LANDMARK CIVIL PRICE-FIXING VERDICTS OF 2013: LESSONS FROM THE VITAMIN C AND URETHANES TRIALS With Trial Counsel and Observers William A. Isaacson, Daniel S. Mason, Joseph Goldberg, and Michael Tubach

Moderated by Heather Tewksbury^*

I. INTRODUCTION

The Spring of 2013 witnessed blockbuster verdicts in two civil price-fixing cases. Although these cases share the distinction of resulting in significant verdicts for civil antitrust enforcement, their respective paths to those verdicts could not be more different. The first case hails from an alleged price fixing conspiracy formed in China, and represents many "firsts" for the U.S. judicial system. In re Vitamin C Antitrust Litigation resulted in the first civil price-fixing verdict against Chinese companies in the United States; the first known time that the foreign compulsion defense was presented to a jury at trial; and the first time a former Chinese government representative testified at trial in a U.S. court. On the other end of the spectrum is our second case, In re Urethane Antitrust Litigation, an alleged price-fixing conspiracy born here on U.S. soil. It is significant not only because it represents the largest verdict for a Sherman Act violation last year, but also because the plaintiffs obtained that verdict even without the benefit of criminal indictments or plea agreements. Both cases raise important issues that will impact the continued development of private antitrust enforcement against price-fixing conspiracies for years to come.

II. IN RE VITAMIN C ANTITRUST LITIGATION

On March 14, 2013, after a three week trial in the Eastern District of New York, a jury returned a $54 million verdict against two Chinese Vitamin C producers, Hebei Welcome Pharmaceutical Company Ltd. ("Hebei") and North China Pharmaceutical Group Corp. ("North China Pharmaceutical"). The seven member jury returned its verdict, which was trebled to $162 million, after just a half day of deliberations. When the trial began on February 25, 2013, Hebei and North China Pharmaceutical were joined by co-defendants China Pharmaceutical Group Ltd. and its Weisheng Pharmaceutical unit. Both companies settled on the eve of closing arguments for a fraction of the final judgment, at $22.5 million. Other Vitamin C producers, Jianngsu Jiangshan (Aland) and Northeast Pharmaceutical Group Co., settled before the trial.

The multi-district litigation began in 2005 when plaintiffs brought suit against China’s four main Vitamin C producers and an affiliate. Those five companies made approximately 70 percent of the world’s supply of Vitamin C¹ The producers were accused of fixing the prices and volume of Vitamin C products exported from China to the U.S. and worldwide, in violation of Section 1 of the Sherman Act. The complaint alleged that beginning in December 2001, the Vitamin C producers, who were members of a Chinese Chamber of Commerce ("Chamber"), reached agreements during subcommittee meetings, to raise the prices of Vitamin C in the United States from $2.90 per kilogram to as high as $7 per kilogram.² The complaint also alleged that the producers agreed to limit and suspend the manufacture of Vitamin C until prices stabilized.³

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The basis for these allegations was found in the document below, which plaintiffs located on the China Chamber of Commerce of Medicines and Health Products Importers and Exporters Information website.

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In that document, the Chamber explains that between May 2000 and late December 2001, the Vitamin C industry was involved in a price war that caused export prices to plummet from $5 per kilogram to less than $2.80. Through the Vitamin C subcommittee of the Chamber, Vitamin C manufacturers in China reached a "self-regulated agreement whereby they would voluntarily control the quantity and pace of exports, to achieve the goal of stabilization while raising export prices." The District Court did not admit this exhibit at trial.

After locating this document and filing suit, the plaintiffs’ cases were consolidated in the Eastern District of New York. Defendants unsuccessfully moved to dismiss the case in 2008 primarily on the ground that the complaint’s allegations were barred by the foreign sovereign compulsion doctrine. The court denied the motion because "the record as it stands [was] simply too ambiguous to foreclose further inquiry into the voluntariness of defendants’ actions."⁴ In denying later motions to dismiss after the record was developed more fully, the district court further found that "Chinese law assuredly did not compel all of the defendants’ illegal conduct."⁵

The court made this determination despite the defendants’ efforts to substantiate the foreign compulsion defense with facts about Vitamin C regulation, which had undergone two distinct periods during the cartel. The first period began in 1997, when the Ministry of Commerce issued export rules that explicitly set quotas for Vitamin C exports. Those rules also directed the Chamber responsible for Vitamin C to set a mandatory minimum export price. This regime changed in 2002 as China entered the World Trade Organization, at which point the Ministry repealed those rules, and instead implemented a "verification and chop" system. Through this system, the Vitamin C producers argued that they submitted export contracts to the Chamber for verification. Contracts that complied with export price requirements were affixed with the Chamber’s "chop" (an official stamp or seal of approval). According to the defendants, only those contracts that received the "verification and chop" were approved for export. This system was also repealed in 2008. This explanation did not satisfy the district court on defendants’ foreign compulsion defense, and the case was allowed to move forward.

The court’s position also did not waver even after the Chinese government, in an unprecedented act, filed an amicus brief in which it attempted to demonstrate that the defendants were compelled to set prices and coordinate production with their competitors. In the amicus brief filed early in the litigation and exerted below, the Ministry of Commerce argued that the "alleged conduct by the defendant Chinese Vitamin C exporters is the result of the defendants’ performing their obligations to comply with Chinese laws, rather than conduct on their own initiative." The Ministry further contended that it was the Ministry that "required the Vitamin C exporting companies to coordinate among themselves on the export price and production volume."

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The district court refused to dismiss the case even after considering the Chinese government’s amicus. The defendants thereafter moved for summary judgment and resurrected a defense that they could not be held liable for price-fixing in the United States because they had been compelled to coordinate prices by the Chinese government.⁶ Specifically, they claimed that through China’s complex regulatory system, informal directives were given by quasi-governmental agencies (the Chamber of Commerce) that required the producers to fix prices. Accordingly, they argued that the foreign compulsion doctrine precluded them from being held liable for violating the U.S. antitrust laws. The district court denied the defendants’ motion for summary judgment, declining to defer to the Chinese government’s interpretation of Chinese law and choosing instead to rely on "more traditional sources of foreign law." The court concluded that the directives issued by the Ministry of Commerce and its governing documents were among those traditional sources. The court further noted that the Chinese government’s assertion in its amicus brief that it compelled the Vitamin C manufacturers to price fix was a "post hoc attempt to shield defendants’ conduct from antitrust scrutiny."⁷

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After the class of purchasers was certified in January 2012, the first defendant to settle the matter was Aland, which settled the case for $10.5 million in May 2012. Nine months later the case went to trial with the four remaining defendants. Those defendants again asserted the foreign compulsion doctrine defense throughout the trial. The defendants’ key witness at trial was a retired Chinese Chamber of Commerce representative who oversaw the Vitamin C export industry. This was particularly significant because this also represented the first reported case of a Chinese government representative testifying in a U.S. court.⁸

The retired representative described the "verification and chop" system to the jury, and testified that the Vitamin C producers were compelled to comply with the Chamber’s minimum export prices, or they would not receive the "chop" required to export the Vitamin C. This testimony was undermined, however, by the below document, authored by the retired representative himself.

