Foundation Files Brief in Major Class Action Case


Atlantic Legal has filed a brief in the Supreme Court of the United States in Carpenter Co., et al. v. Ace Foam, Inc., et al. in support of a petition for certiorari filed by defendants. The case, also known as In re Polyurethane Antitrust Litigation, is an antitrust class action by two classes, direct and indirect purchasers of polyurethane, used mainly as filler for such products as furniture and furnishings. The Sixth Circuit certified two massive classes, which assert combined damages of over $9 billion. Petitioners characterize this as gargantuan – likely the largest ever certified and upheld by a federal court of appeals – that sweeps together dissimilar purchasers of a vast number of distinct products sold by disparate groups of defendants, and covers a kaleidoscope of different purchasers and products, ranging from furniture manufacturers purchasing seat padding, to individuals buying foam pillows.

The thrust of the petition for certiorari is that the two classes contain many purchasers who did not suffer any injury, and certification of those classes violates the Article III requirement that all class members have standing. As a separate ground for review, petitioners argue that individual damages calculations overwhelm common issues, in violation of the Supreme Courts decision in Comcast Corp v. Behrend, 133 S. Ct. 1426 (2013). Petitioners also argue that the district court used an aggregate approach to measuring damages and this improperly obscures the differences among class members, resulting in windfalls for some while potentially undercompensating others, and strips class action defendants of their right to present defenses to individual claims, in violation of the Rules Enabling Act, due process, and the Courts decision in Wal-Mart Stores, Inc., v. Dukes, 131 S. Ct. 2541, 2561 (2011).

Atlantic Legals brief, which was joined by the International Association of Defense Counsel, focuses on whether certifying a class under Rule 23(b)(3) is improper when individualized damages issues predominate, and when plaintiffs rely exclusively on aggregate damages models that calculate damages purportedly incurred by the class as a whole, rather than by individual class members.

To view the Foundations brief, please click here.