by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law
As the Supreme Court’s new Term begins, one of the key questions is how the Court will be affected by Justice Scalia’s absence. As interesting as the question of how the Court itself responds, however, is the question of how litigants behave – and what we can learn from that behavior. One datapoint came shortly after Justice Scalia’s death in February 2016, in a major antitrust case involving Dow Chemical. In this case, known in the lower courts as In re Urethane Antitrust Litigation, a class of purchasers of certain polyurethane chemical products sued Dow Chemical for price fixing. The plaintiffs prevailed at trial and obtained a $1.1 billion jury verdict. On appeal in the 10th Circuit, Dow Chemical argued, among other things, that the case was inappropriate for class adjudication and that the plaintiffs’ method of calculating damages was improper. The 10th Circuit upheld the jury verdict and Dow filed a petition for certiorari (Dow Chemical Co. v. Industrial Polymers, Inc., No. 14-1091) in March 2015.
Although Dow Chemical was an antitrust case, the issues it presented echo class-action-related issues in a wage-and-hour case that the Court heard last term, Tyson Foods, Inc. v. Bouaphakeo. In both cases, the defendant challenged the use of averages or representative proof of damages and argued that differences between the damages different class members may be entitled to rendered class (or collective) actions inappropriate. In Tyson Foods, for example, the defendant claimed that it was improper for the court to certify a class or collective action where the plaintiffs calculated damages by extrapolating from the time it took for certain employees to perform the tasks (donning and doffing protective and sanitary gear) for which they had not been paid overtime. In Dow Chemical, the class relied on a damages expert who looked at prices paid by some class members and extrapolated to classwide damages and Dow Chemical argued that differences between damages actually suffered by individual class members rendered class certification improper. Indeed, the Court took no action on the cert petition in Dow Chemical while Tyson Foods was pending, a sign that it considered the issues in the cases related and that the outcome of one might affect the other.