After getting socked in February with the year's biggest verdict so far, Dow Chemical Company is hoping Sidley Austin appellate powerhouse Carter Phillips can undo the damage. Phillips turned up on the docket for Dow last week at the U.S. Court of Appeals for the Tenth Circuit, where the company is fighting a $1.1 billion Kansas jury verdict for fixing prices for urethane chemicals used in plastics, packaging, paints, and other products.
Phillips filed this case statement on Sept. 4, saying Dow plans to argue that a Kansas City federal judge erred in certifying a nationwide urethane purchaser class and in accepting the plaintiffs' expert witness testimony.
Dechert's David Bernick, who led Dow's trial team, confirmed that Phillips will be heading the appellate effort. Phillips will likely face off against fellow former U.S. Solicitor General Paul Clement of Bancroft PLLC, who was brought in by the plaintiffs to try to preserve their jury win.
Here's a quick recap of the case thus far: Plaintiffs filed suit in 2004 on behalf of a class of direct purchasers of chemicals used to make polyurethane. Back in February a Kansas City jury returned a $400 million verdict, finding that Dow conspired with other chemical companies to fix prices. U.S. District Judge John Lungstrum trebled the damages in May under the antitrust laws, leaving Dow on the hook for $1.2 billion.
Lungstrum shaved $139 million off the jury award in July in order to offset deals that alleged co-conspirators Bayer, BASF, and Huntsman International reached to settle the plaintiffs' price-fixing claims.
The lineup of law firms on the plaintiffs' side includes Cohen Milstein Sellers & Toll; Fine, Kaplan and Black; Freedman Boyd Hollander Goldberg Urias & Ward; and Kellogg, Huber, Hansen, Todd, Evans & Figel. Dow was represented at trial by Paul Hastings and Boies, Schiller & Flexner, where Bernick was a partner before moving to Dechert last month.