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In the document, which was introduced into evidence at trial, the representative wrote that the export regulations were a mere formality that only "honest fellows will follow." The witness testified that he was talking about a different industry in the document. This testimony was undermined during his cross-examination, however.

The testimony proved unpersuasive, and the jury returned a verdict against the two remaining corporate defendants for the full amount of damages sought by the plaintiffs.

Before describing our second blockbuster case of 2013, In re Urethanes Antitrust Litigation, we will first introduce our panelists for both cases and hear from two of the lead lawyers in the Vitamin C litigation. We will then turn to our panelists on Urethanes to get their perspectives on that litigation.

Our illustrious panel consists of:

• William A. Isaacson of Boies, Schiller & Flexner, LLP in Washington, D.C. is an accomplished trial lawyer and served as one of the lead lawyers representing plaintiffs in the In re Vitamin C Litigation. With over 25 years of experience, Mr. Isaacson has experience in complex civil matters and international arbitration. He has been recognized by the American Lawyer, Best Lawyers, and Super Lawyer.
• Daniel S. Mason is a senior partner at Zelle, Hoffmann, Voelbel & Mason, LLP in San Francisco. Having over 40 years of experience, Mr. Mason has litigated hundreds of cases in a wide variety of complex civil litigation matters. Mr. Mason has significant international law experience, and has represented clients all over the world, including the People’s Republic of China on international trade disputes. Mr. Mason was lead trial counsel representing Vitamin C producer, Weisheng Pharmaceutical, who settled before the conclusion of the trial in In re Vitamin C Litigation.
• Joe Goldberg is a senior shareholder in the Freedman Boyd Hollander Goldberg Urias & Ward P.A. law firm. Mr. Goldberg has taken leadership positions in a number of significant class actions and has tried a number of cases to multimillion dollar verdicts, including the Urethanes case. He has been designated by Best Lawyers in America as "bet-the-company" litigator of the year in New Mexico in 2009 and antitrust litigator of the year in 2011. He is also listed in Best Lawyers and in Chambers USA since its inception.
• Michael Tubach is a partner in O’Melveny & Myers LLP’s San Francisco office. Mr. Tubach is an accomplished trial lawyer who represents companies and individuals primarily in criminal and civil antitrust matters, as well as in internal corporate investigations. He is recommended by various legal ranking guides, including Legal 500, PLC Which Lawyer, and Chambers USA. He has also been recognized as a leader in the field of white-collar criminal defense in a survey conducted by Law & Politics Media Inc. His trial experience includes over 35 trials and 20 appellate arguments.

Heather Tewksbury, a partner in Wilmer Hale’s Antitrust and Competition Practice Group, moderated this discussion. This discussion builds upon the recent panel discussion at the Antitrust Section’s 2013 Golden State Institute in San Francisco. Ms. Tewksbury moderated the combined panel discussion and was joined by Messrs. Isaacson, Mason and Goldberg. The panel discussion can be accessed on-line by following the instructions for watching streaming audio and video.

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III. VITAMIN C PANEL DISCUSSION

Moderator: The Vitamin C litigation is particularly noteworthy because it was the first time that Chinese companies have been held liable for violating the U.S. antitrust laws. Is this case an aberration or do you believe it represents a sign of things to come?

Isaacson: Cartel cases in the United States for several decades have focused on international cartels. The Antitrust Division of the Justice Department and private antitrust enforcement have tried to send the message to any company from any country in the world, if you want to sell products in the United States, you have to obey the antitrust laws and not engage in price fixing. China is one of the largest economies in the world to have escaped scrutiny under U.S. law. The Chamber in this case that was used to facilitate price fixing is typical of Chambers throughout the Chinese economy that cover all manner of exported products, including metals and minerals, machinery and electronic products, foodstuffs, and medicines and other health products. Another record within the Medicine & Health Products Chamber explains the awareness within Chinese industry of the opportunities for price fixing: "Attendees fervently indicated their wish to use the example of the Vitamin C Industry self-regulation as a management model." Another record from the Chamber has warned of the need "to prevent the mutual slaughtering of aggressive competition."

Mason: The core defense in this case is based on a doctrine that has not been much tested. In fact, to our knowledge, the Vitamin C litigation is the first case ever where a foreign sovereign compulsion defense has been tried by a jury. The remaining defendants have filed an appeal on the application. . . If the Court of Appeals affirms the District Court’s decision, more plaintiffs’ counsel will probably be encouraged to take upon such cases.

But given there is no bilateral treaty between the United States and China, plaintiffs will find it difficult to enforce judgments against Chinese companies that do not have assets in the United States. I suspect this is a practical concern for anyone who considers bringing a case against Chinese companies.

Moderator: This case is particularly unique because of the defense asserted by the defendants. The Vitamin C defendants claimed that their conduct was immune from U.S. antitrust scrutiny under the foreign compulsion doctrine. What does a defendant have to show in order to succeed in asserting the foreign compulsion doctrine defense?

Isaacson: The jury was instructed by the Court that it was to return a verdict in favor of the defendants if defendants proved, by a preponderance of the evidence, that an authorized member of the offices or agencies of the Government of China compelled them to enter into agreements fixing the price or limiting the supply of Vitamin C exported from China. There was also a special verdict on this point. The jury was also instructed that "Government enforcement, or government facilitation, of already existing agreements is not sufficient to prove that the parties were compelled to enter into the agreement in the first place." The instructions were agreed to by the parties and derived from case law holding that private agreements are not immunized from antitrust liability by the defense of government compulsion if a foreign government merely approves, facilitates or enforces illegal cartel agreements. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 705 (1962); United States v. Sisal Sales Corp., 274 U.S. 268, 276 (1927).

