U.S. District Judge John W. Lungstrum has denied a defendant’s motion to decertify a class of plaintiffs and refused to apply the Behrend v. Comcast Corp. decision. The defendant claimed that the plaintiff’s damages expert considered rejected theories of liability, as in the Comcast case. Judge Lungstrum’s ruling also ordered Dow to pay $1.2 billion in damages to the plaintiffs, who had alleged antitrust violations by Dow. In re Urethane Antitrust Litigation, No. 04-1616 (D. Kan. May 15, 2013) (order denying motion to decertify class) (available here).
Judge Lungstrum declined to apply Comcast, giving particular emphasis to Dow’s belated move to decertify, as the decision criticized Dow’s untimeliness in bringing its motion, “literally on the eve of trial.” Slip op. at 2. “Dow has not offered any reason why it could not have filed its motion much earlier. . . . Reconsideration of the Court’s certification order at that time or even post trial would cause severe prejudice to plaintiffs, who prepared for a long and complex trial at great expense.” Id.