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Dow claims anti-conspiracy trend in class action appeal

By: Jane Denny
URETHANES TECHNOLOGY INTERNATIONAL

December 18, 2013

DENVER — Dow Chemical Co presented its appeal case in a bid to overturn a $1 billion urethane price fixing judgment.

The company is the only one of a handful — which included Bayer AG, BASF SE and Huntsman International — to continue to fight the 2004-consolidated class action price-fixing claim comprising around 2,400 purchasers.

As part of its appeal against a jury-conviction for anti-trust conspiracy heard in Denver on Dec. 6, Dow Chemical said prices “during the alleged conspiracy were basically flat, and then rose after the conspiracy allegedly ended.”

According to testimony from Kenneth Elzinga on behalf of Dow Chemical, the variations in prices during the period of alleged price-fixing showed the “flip side of what you would normally see” occur with a cartel.

Furthermore, Dow Chemical’s arguments to the 10th Circuit Appeals court claim that the class certification was unjustified as it prevented Dow Chemical showing how some class members had individually negotiated lower rates and were unaffected by the allegations of price-fixing.

The company also raised concerns over the court’s acceptance of statistical models designed by James McClave — whose models were rejected by the Supreme Court in another action.