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Mason: A defendant would have to show that it was compelled by a foreign government to engage in conduct that violates the antitrust laws of the United States. To establish this defense, defendants must prove that an authorized member of the offices or agencies of the foreign government compelled defendants to enter into agreements fixing prices or limiting supply. Such compulsion can be shown with the prospect of penalties or sanctions for non-compliance with the directives or commands of the foreign government.

Moderator: Typically this defense is raised and adjudicated at the summary judgment phase of litigation. The Vitamin C litigation, however, presented another first by being the first known case where the defense was litigated before a jury at trial. What were the challenges of litigating this defense before a jury?

Isaacson: Prior to trial, our jury research indicated that the defense of compulsion by the Chinese government was an appealing one for the defense. U.S. citizens assume that the Chinese government compels everything. Our job was to show the jury the documents and teach them that their assumptions were wrong.

Plaintiffs therefore focused our case on showing the ample evidence that the Chinese government did not actually compel defendants’ decisions to fix the price and limit the supply of Vitamin C—including evidence of voluntary agreements, that the "verification and chop" mechanism did not actually compel defendants to enter into anticompetitive agreements and that the Chamber was a voluntary trade association. Many such documents were shown to the jury on the issue of voluntary conduct, with statements such as: "each manufacturer will as usual have its own calculation;" "it is still an open question as to what extent the consensus made at the meeting will be implemented;" and "we have communicated with Weisheng and Welcome, hoping that they will maintain a similar pricing policy for our common interest."

In focusing the trial on the facts of what happened, the district court wanted to ensure that "Chinese laws themselves were not placed on trial. Rather, the jury was only required to determine whether the Chinese government acted, not the propriety of its actions."

Although the trial, like any other trial was about factual issues, the defense desired to read Chinese laws and regulation to the jury to support their case. The district court ruled that under Fed. R. Civ. P. 44.1, the determination of foreign law is a question of law. The court explained in its post-trial rulings that "It is for the Court, not for the jury, to decide questions of law and the Court did so when it ruled on summary judgment that, as a matter of law, Chinese law did not compel defendants’ conduct." Defendants then had the opportunity at trial to show that the Chinese government took actions that compelled their conduct, and the jury held otherwise.

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Mason: In the Vitamin C litigation, the defense was hamstrung by the Court requiring that defendants prove foreign sovereign compulsion without any Chinese laws and Government regulations. The Court excluded Chinese laws and regulations from the trial on the grounds that the jury does not decide legal issues, and that the Court had previously ruled that Chinese law did not compel the alleged conduct. As a threshold matter, this made it very difficult for the key Chinese Government witness to establish that he had authority and received instructions from the Chinese Government to compel the defendants’ conduct at issue.

There was also an inherent difficulty in asking American citizens to find that foreign companies should be permitted to fix prices of products sold into the U.S., and buy into the defense that American antitrust law should not apply to them. We believe the defense should be found as a matter of law by the Court, and not be the subject of the jury trial, but Judge Cogan disagreed. We thought this was inconsistent with the underpinnings of the foreign sovereign compulsion, act of state, and comity doctrines, which aim to prohibit trials that question or second guess the validity, credibility, or conduct of foreign government offices or officials. This will undoubtedly be a significant issue in the Court of Appeals.

It was also challenging to assist an American jury in appreciating the context of our defense from a different cultural and socio-economic perspective. The defense in this case—compulsion by the Chinese Government—rooted from a unique Chinese socialist market economy and regulatory structure where strong government intervention was a tradition. It was very important that the jury understand some of this backdrop, contrasted without the free market system Americans are used to.

During the trial, all defense fact witnesses came from China. They had no prior experience with jury trials and they testified in Chinese. Their testimony often contained special terms with special meanings and context that did not transpire from literal translation. The jury, who judged their credibility, could also misread their gestures and demeanors based on a different cultural setting.

Moderator: This case also marks the first time that the Chinese government has appeared in U.S. proceedings in support of a defendant’s claim of immunity under the foreign compulsion doctrine. What role did the Chinese government play in the Vitamin C litigation and how were the Chinese government’s efforts received by the judge and/or jury in this case?

Isaacson: The Ministry of Commerce of China retained U.S. counsel during the motion to dismiss and summary judgment proceedings in the case, submitted an amicus brief supporting the compulsion defense of defendants, and argued its position before the District Court. During summary judgment, for example, defendants and the Ministry argued that the factual record from contemporaneous documents and deposition testimony should be ignored, and that all factual disputes should be resolved based on the statements of the Ministry in its amicus brief.

Mason: The Chinese Government appeared as an amicus curie and submitted a brief in support defendants’ motion to dismiss at the beginning of the litigation, expressly stating that it directed and compelled defendants’ conduct. It then submitted two subsequent statements reiterating that it had directed and compelled defendants to engage in the conduct at issue. The court, however, in its Order denying motion to dismiss, held there were questions of facts related to these statements. Then in its Order denying summary judgment, the Court refused to give any deferential effect to the Chinese Government’s statements. The Court concluded these statements were conclusory and were "post-hoc attempt to shield defendants’ conduct from antitrust scrutiny." In the jury trial, the Court excluded the Chinese Government’s Statements on the ground that they were hearsay and unfairly prejudicial to plaintiffs.

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Moderator: The Vitamin C litigation presented a number of interesting procedural issues. What role did FRCP 44.1 play in this case?

Isaacson: FRCP 44.1 requires the court to interpret foreign law as it did in this case. In arguments to the court, plaintiffs emphasized that at the end of the day, there is no plain law or regulation that says to any Chinese company: you must fix prices. And the facts at trial showed that, however a court could interpret Chinese law, the conduct here was voluntary. The defense that the Chinese government fixed prices itself is an attack on the credibility of the Chinese government. The Chinese government has represented to the World Trade Organization that its "export prices are fixed by enterprises without government intervention" and "there are no State restrictions on price or output." The Chinese government has even told the WTO that: "China maintains export administration of a small number of products . . . From 1 January 2002, China gave up export administration of . . . vitamin C."

Mason: Rule 44.1 is key to this case. Pursuant to Rule 44.1, the court concluded in its Order denying defendants’ summary judgment motion that Chinese law did not compel defendants’ conduct in this case. In our opinion, the court improperly applied Rule 44.1 by declining to defer to the Chinese Government’s statements. The court also took an unusual role of evaluating witnesses’ credibility and weighing the record in this case.

