The Tenth Circuit recently affirmed class certification and a $400 million class-wide damages award (trebled to  over $1 billion) against the Dow Chemical Company in In re Urethane Antitrust Litigation, No. 13-3215 (10th  Cir. Sept. 29, 2014). In Urethane, polyurethane purchasers advanced a price-fixing theory and sought damages based on the "impact" of the alleged antitrust injury. Plaintiffs offered an expert model that purported  to calculate prices in a competitive market, compared those prices to the actual "overcharge" prices, and  extrapolated damages to the entire class. Dow challenged the trial court's decision to allow the class to  proceed on this basis, citing Wal-Mart Stores, Inc.v.Dukes, 131 S.Ct. 2541 (2011) and Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013). But the Tenth Circuit distinguished Dukes in a different way than the Ninth  Circuit in Jimenez (discussed above). Here, the court noted that the plaintiffs "did not seek to prove Dow's  liability through extrapolation" but only to "approximate damages" which Dukes "does not prohibit." The court  also rejected Comcast's application, noting that whereas in Comcast the district court had to determine before  trial whether the plaintiffs could prove class-wide damages, here "the district court did not need to predict what  would predominate at trial because by the time Dow raised this issue, the trial had already taken place." The  precedential effect of this part of the decision is unclear, however, given that court went on to explain Dow  waived certain decertification arguments or raised them too late.

After addressing class certification, the court also went on to affirm the jury verdict of $400 million, rejecting  Dow's Seventh Amendment argument on the grounds that "Dow has no interest in the method of distributing  the aggregate damages award among the class members."