
4. SUMMARY JUDGMENT ISSUES
Initial summary judgment order found evidence
sufficient to create fact issues for trial:
Existence of conspiracy involving Dow 1999-2003
Affirmative acts of concealment to toll SOL’s
(pretextual & false reasons for price increases)
Fraudulent concealment requirement of due diligence
Second summary judgment motion denied
Pre-class period conspiracy evidence 1994-1998
Individual plaintiff Lubrizol (contract price increase
limitations) and Vitafoam Canada (5th Amendment
invocation) issues
5. ON TO TRIAL AND JURY VERDICT
Four week jury trial
Jury returned verdict for plaintiffs on 2/20/13:
Dow participated in PPP price fixing conspiracy
Caused plaintiffs to pay more for chemicals than
they would absent conspiracy
No overpayments prior to 11/24/00 (4 year SOL
period prior to filing)
Damages: $400,049,039.00
Trebled: $1,200.147.117.00 (Yikes. $1.2 Billion)
6. POST TRIAL MOTIONS
Motion to De-Certify the Class
Invoking post-certification developments
Comcast v. Behrend; expert failed to address other causes
Variation between jury findings and expert theory/time period of class claim
Too late
Motion for Judgment as a Matter of Law or New Trial
No class-wide impact or damages
No direct evidence/insufficient circumstantial or indirect conspiracy evidence
Verdict form did not require jury finding on conspiracy time period
Instructional error—length and definition of conspiracy/evidence of competition among
defendants
Jury required to find evidence that excludes the possibility of independent action
Failure to give instruction of document retention program
Failure to give bias instruction on witness with DOJ grant of immunity
Imposition of joint and several liability violates Due Process/Fifth Amendment
District Court denies all post-trial motions on May 15, 2013
The Appellate teams are now hard at work ( Plaintiffs engage Paul Clement)
7. CONSPIRACY EVIDENCE AND ISSUES
Incongruence of 5 year price fixing conspiracy Plaintiffs alleged with
jury award for 4 years; no conspiracy matching allegations
Court: “The absurdity of its premise—that Dow could escape
liability…because plaintiffs alleged a longer conspiracy than found by
the jury—convinces the Court that it should not create new law….”
Dow disputes sufficiency of conspiracy evidence:
No direct evidence of conspiracy
Parallel conduct expected in oligopoly
Pricing discussions “not extensive”
Market conditions drove price increases
Downstream pricing data and market information shows non-collusive
explanations for independent price increases
No reasonable inference of collusion wrongdoing versus equally
plausible inference of independent business reasons for price
increases
8. PLAINTIFFS EVIDENCE
DIRECT
Direct testimony on
agreements among
subordinate executives
Price discussions among
executives at functions
INDIRECT (Plus Factors)
Parallel, lockstep conduct in
price announcements and
increases
Communications at or near
time of price increases and
releases
Pricing control effective
Efforts to maintain secrecy of
pricing communications
Acts contrary to self interest
Oligopoly structure
Expert opinion on
supracompetitive prices and
enforcement mechanisms
“The totality of the evidence
was sufficient to tip the scales
beyond evidence that could
reasonably be consistent
with competitive behavior.”
District Judge John W. Lungstrum
Mem. & Order 5/15/13
9. THE INTERVENING COMCAST
DECISION
Class of 2million Comcast cable subscribers alleged
actual and attempted monopolization in regional
concentration of operations (swap agreements)
Alleged 4 theories of harm
Supreme Court found certification improper under Fed.
R. Civ. P. 23(b)(3)
Expert failed to isolate damages to sole theory of harm
remaining in damages model offered in support of
certification
Plaintiffs must establish damages can be proven with class-
wide evidence for common issues to predominate
10. THE CLASS CERTIFICATION ISSUES
Dow’s Comcast argument
Plaintiffs expert could not does not directly link price increases to
anticompetitive conduct
Jury rejected damage model from same expert (James McClave) in
Comcast
McClave multiple regression model estimated damages: 1999 to 2003
Jury found no injury prior to 2000
Focus on Rule 23(b)(3) requirements for rigorous analysis versus relaxed
burden on damages/injury once some fact of injury is shown at trial
McClave theory based on multiple theories (price fixing, market & customer
allocation) while only one was tried
Comcast “offers powerful confirmation that the class in this case
should be decertified.” (Dow brief).
Judge Lungstrum: “Dow had every opportunity to cross-examine
him about whether the impact on plaintiffs could have resulted
from some other wrongdoing.”
11. CLASS CERT ISSUES (Cont’d)
Dow had McClave’s report since 4/11 but did not raise
decertification until the eve of trial
Prejudice to class members
No timely objection at trial; McClave theory defined by trial
testimony; neither side introduced possibility of market
allocation theory of harm
Court accepts plaintiffs argument that classwide
measurement does not mean that some class members
may have unquantifiable damages or mitigated damages
No authority that existence of some zero damages class
members defeat certification
Contrary conclusion would bless an improper fail-safe class
12. TAKEAWAYS
Cautionary tale replete with outstanding real life fact patterns for compliance illustrations
Docket rich with issues and valuable pre-trial discovery and other pleadings, trial motions and post-trial
briefs
Fundamental issues to watch
How will the 10th Circuit deal with the case? Cf. Abraham v. Intermountain Health Care Inc., 461 F. 3d
1249, 1257-60 (10th Cir. 2006)(plaintiff must present evidence that tends to exclude the possibility of
independent action)
Will the Supreme Court be interested in revisiting the joint and several liability constitutional
challenge?
In what circumstances can a defendant be confident in “legitimate business reasons” to counter
conspiracy allegations at trial? Cf. Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewn, Inc., 203 F.
3d 1028, 1033-38 (8th Cir. 2000)(parsing allegations counter-justifications individually to reject
conspiracy)
Conspiracy evidence change?
Rejection of parsing evidence approach.
Distinction between pleading standard for conspiracy and sufficient proof at trial.
Plaintiffs burden does not require absolute exclusion or evidence that tends to exclude possible
independent conduct
13. TAKEAWAYS
Class Certification and Comcast
Skepticism on injury and common impact arguments in overcharge price fixing cases
Raise and preserve every issue every step of the way
Comcast not a panacea; raise at class hearing stage if viable
Big win will embolden the network of plaintiffs antitrust counsel
Glenn E. Davis
HeplerBroom LLC
One Metropolitan Square-2700
St. Louis, MO 63102-2740
314.241.6160
glenn.davis@heplerbroom.com