Moderator: The case also presented some unique evidentiary issues. What were some of the more significant evidentiary rulings at trial?

Isaacson: The District Court followed the traditional rule that issues of law are not for the jury to decide. Fed. R. Civ. P. 44.1 (a court’s determination of foreign law "shall be treated as a ruling on a question of law"); Fed. R. Civ. P. 44.1 advisory committee note to 1966 adoption ("It has long been thought . . . that the jury is not the appropriate body to determine [such] issues"). Qaio Haili testified at length for the defense that he acted for the government and he personally was responsible for requiring price fixing agreements by the companies.

Mr. Qiao’s credibility was a key issue at trial because what he wrote at the time was that "Regulations and rules formulated by companies in the industry organized by the chambers of commerce lack legal basis and are difficult to gain support from government departments. These rules and regulations become formality and only ‘honest fellows will follow’." Mr. Qiao ultimately admitted at trial: "on the whole, the government did not involve itself in price fixing," with respect to minimum prices, the government "don’t discuss that with me," and the Ministry of Commerce had never discussed a specific Vitamin C price with him. Based on documents, plaintiffs argued that the defense that the government of China was responsible for price fixing was manufactured after the lawsuit was filed. One company document even stated: "If we won the lawsuit, it would be hard for foreigners to make more trouble. Even if we lost the case, government would take the foremost part of responsibility. After all, we need to do many things in a more hidden and smart way."

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Mason: We were essentially barred from using any laws or regulations to demonstrate the foreign sovereign compulsion defense. Mr. Qiao Haili, who was the highest ranking Government officer directly in charge of Vitamin C export regulation prior to his retirement, was permitted to testify somewhat as to his understanding of the laws and regulations and the authority he was given by the China Ministry of Commerce. The testimony Mr. Qiao himself was central to our case, and we provided some corroborating documents as well. But we were not permitted to show the laws and regulations to the jury.

Moderator: The trial involved the translation of documents originally written in Chinese and the interpretation of witness testimony. What were the unique challenges you faced in navigating these language issues?

Isaacson: By the end of the trial, there were no exhibits that were objected to based on translation issues. The parties successfully worked together to resolve these issues. One very unexpected development at the pretrial conference, however, took place during a discussion of the translation issue. I think it is fair to say that all parties were surprised to learn that our District Judge, the Hon. Brian Cogan, spoke fluent Chinese.

Mason: All defense fact witnesses testified in Chinese through interpreters, and nearly all exhibits were translated, often with dueling translations from each side. Important phrases in English, such as "request" vs. "require/order" are very close in Chinese and depend heavily on context, which may or may not understood by the translator.

Additionally, in some cases, literal translation of special terms, such as "industry self-discipline" does not convey the underlying cultural and economic rubric which is necessary for the jury to fully appreciate their meanings. In those cases, we went through those special terms through direct examination of Chinese witnesses in order to provide the necessary background.

Moderator: The district court gave a jury instruction on the foreign compulsion doctrine defense. What was the significance of that instruction in this case?

Isaacson: The jury instruction and corresponding special verdict were the focus of the liability issues at trial. The instruction and verdict were agreed to because they followed established law (although law that is not at issue in many cases).

Mason: We believe the foreign compulsion defense should have been determined as a matter of law, based on the statements by the Chinese Government. We also believe it was wrong not to give deference to factual statements by a foreign government on what its laws required and to second guess the foreign government’s conduct. But the district court decided instead to have a jury decide this defense as a factual issue, and have the jury render a decision without the full context of the Chinese laws and regulations. We appreciate the intricacy in putting forward the defense within this procedural framework. We also appreciate the challenges the jury faced in following the Court’s instruction and in viewing the facts through the prism of Chinese culture and economic policy.

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IV. IN RE URETHANES ANTITRUST LITIGATION

Now turning to allegations of a price fixing conspiracy formed on U.S. soil, the Urethanes antitrust litigation involved a conspiracy to fix the prices of chemicals used to make foam products in cars, furniture, and packaging. Lawsuits alleging antitrust violations against urethane makers started surfacing in 2004. In 2005, after multiple lawsuits were filed, the U.S. Judicial Panel on Multidistrict Litigation consolidated the cases before U.S. District Judge John W. Lungstrum in Kansas, where the case remained through trial. Direct purchaser plaintiffs Seagath Holdings, Inc., Industrial Polymers, Inc. and dozens of others brought the class action against chemical companies Dow, Bayer AG, BASF SE, Huntsman International LLC, and Lyondell Chemical Co.

Although the Department of Justice opened an investigation after plaintiffs’ filed their complaint, no plea agreements were taken and no charges were filed. Despite the lack of plea agreements, over the course of the next seven years, all of the defendants in the civil litigation, except for Dow, settled with the class plaintiffs. In 2006, Bayer AG settled for $55 million. Over five years later, Huntsman International agreed to pay $33 million and BASF SE agreed to pay $51 million. And Lyondell settled without damages because it was in bankruptcy. These settlements were worth nearly $140 million in total.

Soon after the last settlement was inked, Dow filed for summary judgment, which the District Court denied, finding that plaintiffs had provided enough evidence to allow a reasonable jury to find that a conspiracy existed. The trial began several months later on January 23, 2013. Despite the lack of DOJ charges, the plaintiffs were able to paint a picture of a price-fixing conspiracy using circumstantial and consciousness of guilt evidence. Central to the plaintiffs’ case was the colorful description witnesses gave of business executives acting in secret, including driving to gas stations and purchasing calling cards to reach out to competitor counterparts, meeting in dark hotel hallways, and avoiding conference rooms for fear of listening devices. The jury was presented with this consciousness of guilt evidence coupled with nearly identical price announcements over a five-year period. The plaintiffs were also able to present the testimony of a Dow executive, Stephanie Barbour, who served as Dow’s North American head for one urethane chemical. Ms. Barbour testified that she attended meetings during which her boss and one of her counterparts at Dow discussed reaching agreements with competitor counterparts on price. A portion of Ms. Barbour’s testimony is captured in the below demonstrative, which was used in plaintiffs’ closing argument.

