913 F. Supp. 2d 1145
D. Kan.2012Background
- This is a mult i-district class action alleging Dow Chemical conspired with other manufacturers to fix prices for urethane products in violation of the Sherman Act, with Dow’s summary-judgment motion denied in full.
- The Polyether Polyol class actions have settled with Bayer, BASF, Huntsman, and Lyondell; Dow remains as the sole defendant.
- A class was certified for U.S. purchasers of MDI, TDI, other polyether polyols, and related systems from 1999 to 2004; direct-action plaintiffs opted out.
- The class period for Dow’s claims is 1999–2003 (shorter than the class period), and the court evaluates whether there is a genuine issue of material fact on a price-fixing conspiracy.
- Dow argues there is insufficient direct or circumstantial evidence to prove a conspiracy and contends the evidence is ambiguous under Matsushita; plaintiffs rely on a mix of direct testimony and circumstantial proof showing meetings, communications, and parallel pricing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of a price-fixing conspiracy under §1 | Barbour/Bayer/BASF testimony shows meetings and price agreements | Evidence is ambiguous and lacks plausible motive | Evidence creates a fact question for trial; conspiracy could be found |
| Duration and product scope of the conspiracy | Evidence supports ongoing conspiracy from 1999 through 2003 and across MDI, polyols, systems | Limitations on period and product scope should apply | Jury question on duration and scope across products; conspiracy could extend to pre-2000 period and to multiple product lines |
| Fraudulent concealment tolling of the statute of limitations | Acts of secrecy and false price-announcements constitute concealment | Requires limited or no concealment proof; timing issues | Intermediate standard applied; genuine issue for jury on concealment and tolling; limitations defense denied |
Key Cases Cited
- Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (limits inferences in §1 cases; requires evidence tending to exclude independent action)
- Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (U.S. 1984) (summary-judgment standard: must show conspiracy is reasonable given competing inferences)
- Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073 (10th Cir. 2006) (economic plausibility of inferences adapts to circumstantial evidence in antitrust cases)
- King & King Enterprises v. Champlin Petroleum Co., 657 F.2d 1147 (10th Cir. 1981) (affirmative act of concealment standard for fraudulent concealment)