Did Dow Know the $1.2B Antitrust Charge against It?, The Atlas Society

“The absurdity of its premise — that Dow could escape liability for an illegal antitrust conspiracy because plaintiffs alleged a longer conspiracy than found by the jury — convinces the court that it should not [let Dow off the hook.]”

So said U.S. District Judge John W. Lungstrum, in the only quote on the issue in this Bloomberg report, and at first read it sounds obviously right. Whatever one may think of antitrust law, surely a $1.2 billion illegal conspiracy doesn’t become legal just because the plaintiffs who sued over it were off on the dates. (The plaintiffs said the conspiracy ran from 1999 through 2003; the jury apparently put the start date in 2000.) If you’re accused of killing your wife on a Friday, you shouldn’t get off just because the jury said you did it that Saturday instead.

Or should you? Suppose your defense was based on rock-solid evidence about where you were on Friday, and you never thought to provide an alibi for Saturday, because the prosecution never suggested you did anything wrong on Saturday. And when the jury said you committed the murder Saturday, that might have been because it accepted your evidence that you were elsewhere on Friday—and had you presented evidence about the whole period from the last time your wife was seen alive until you came home and discovered her corpse, the jury might have said you couldn't have done it. In such a case, which is absurd: to convict you of murder, to set you free, or to give you a new trial?

The antitrust case is more complicated: Dow Chemical is accused of setting the prices of certain products in collaboration with competitors —what antitrust law calls a “conspiracy” to “fix prices”—over a period of several years. But Dow argues that it’s essentially similar to the murder scenario: that the case each side presented to the jury was shaped by the time period involved, and that the defense didn’t argue against a shorter conspiracy because the plaintiffs never argued for one. If the timing was as critical in this real, $1.2 billion civil antitrust case as in my hypothetical murder case, that means Dow never made the case it needed to make, because it never realized what case it needed to answer. And that is not an absurd concern. If you don’t know what case you need to answer, it is very difficult to defend yourself.

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