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Beyond the testimony of percipient witnesses, the parties also used expert witnesses in support of their respective cases. Plaintiffs used expert witnesses on damages and class certification issues, and Dow sought to rebut that testimony through its own expert witness. In response to the testimony on parallel price announcements, Dow explained that similar price announcements is not probative of a price-fixing conspiracy, and that the customers did not pay those prices in any event. When Dow’s expert was questioned about those price announcements, however, he conceded that they were used to "forestall a price decline". This testimony was captured in the below demonstrative used in closing argument at trial.

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The jury returned a $400 million verdict in favor of plaintiffs after a five-week trial. Later, the district court trebled the damages, which were offset by the earlier settlements, resulting in a $1.06 billion judgment. Before handing down the judgment, the court denied Dow’s attempt to overturn the jury verdict citing the recent Supreme Court decision in Comcast. In its moving papers, Dow noted "Comcast offers powerful confirmation that the class in this case should be decertified. And like Wal-Mart Stores Inc. v. Dukes—a significant class certification decision issued since this court granted class certification in 2008—Comcast will provide much needed guidance to lower courts, to ensure that certification is granted only when consistent with Rule 23, the Rules Enabling Act, and the guarantees of the Due Process Clause and Seventh Amendment." The court rejected Dow’s arguments as untimely, but also addressed the merits by specifically stating that the Comcast decision was not relevant to the case because of the stage of litigation that was involved. The case is now on appeal before the United States Court of Appeals for the Tenth Circuit.

V. URETHANES PANEL DISCUSSION

Moderator: Unlike the Vitamin C litigation where the defendants conceded there was price-fixing, but asserted that they had an absolute defense, the Urethanes case was a more traditional conspiracy case. What are some of the key pieces of evidence or tools that would be necessary to prove up the price-fixing conspiracy from the plaintiffs’ perspective? From a defense perspective, what factors or themes are helpful in defending against traditional price-fixing allegations, like those in Urethanes?

Goldberg: In most price-fixing conspiracies, absent a criminal plea bargain or conviction, the evidence is almost exclusively in the hands of the defendants. The Urethanes case was no exception. There was no prior DOJ indictment or conviction.⁹ We were able to prove Dow’s participation in a price-fixing conspiracy with its ostensible competitors through a combination of direct evidence, circumstantial evidence and expert opinion.

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We had powerful direct evidence of both the existence of a cartel and Dow’s participation. There was testimony of wide-spread and repeated communications among the top executives of the urethanes producers discussing coordinating pricing. For example, there was testimony of a golf outing at a trade association meeting, after which Dow’s chief executive spoke with executives of its competitor, Bayer, about "getting prices up". While the Dow employees who were implicated in such conversations denied having pricing communications or reaching any agreements, there were colorful episodes that allowed the jury to determine this credibility battle in favor of a finding of collusion. For example, Larry Stern, the head of North American urethanes for Bayer testified about leaving his office, driving to a gas station, purchasing a calling card and then calling his counterpart at Dow to talk about pricing. A Bayer European senior executive told his subordinates, in encouraging them to hold firm on announced lock-step price increases, that they need not worry about customers being poached by competitors, as the competitors had been "talked to". When questioned whether that was illegal, the senior executive stated "not in this country," referring to Germany. There was testimony from Dow’s North American head for one urethane chemical of attending numerous meetings in which her boss and one of her counterparts for a different urethane chemical at Dow discussed pricing communications with competitors, including reaching agreements.

The direct evidence was corroborated with circumstantial evidence creating strong inference of collusion. First, there were the lock-step price increase announcements, which Dow’s expert, Professor Kenneth Elzinga, conceded were "hallmarks" of collusion. There was evidence of unusual patterns of telephone calls and meetings among key competitors just prior to these lock-step price increase announcements. One such episode was particularly incriminating. Just prior to a lock-step price increase announcement, a senior executive at BASF sent an email to one of his colleagues stating that he was seeking to determine what Huntsman was going to do about the price increase. There then was proof that just prior to sending that email, the BASF executive made a phone call (but apparently did not connect because the duration of the call was very short) to his counterpart at Huntsman; and just after the email, he made a number of calls to this Huntsman executive. Shortly thereafter, Huntsman and BASF both joined the price increase. Further circumstantial evidence included steps taken by the participants to keep their conduct secret. For example, one Dow executive who was meeting with Bayer counterparts about legitimate business issues then, expressing concern about possible eavesdropping bugs, suggested moving outside the building so they could talk privately about firming up adherence to previously announced, lock-step price increases.

Finally, we had excellent expert testimony supporting a finding of collusion. Our liability expert, Professor John Solow, testified that his economic investigation showed that the structure, conduct and performance of the urethanes industry were consistent with collusion, explaining how his opinions were consistent with other evidence presented to the jury. He further explained to the jury how conduct characterized by Dow’s expert economist, Professor Elzinga, as competition was in fact examples of cheating on the conspiracy and resultant policing by cartel members. Our damages expert, Dr. James McClave, presented to the jury his statistical analysis showing widespread supra-comeptitive prices during the class period impacting all or nearly all class members.

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Tubach: Plaintiffs typically rely on three main types of evidence in price-fixing cases. First, they rely on evidence of defendants’ conduct to show an illegal agreement. When they exist, plea agreements can go a long way toward satisfying this burden. However, plaintiffs’ allegations are often broader than the conduct described in the plea agreements, and plaintiffs must then offer additional evidence to support their case. In the absence of a plea agreement, or to supplement one, plaintiffs offer up evidence of defendants’ conduct. The more colorful the evidence, the better for plaintiffs. In Urethanes, for example, plaintiffs painted defendants’ executives as "businessmen behaving like spies," and presented evidence that they had made calls to competitors from gas station pay phones. Plaintiffs also were able to present evidence of an internal whistleblower at Dow.

The second type of evidence consists of pricing information. Plaintiffs use pricing information to demonstrate that defendants made pricing decisions consistent with whatever pricing discussions or agreements plaintiffs claim defendants had. Plaintiffs might show, for example, that several competitors increased prices at exactly the same time shortly after they met.

Finally, plaintiffs generally offer expert evidence to show that they suffered impact and damages as a result of the alleged conspiracy, typically by submitting an economist’s testimony that customers paid more for the product at issue than they would have paid absent the alleged conspiracy.

