Dow settles class action rather than risking new Court

And so it begins. The Supreme Five no longer exist to weigh decisions in favor of corporations against individuals who sue them.

The changing Court brings an end to a major case

Posted: 26 Feb 2016 11:56 AM PST

The changing Court brings an end to a major caseIn the first direct response by lawyers and clients to the change in the Supreme Court, Dow Chemical Co. said on Friday it had settled a billion-dollar class-action case it has pending before the Justices, rather than risk a loss following the death of Justice Antonin Scalia.  Without admitting that it had done anything wrong in this plastics pricing case, the company said in a press release that it moved to end the case because its legal position was relying heavily upon two five-to-four decisions written for the Court by Scalia. [My emphasis.]

For the time being, only eight Justices will be deciding cases this Term, and could split four to four, leaving lower court decisions undisturbed.  In Dow Chemical’s case, a jury in 2013 awarded damages that, after being tripled, stood at $1,060,847,117, plus interest, to be paid to a court-approved class of some 2,400 businesses that had bought chemicals from Dow to produce polyurethane products — a form of plastic used to make such items as seat cushions, mattresses, insulation, building materials, coatings, adhesives, and sealants.

In settling with that class, Dow agreed to pay $835 million, and reached agreement on post-judgment interest and a probable award of attorney’s fees.

For the past several years, the Court’s majority led by Scalia has grown increasingly skeptical of class-action lawsuits, lamenting that they often deprive the companies sued in such cases of the opportunity to defend themselves against individual claims, and that they frequently force companies into settling cases even if they believe they have strong arguments against the claims, in order to avoid the heavy costs of litigation.

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