by Lincoln Mayer

The U.S. District Court for the District of Kansas granted Dow Chemical’s request to stay a $1.06 billion verdict in an antitrust class action suit pending appeal.  The jury’s original $400 million verdict, for allegedly fixing prices of chemical inputs for urethane foam, was trebled to $1.2 billion before the court reduced the award to account for damages paid by other defendants.  Dow said that, among other arguments it will maintain on appeal, it plans to contend that each plaintiff—not the class as a whole—was entitled to trebling of damages.

This may be a novel argument and the district court declined to adopt it because it said it had been provided with no case law on point.  But if the argument, which relies on a very literal reading of the statute, were to gain more traction on appeal, it could give defendants in antitrust class actions a useful tool: the ability to stretch out payments over a longer period of time by forcing each specific plaintiff to prove its damages before receiving the treble portion of the award.  Defendants alternatively could use that ability as leverage to negotiate a reduced overall award.

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