The Tenth Circuit’s recent decision to uphold a $1.06 billion class action judgment against Dow Chemical Corp. again demonstrates that class actions are not dead. The Dow ruling demonstrates that class action attorneys, in carefully selected and well-litigated cases, can achieve class certification by providing a detailed analysis that connects class members’ injuries to the alleged wrongdoing.
The Dow Plaintiffs alleged that the company orchestrated a conspiracy to raise the price of polyurethane products sold to industrial clients. After losing at trial, Dow sought to decertify the class based on the U.S. Supreme Court’s decision in Comcast v. Behrend (2013), which held Plaintiffs to a more rigorous standard when trying to prove class-wide damages, and Wal-Mart v. Dukes (2011), which denied class certification because class members didn’t have enough in common to constitute a certifiable class.
Dow argued that the same problems that kept the Plaintiffs from tying their theory of the case to their damages calculations in Comcast plagued the urethane buyers. Dow further argued that, like Wal-Mart, variances in determining class-wide liability and impact undermined class certification. But the Tenth Circuit upheld the trial court’s ruling, stating that unlike Wal-Mart there were “two common questions that could yield common answers at trial: the existence of a conspiracy and the existence of impact. The district court reasonably concluded that these questions drove the litigation and generated common answers that determined liability in a single stroke.
The unusual circumstances of Dow’s class certification challenge mean that the Tenth Circuit’s reasoning may have limited application to other cases. In particular, because Dow waited until after the trial to seek to decertify the class, the trial court didn’t have to guess whether individual issues would predominate over common ones but instead had the benefit of a trial that proved otherwise.
Lawyers at Beasley Allen continue to investigate and successfully prosecute class action lawsuits. For further information on the firm’s class action practice, or for information on a specific issue, contact Lance Gould, Archie Grubb, Dee Miles, Roman Shaul and Alison Hawthorne, lawyers in the firm’s Consumer Fraud Section, at 800- 898-2034 or at Lance.Gould@beasleyallen.com, Archie.Grubb@beasleyallen.com, Dee.Miles@beasleyallen.com, Roman.Shaul@beasleyallen.com or Alison.Hawthorne@beasleyallen.com.
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