A defendant can employ several strategies in response. Particularly in the absence of a plea agreement, defendants will almost always seek to rebut evidence of an illegal agreement. They may seek to show that any communications between competitors were either part of legitimate interaction, or at the least did not result in any agreement to fix prices. For example, exchange of pricing information would be entirely legitimate if competitors were each other’s customers and the pricing information exchange was part of those legitimate sales. It is not unusual for companies to buy from and sell to their competitors. In the Urethanes case, for example, Dow and its competitors engaged in "swaps." Joint ventures, when they exist, also can justify limited exchanges of pricing information. Evidence that communications took place in the context of a trade association also can be helpful to defendants seeking to explain that competitor communications are not evidence of an illegal agreement. Alternatively, defendants can introduce affirmative evidence of fierce competition between alleged co-conspirators to cast doubt on plaintiffs’ assertion that they were cooperating to fix prices. For example, defendants can argue that they used the pricing information from their competitors to help them undercut the competitors and win more business.

A second strategy defendants can employ is to show that the prices charged had nothing to do with competitor contacts. For example, defendants can tie changes in prices to economic factors such as changes in underlying costs or demand. A similar approach would be to explain that plaintiffs’ evidence reflects common pricing dynamics, not an illegal agreement. Competing gas stations often change their prices in tandem, and such parallel price changes, without more, do not show that prices were set as a result of a conspiracy.

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Finally, defendants can show that even if announced prices are similar, there is often considerable negotiation, particularly with large customers, over the prices that the customers actually pay.

Of course, every case has unique features, and defendants will use whatever facts and arguments work best in that case in an effort to defeat plaintiffs’ claims of a conspiracy.

Moderator: Oftentimes in price-fixing conspiracy cases, the United States government has brought charges, which can be used by civil plaintiffs in trial as substantive evidence of the defendant’s guilt (although limited to the factual basis articulated in the plea agreement). There were no indictments or plea agreements in the Urethanes matter. How does the lack of criminal charges impact a civil trial of a conspiracy case?

Goldberg: Setting aside the presence of interstate commerce, which is usually not at issue in cartel cases, the essential elements of a recovery for plaintiffs raising a price-fixing claim are: (1) the existence of a price-fixing conspiracy and the defendant’s participation in it; (2) the conspiracy had an effect on the prices paid—called "fact of injury" or "impact";¹⁰ and (3) the calculation of damages. These essential elements were reflected in questions 1, 2 and 6 of the jury verdict form in the Urethanes trial. Section 5 of the Clayton Act, 15 U.S.C § 16, makes a merits determination in a prior criminal or civil proceeding against the defendant as to the same conspiracy under the Sherman Act prima facie evidence of the existence of the conspiracy and the defendant’s participation in it in the later proceeding. But, that prima facie evidence, while being powerful proof as to the first essential element of the subsequent claim, does not address the second or third essential elements—fact of injury and damages. In Urethanes, the lack of a prior criminal conviction (or civil judgment) increased the importance for us of putting together the strongest factual case to persuade the jury that there was a conspiracy and Dow’s participation in that conspiracy. We marshaled substantial evidence, put on a strong case and were able to convince the jury. The lack of a prior conviction had no effect on proof of the second or third essential elements of our claim.

Tubach: In the absence of criminal charges, plaintiffs must prove a conspiracy from scratch, and defendants stand a much better chance of convincing a jury there was no illegal agreement. The existence of a guilty plea fundamentally changes the case, because it affects the extent to which a defendant realistically can challenge the requirement of an agreement. Section 5(a) of the Clayton Act empowers plaintiffs to use a guilty plea as prima facie evidence of the defendant’s participation in a conspiracy even if the party cannot claim collateral estoppel. As an initial matter, § 5(a) will be superseded by conventional collateral estoppel analysis because courts have eliminated mutuality requirements for collateral estoppel. See, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 (1979). As a result, even when § 5(a) would otherwise apply, private parties generally can obtain estoppel from guilty pleas when the government could do so. If collateral estoppel is found to apply, a plea can preclude a defendant from contesting one or more elements of plaintiffs’ claim. In practice, there often is a critical caveat to this analysis: Plaintiffs can obtain collateral estoppel only to the extent their allegations track the content of the plea agreement. To obtain estoppel, they must establish that the guilty plea actually and necessarily decided the identical issue on which they seek estoppel. If the conduct described in the plea and plaintiffs’ allegations is not identical, § 5(a) applies, and courts can admit a defendant’s plea agreement as non-conclusive, rebuttable evidence of conspiracy for the jury to weigh alongside other evidence.

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Section 5(a) and the collateral estoppel doctrine help plaintiffs establish the existence of an illegal agreement, but they often do nothing to help plaintiffs establish that they suffered harm as a result of the conduct they cite in their complaint. A guilty plea therefore tends to sharpen the parties’ focus on the "impact" of an alleged conspiracy. Nevertheless, this element of plaintiffs’ case typically is contested regardless of whether a defendant has pled guilty, and it was contested in the Urethanes trial.

The existence (or absence) of a guilty plea also affects the likelihood of settlement. Companies that have pleaded guilty rarely proceed to trial. And if they do, defendants that have pleaded guilty face hurdles in terms of how they are perceived by the jury. Defendants that have not pleaded guilty begin on a neutral footing, and as an initial matter likely have greater credibility with the jury.

Moderator: All of the defendants settled before trial except Dow. Were those settlements revealed to the jury during trial? How did the settlements impact the litigation against the remaining defendant, if at all?

Goldberg: We settled with all four defendants, other than Dow, prior to trial for a total of $ 139 million. Those settlements have been distributed to the class. Consistent with pretrial motions in limine filed by both class plaintiffs and Dow, neither the fact of settlements nor the amount of settlements was disclosed to the jury. Instead, the Court instructed the jury that the absence of other urethane manufacturers from the trial was of no concern to them. The proof at trial fully (including video deposition testimony of current or former employees of the settled defendants) supported the jury’s finding that there was a conspiracy among Dow and the other four producers of urethanes in the United States. After the jury verdict and denial of the post-trial motions, the judge entered a judgment in favor of the class for treble the jury’s damages finding, minus the total settlement amount, slightly less than $ 1.1 billion.

Tubach: Prior to trial, Plaintiffs moved to exclude any reference to or evidence regarding the terms of the settlements with Bayer, BASF, Huntsman and Lyondell, likely fearing that disclosure of the terms would lead jurors to offset their damage award against Dow by the amount already obtained from the settling defendants, or to conclude that those settling defendants were more culpable than Dow. Simultaneously, Dow moved to exclude any reference to or evidence regarding both the terms of the settlements and the very existence of the settlements. Dow’s concern was that jurors would be more likely to conclude that plaintiffs’ case had merit if they were aware that the other alleged conspirators had already settled. Both motions were granted by the court two weeks before the start of the trial.

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At trial, both sides abided by the court’s ruling, seemingly without issue. The other four companies were frequently referred to as (alleged) co-conspirators, with no reference made to the fact that only Dow was defending itself. The closest either side came was when Dow’s attorney, in his opening statement, noted that "Dow’s the only defendant here. Your verdict will be for or against Dow. There are other companies that are not before you here." Dow made no attempt (in its opening or closing statements) to paint the other parties as uniquely culpable, or to suggest that there was a conspiracy, but that Dow did not join it.

The jury asked no questions regarding the settling defendants, and, based on their verdict, did not appear to discount their damages award to reflect the participation of other parties in the conspiracy.

Moderator: Before the case went to trial, the court refused to decertify the purchaser class. Dow contends that the trial court erred in not decertifying the class based on the U.S. Supreme Court’s ruling in Comcast. Can you please explain the impact of that decision on the Urethanes matter?

Goldberg: After the jury verdict in Urethanes, Dow raised Comcast in its post-trial motions, arguing that the testimony of plaintiffs’ damages expert, Dr. McClave (the same expert whose opinions were at issue in Comcast), was divorced from plaintiffs’ price-fixing theory of liability. Judge Lungstrum correctly ruled that Comcast was irrelevant to the jury’s verdict on two bases: (1) the significant difference in the procedural postures of Comcast (addressing class certification) and this case (after trial and a jury verdict); and (2) Dr. McClave’s testimony to the jury that prices during the relevant conspiracy period were higher than they would have been absent collusion and that these supra-competitive prices impacted all or nearly all class members "provided the causal link" between the damages estimate and the plaintiffs’ price-fixing theory of recovery that was considered missing in Comcast.¹¹ Urethanes Post-trial Motions Op. at 9. Dow makes similar Comcast arguments on appeal to the Tenth Circuit Court of Appeals.

Tubach: The court certified the class on July 28, 2008, but Dow did not move to decertify until January 22, 2013—one day before the start of the jury trial. Their focus was on the purported failings of the work of Plaintiffs’ expert econometrician, James McClave’s, which had been filed in April 2011. The court found these challenges untimely, coming on the eve of trial, noting that "[r]econsideration 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 and who might find it much more difficult to assert individual claims at this time." Thus the court rejected the motion to decertify as untimely except with respect to issues based on events occurring at trial or based on the Supreme Court’s Comcast opinion, which was handed down two months after the trial, and was addressed in Dow’s reply motion in support of decertification.

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The court further stated that Dow’s arguments for decertification failed on the merits, including the claim that certification was improper because, under Dr. McClave’s model, some class members did not suffer damages. The court relied on Messner v. Northshore University Health System and Kohen v. Pacific Inv. Mgmt in holding that "the presence of a few ‘zero-damages’ class members" does not "necessarily defeat[] certification." Relying on those decisions, the court distinguished between classes containing members who could not have been injured by defendants’ conduct, as opposed to those containing members who were ultimately shown to have suffered no harm. This emphasis on customers who could not have been injured was echoed three months later in the D.C. Circuit’s decision in Rail Freight.

Regarding Comcast (in which McClave’s model was found to be insufficient), Dow argued that the Supreme Court’s decision "highlights the significance of Dr. McClave’s inability to establish causal links between the conduct challenged at trial and injury/damages to Class members." Specifically, McClave could not, according to Dow, separate the effects of the conduct challenged at trial from the effects of other anticompetitive conduct not challenged, nor could he attribute the damages he calculated to the specific anticompetitive conduct alleged by Plaintiffs.

The Court rejected this argument, holding that Dow had failed to challenge this aspect of McClave’s opinions before trial, and that McClave’s testimony at trial in fact was sufficient to establish the necessary causal linkage. Whereas McClave’s reports at the certification stage had assumed that Dow both fixed prices and allocated customers (which latter allegation was subsequently abandoned by Plaintiffs), his opinions at trial based the conclusion of classwide impact only on the allegation of price-fixing.

Moderator: The Urethanes trial resulted in the largest jury verdict of last year in a Sherman Act case—of $400 million. How did the plaintiffs prove up those damages to a jury? How did the defense defend against that number?

Goldberg: Plaintiffs’ damages expert, Dr. McClave, presented the jury with his opinions that prices were elevated above competitive levels during the class period from 1999 through 2003 and his calculation of the total amount of those inflated prices on the class. Dr. McClave described to the jury the statistical analysis—a forecasting multiple regression model—he employed to estimate the supra-competitive prices and to calculate the damages. Since, in Urethanes, we sought damages beyond the statute of limitations period, Dr. McClave presented a damages number for the full period, 1999—2003, of approximately $ 1.125 billion; and for the statute of limitations period, November 2000 — 2003, of approximately $ 496 million. Dr. McClave also presented damages numbers for each of the named plaintiffs and testified that his statistical models showed that the price-fixing conspiracy caused inflated prices across all products, all defendants, both large and small customers, impacting all or nearly all customers. Dow’s damages expert, Dr. Keith Ugone, offered technical criticisms of Dr. McClave’s statistical modeling, but did not present to the jury an alternative damages number. Dr. McClave responded to each of Dr. Ugone’s criticisms of his methodology, showing both that the criticisms were in error and that when properly applied, did not make damages go away but rather served only to reduce damages. The jury found that damages should be limited to the statute of limitations period and awarded damages of approximately $ 402 million, approximately 80 percent of Dr. McClave’s damages number for that period.

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Tubach: As with virtually all price-fixing cases, plaintiffs used expert testimony to estimate what the prices would have been absent the alleged conspiracy. By comparing those estimates to actual prices, plaintiffs produced an overcharge estimate of $1.125 billion. Trial Tr. at 2832-34. Expert testimony, however, was not the only reason for plaintiffs’ success. A key factor likely was plaintiffs’ story—full of colorful facts and outlandish behavior. It was one about "businessmen behaving like spies": using gas station pay phones to call competitors, falsifying business records, meeting in dark hotel hallways, avoiding conference rooms for fear of listening devices, and threatening those who might expose suspicious communications. Trial Tr. at 158-187. Combined with nearly identical price announcements over a five-year period, this suspicious behavior likely helped sell the jury on a large damages figure.

