In re Urethane Antitrust Litigation

166 F. Supp. 3d 501, 2016 U.S. Dist. LEXIS 14394, 2016 WL 2650517
District Court, D. New Jersey·Decided January 25, 2016·No. Civ. No. 2:08-5169 (WJM-MF)·Published·Cited by 2 cases

Opinion

[502] OPINION

WILLIAM J. MARTINI, UNITED STATES DISTRICT JUDGE.

Plaintiffs are urethane purchasers who accuse Defendant Dow Chemical Company (“Dow”) of conspiring with others to fix the prices of urethanes. At trial, Plaintiffs intend to call a damages expert, Dr. Leslie Marx, who plans to testify regarding econometric regression models developed for this litigation. According to Plaintiffs, the regression models show what urethane prices would have been had there been no conspiracy. The difference between the actual and “but for” prices represents the measure of Plaintiffs’ damages.

Dow now moves to exclude Dr. Marx’s testimony pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Phanns., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In connection with Dow’s motion, the Court held a Daubert hearing on January 13, 2016. For the reasons that follow, Dow’s motion is DENIED, subject to the Court reserving on whether Dr. Marx will be permitted to opine that the variances detected in her models are attributable to the alleged conspiracy or are otherwise consistent with the evidence of the conspiracy as a whole.

I. BACKGROUND

Plaintiffs accuse Dow of conspiring with others to issue simultaneous price announcements in order to artificially inflate urethane prices. At issue in this opinion is the proposed testimony of Plaintiffs’ expert, Dr. Marx. Initially, Plaintiffs enlisted a different expert — Dr. Matthew Raiff — to testify in connection with this lawsuit. However, intervening circumstances required Plaintiffs to substitute Dr. Marx for Dr. Raiff. On August 13, 2013, the MDL Court issued an order stating that “Dr. Marx, the new expert, will not be permitted to develop her own opinions or methodologies, but must endorse and- defend Dr. Raiffs opinions.” Mem. & Order, