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Dow Chemical Denies Conspiring to Fix Urethane Prices

A Dow Chemical Co. lawyer told a jury that the company didn’t conspire with other chemical makers to fix the price of urethane products used in the manufacture of cars, appliances and furniture.

Lawyers for Dow and suing urethane buyers delivered closing arguments today in federal court in Kansas City, Kansas, at the end of a four-week trial. The plaintiffs seek $1.125 billion in damages, one of their lawyers said today.

The case started in 2005 with allegations that Dow plotted with BASF SE, Huntsman International LLC and Lyondell Chemical Co. Only Midland, Michigan-based Dow didn’t settle.

“What kind of cartel is it where everybody is doing exactly what they would be doing otherwise?” David Bernick, a Dow lawyer, asked the jury of five women and two men. “There’s a difference between a conversation and an agreement, this is key,” he said, denying his client ever made such a pact.

At the center of the case are urethane-based products used in the automotive, construction, appliance and furniture industries. The plaintiffs contend that Dow and other companies illegally plotted to fix product prices in violation of U.S. law, attorney Joseph Goldberg said in court today.

“An agreement can be just a wink and a nod,” Goldberg told the jury. He said such schemes aren’t agreed upon in corporate board rooms; rather, they’re hatched in back rooms, on golf courses and over cocktails.

‘Overwhelming’ Evidence

“If it quacks like a duck and it walks like a duck, it can be a duck, even if you don’t see it,” he said, calling evidence of the price-fixing conspiracy “overwhelming.”

Bernick, the Dow lawyer, said the purchasers included industrial companies such as 3M Corp. and General Motors Co.

“When they don’t want to raise prices and we want to raise prices, they tell us to pound sand,” he said.

The trial before U.S. District Judge John W. Lungstrum began on Jan. 23. Lungstrum last year denied a motion for judgment in Dow’s favor, ruling that the claims of a conspiracy from 1999 to 2003 were sufficient to go before a jury.

“Each piece of evidence supports the other, such that a reasonable jury could find that an agreement existed,” Lungstrum wrote in his December ruling, citing testimony from executives at Dow and Bayer AG, which settled in 2006 and deposited $55.3 million into a settlement fund.

Case Transferred

Dow, BASF, Huntsman and Lyondell were first sued in federal court in New Jersey. The case was transferred to a multidistrict docket in Kansas City as part of litigation involving more than 60 plaintiffs, some of whom later opted out of the group litigation.

Bernick today told the jury the purchasers’ case was “empty of truth, empty of facts and empty of fairness.”

“What Dow did was wrong,” Goldberg countered in his rebuttal. “It colluded with its competitors and entered into a price-fixing conspiracy.”

Jurors deliberated for about three hours before adjourning for the day. They will resume their work at 8 a.m. Kansas City time tomorrow.

The case is In re Urethane Antitrust Litigation, 04-md-1616, U.S. District Court, District of Kansas (Kansas City).

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