On September 29, 2014, the Court of Appeals for the Tenth Circuit affirmed the class certification determination in In re Urethane Antitrust Litigation, 768 F. 3d 1245 (10th Cir. 2014) (Urethane) and left intact a jury verdict resulting in a $1 billion award against Dow Chemical Company (Dow). The Tenth Circuit subsequently declined Dow's request for a re-hearing en banc. The decision is notable in two respects: (i) how it distinguished the Supreme Court's recent decision in Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013) (Comcast); and (ii) how disputes over expert testimony were left to the jury as matters going to the weight of the evidence, not its admissibility.
Urethane is a case involving an alleged conspiracy by competitors to fix prices for polyurethane chemical products, used in various consumer and industrial components such as footwear, mattress foams, insulation, and sealants. The plaintiffs are direct purchasers. During the course of the litigation, the plaintiffs settled with six of the seven defendants, leaving Dow as the lone defendant facing treble damage exposure based on joint and several liability. 768 F.3d at 1250.