In re Urethane Antitrust Litigation

Case Updates

In its brief, the Chamber urged the Tenth Circuit to grant en banc review and decertify the class in this case. The brief argues that the panel’s ruling Allows for any plaintiff alleging an antitrust conspiracy to invoke Rule 23 which places defendants at risk of potentially ruinous liability. The holding not only conflicts with Wal-Mart Stores, Inc. v. Dukes and the decisions of several other circuits, but also the Rules enabling Act and due process. If allowed to stand, the panel’s decision will expose businesses to the risk of staggering class judgments and, even for those who manage to defeat liability, substantially higher litigation costs. And since the panel’s decision allows practically any antitrust conspiracy to be prosecuted as a class action, the Tenth Circuit promises to become a source for plaintiffs using the threat of nationwide class liability to pressure defendants into settling baseless claims—claims that the defendants must defend without the ability to raise individualized defenses. The brief points out that ultimately, consumers may end up footing the bill for the costs associated with class actions.

Steffen N. Johnson, Robert F. Ruyak, William A. Roach, Jr., Jeffrey L. Kessler, George E. Mastoris, and Tyler G. Johannes of Winston & Strawn LLP represented the U.S. Chamber of Commerce as co-counsel to the U.S. Chamber Litigation Center.

The Tenth Circuit affirmed the class certification order.

In its brief, the U.S. Chamber urged the Tenth Circuit to reverse the district court’s order granting class certification, and its order refusing to decertify the class. Class certification is improper here in light of Wal-Mart Stores, Inc. v. Dukes, and Comcast Corp. v. Behrend, because the certification order resulted in defendant’s inability to defend against individual class members’ claims. It was also improper because the statistical model upon which the district court relied to certify the class failed to prove antitrust injury or damages “in one stroke,” Wal-Mart, 131 S. Ct. at 2551, and did not correspond to the only model of liability for which plaintiffs introduced evidence at trial. Improper certification decisions in cases of this magnitude are particularly problematic because they impose significant unnecessary costs, resulting in harms to the entire economy such as higher prices for consumers and fewer jobs.

Gene C. Schaerr, Robert F. Ruyak, William A. Roach, Jr., Jeffrey L. Kessler, and George E. Mastoris of Winston & Strawn LLP represented the U.S. Chamber of Commerce as co-counsel to the National Chamber Litigation Center