Dow Chemical Co. v. Seegott Holdings, Inc.
768 F.3d 1245
10th Cir.2014Background
- Industrial purchasers allege Dow and others conspired to fix polyurethane prices from 1999–2003/2004.
- District court certified a Rule 23(b)(3) class of all industrial purchasers despite Dow’s objections.
- Trial produced a verdict in plaintiffs’ favor; district court entered judgment after trebling and deductions.
- Plaintiffs used expert evidence (Dr. Beyer and Dr. McClave) to prove liability, impact, and damages.
- Post-trial, Dow sought decertification and challenged Dr. McClave’s testimony and the damages allocation.
- Court ultimately affirmed class certification, admissibility of expert testimony, liability, and damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether common questions predominate for class certification | Dow misreads Wal-Mart; common questions predominate due to conspiracy and impact. | Dow contends predominance fails due to individualized damages and reliance on extrapolation. | Yes, common questions predominate; district court did not abuse discretion. |
| Admissibility of Dr. McClave’s expert testimony | McClave’s methodology is admissible; weight of evidence goes to credibility, not admissibility. | McClave engaged in variable/benchmark shopping yielding unreliable results. | Admissible; district court properly gatekept and weighed credibility. |
| Sufficiency of the evidence on liability | Evidence showed a price-fixing conspiracy and impact across the class period. | Some periods lacked injury/insufficient proof of conspiracy with all defendants. | Sufficient evidence supported liability and conspiracy. |
| Validity of the damages award and Seventh Amendment concerns | Damages awarded based on class-wide model with pro rata adjustment; allocation permissible. | Allocation undermines jury’s findings and violates Seventh Amendment. | Damages award and allocation upheld; no Seventh Amendment violation. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (common questions must yield common answers driving resolution)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (class-wide damages proof; invalid if no nexus between liability and class impact)
- In re Linerboard Antitrust Litig., 305 F.3d 145 (3d Cir. 2002) (conspiracy as common question can predominate)
- In re Foundry Resins Antitrust Litig., 242 F.R.D. 409 (S.D. Ohio 2007) (impact proven through class-wide evidence despite variation)
- In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008) (predominance satisfied where defendants conspired to interfere with pricing)
- In re Flat Glass Antitrust Litig., 191 F.R.D. 472 (W.D. Pa. 1999) (predominance in antitrust class actions based on conspiracy evidence)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (framework for class certification standards)
- Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011) (Behrend discussed in Comcast context (dissent cited) regarding model validity)
- In re Rail Freight Surcharge Antitrust Litig., 725 F.3d 244 (D.C. Cir. 2013) (discussed for methodological concerns in damages models)
- Dimick v. Schiedt, 293 U.S. 474 (1935) (Seventh Amendment considerations when adding damages)