The plaintiffs also deserve credit for embracing many of Dow’s strongest rebuttal arguments. Plaintiffs acknowledged that they were seeking a lot of money in damages. They countered, however, that Dow and its co-conspirators made billions of dollars over the multi-year conspiracy. Plaintiffs also embraced the fact that Dow competed with its co-conspirators, explaining that hearty competition was actually to blame for the conspiracy—the companies didn’t want a price war to undercut their profits. And plaintiffs acknowledged that Dow and its co-conspirators had many legitimate reasons for discussions. But plaintiffs emphasized that in addition to legitimate conversations, the defendants regularly had what plaintiffs described as illicit and elaborately disguised price-fixing discussions.

Dow defended against plaintiffs’ claims by arguing (1) the polyurethane market was an oligopoly and many of the complained-of actions were legitimate consequences of such markets; (2) almost every witness denied knowledge of pricing agreements; (3) announced prices, even if similar, did not always reflect the amount paid by customers; and (4) plaintiffs could not prove the exact conspiracy alleged—for all products, over the entire class period, involving all defendants.

Moderator: In May of last year, Dow was ordered to pay $1.2 billion (treble damages). What is the status of the Urethanes case today? What will be the key points on appeal?

Goldberg: Dow filed a full array of post-trial motions to set aside the verdict and to decertify the class. The district court denied all of Dow’s post-trial motions and entered judgment of three times the jury finding of damages, less the settlements, approximately $ 1.1 billion. The media reports that the jury verdict in Urethanes is the largest jury verdict of 2013 and the largest jury verdict in a price-fixing case in the history of the Sherman Act. Dow posted an agreed-upon bond of $ 400 million and has appealed to the United States Court of Appeals for the Tenth Circuit. The appeal is pending. Dow has filed its opening brief in the court of appeals, raising issues similar to those it raised in its post-trial motions and rejected by Judge Lungstrum. We filed our response brief on February 14, 2014; and Dow filed its reply brief on March 7, 2014.

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Tubach: The Urethanes case currently is on appeal before the Tenth Circuit. The trial court judgment—which was reduced slightly to $1.06 billion to account for prior settlements—currently is stayed pending final resolution of the appeal. In the interim, Dow has posted a $400 million bond. Doc. 3048. A related proceeding, referred to as the "Direct Action" proceeding, is progressing in the district court. The Direct Action case was brought by a number of entities that opted out of the class action. Although closely related to the class proceedings, the Direct Action raises a handful of additional allegations, including that the conspiracy began in 1994, that defendants violated European Union law, and that additional defendants were involved in the conspiracy. See Doc. 1383; In re Urethane Antitrust Litig., 683 F. Supp. 2d 1214 (D. Kan. 2010). Expert discovery is ongoing.

Among the key issues in the Urethane appeal, three are worth highlighting:

• The adequacy of plaintiffs’ expert modeling. The Tenth Circuit must determine whether plaintiffs’ damages model adequately tracks the alleged conspiracy. Plaintiffs’ model estimated damages caused by price-fixing and allocation of customers and markets. At trial, however, plaintiffs sought to prove only price-fixing. A similar inconsistency doomed plaintiffs’ expert (McClave) in Comcast. 133 S. Ct. 1426, 1433 (2013). Relatedly, plaintiffs’ model estimated hundreds of millions of dollars in overcharges for a period (1999-2000) during which the jury found no conspiracy. False positives call into question the validity of the entire model. In re Rail Freight Fuel Surcharge Antitrust Litig, 725 F.3d 244, 252-53 (D.C. Cir. 2013).
• The Rules Enabling Act. Dow argues that it should have had the opportunity to demonstrate in individual proceedings that particular class members could not establish injury and impact. Whether plaintiffs’ models and the inferences drawn therefrom adequately safeguarded Dow’s substantive rights will be central to the appeal. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011) (discussing the Rules Enabling Act, 28 U.S.C. § 2072(b)).
• Predominance. Plaintiffs’ expert built a model that analyzed impact and damages for roughly one-quarter of the class. From there, he extrapolated his estimates to the remaining three-quarters of the class. Whether this meets the Supreme Court’s requirement that proof of impact be possible in "one stroke," Wal-Mart, 131 S. Ct. at 2550-51, is another key issue on appeal.

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Notes:

^*. Heather Tewksbury is a partner at Wilmer Cutler Pickering Hale and Dorr LLP in Palo Alto, California. Before joining Wilmer Hale earlier this year, she served as a Trial Attorney in the United States Department of Justice, Antitrust Division where she prosecuted international price fixing cartel cases.

^1. Third Amended Complaint for Antitrust Violations, Animal Science Prods., Inc. v. Hebel Welcome Pharm. Co., No. 1:05-CV-00453 (DGT)(JO) (E.D.N.Y. filed Dec. 2, 2008), ¶ 48.

^2. Id. at ¶ 60.

^3. Id. at ¶ 62.

^4. In re Vitamin C Antitrust Litig., 584 F. Supp. 2d 546, 560 (E.D.N.Y. 2008).

^5. In re Vitamin C Antitrust Litig., 810 F. Supp. 2d 522, 554 (E.D.N.Y. 2011).

^6. Motion for Summary Judgment by Hebei Welcome Pharm. Co., Ltd., No. 1:05-CV-00453 (DGT) (JO) (E.D.N.Y. filed Nov. 23, 2009).

^7. Id. at 552.

^8. Throughout the litigation and trial, plaintiffs disputed that a Chinese Chamber of Commerce representative was a government official, and argued instead that the Chambers were voluntary trade associations. In post-trial briefing, the district court agreed with plaintiffs that the jury could have found that the Vitamin C subcommittee of the Chamber was a trade association.

^9. There was no DOJ investigation prior to the filing of these class action complaints. Subsequent to filing, the DOJ opened an investigation into the urethanes market but closed it without taking any action.

^10. In a price-fixing class action, this "impact" or "fact-of-injury" requirement is modified to require that the impact was felt generally by the class—that all or nearly all class members were impacted by the conspiracy.

^11. Judge Lungstrum also ruled that Dow’s motion to decertify the class, which in part relied on its Comcast argument, was untimely—having been filed literally on the eve of trial. Judge Lungstrum also ruled that a number of arguments Dow raised in its post-trial motions had been waived, Dow having failed to raise those arguments previously at appropriate times pre-trial. In each case where Judge Lungstrum ruled that Dow’s arguments were waived or were untimely, he also rejected the arguments on their merits.