The Urethane Blog

PU in the Courts

3 Appeals Over $151M Poly Foam Antitrust Deal Dropped

Law360, New York (May 19, 2016, 4:38 PM ET) — Three of four objectors to the $151.3 million antitrust settlement between a class of consumers and nine flexible polyurethane foam manufacturers have dropped their Sixth Circuit appeals, according to a trio of orders posted to the appeals court’s docket on Thursday.
The Sixth Circuit granted the objectors’ motions to voluntarily dismiss their appeals challenging the $151.3 million deal, which is said to be the fourth-largest antitrust recovery obtained by so-called indirect purchasers in the U.S. All three objectors had argued that the proposed 30 percent attorney fee award — more than $45 million — was too high, among other things. U.S. District Judge Jack Zouhary approved the deal in January.

Objector Sean Cochran, who bought a Tuft & Needle full-size mattress for $500 in February 2015 in California, had argued to the court that class counsel should get a cut of no more than 20 percent of the net settlement amount of $146,150,000. Specifically, he had contended that while a 30 percent fee may be customary for recoveries less than $50 million, it is “excessive” for settlements over $100 million.

Christopher Andrews, the one remaining objector in the Sixth Circuit, has appealed the district court’s order for the posting of a $145,463 bond amount, saying in a filing posted to the appeals court docket on Wednesday that the bond request by the indirect purchasers was “made in bad faith, is abusive, not done to protect the class and has to proven to be unaffordable contrary to the court’s opinion.”

The indirect purchasers who reached the deal with the manufacturers argued in the Ohio district court in March that objectors should have to put up an appeal bond and said they were trying to extort money from class counsel.

The indirect consumers — those who purchased products from the direct buyers that contained the foam — had accused a host of foam makers of conspiring since at least 1999 to fix the price of the polyurethane foam, which is widely used as cushioning and insulation in products such as bedding, packaging, flooring and cars.

Carpenter Co., FFP Holdings LLC, Future Foam Inc., FXI Holdings Inc., Hickory Springs Manufacturing Co., Mohawk Industries Inc., Vitafoam Products Canada Ltd., Leggett & Platt Inc. and Woodbridge Foam Corp. were all included in the January settlement.

Direct purchasers of the foam products, which were certified as a separate class and included a variety of foam, packaging and carpet companies that bought directly from the makers, were set to go to trial against six of the manufacturers in April, but on the eve of the trial the companies agreed to pay $275 million to end the dispute.

Attorneys for the objectors and for the foam makers did not respond to a request for comment Thursday.

The foam makers are represented by McGuireWoods LLP, Shook Hardy & Bacon LLP, Taft Stettinius & Hollister LLP, Alston & Bird LLP, Gibson Dunn, Freshfields Bruckhaus Deringer LLP, Barnes & Thornburg LLP, Sullivan & Cromwell LLP and Kutak Rock LLP, among others.

The indirect purchasers are represented by lead counsel Miller Law LLC, among others.

The case is In re: Polyurethane Foam Antitrust Litigation, case number 1:10-md-02196, in the U.S. District Court for the Northern District of Ohio.

–Additional reporting by Jeff Zalesin, Steven Trader and Melissa Lipman. Editing by Brian Baresch.