Dow to settle price fixing lawsuit

US chemicals major Dow Chemical will pay US$835 million to settle a long-standing class action lawsuit, after the recent death of Justice Antonin Scalia has lessened its chances of bringing it up at the US Supreme Court.

Dow said in a press statement, “Growing political uncertainties due to recent events within the Supreme Court and increased likelihood for unfavourable outcomes for business involved in class action suits have changed Dow’s risk assessment of the situation. Dow believes this settlement is the right decision for the company and our shareholders.”

Presently, Dow has a Petition for a Writ of Certiorari pending before the US Supreme Court seeking to set aside the US$1.06 billion judgment. Dow’s Petition currently is being held by the Supreme Court pending a decision in Tyson Foods, a case with a common class action issue.

Dow said its position at the US Supreme Court is that the judgment violates class action law in multiple ways, notably with respect to the Supreme Court’s Walmart decision of 2011 and the Comcast decision of 2013, both authored by Justice Scalia.

Dow was found liable in 2013 by a Kansas jury of allegedly conspiring to fix prices for polyurethane base chemical polyol. The judgment dealt with alleged actions by Dow and several other companies between 2000 and 2003. Dow had petitioned the Supreme Court to reconsider the judgment.

Following Scalia's death earlier this month, the Supreme Court is now evenly split 4-4 between justices who are usually conservative and those who are liberal. Split decisions revert to the lower court's opinion, such as the federal court in Kansas which ruled against Dow.

Among many other business-friendly decisions, Scalia authored the majority opinion in a 2011 decision in favour of WalMart, throwing out a sex discrimination lawsuit brought by some 1.5 million female employees.

Dow also said that while it is settling this case, it continues to “strongly believe that it was not part of any conspiracy and the judgment was fundamentally flawed as a matter of class action law.”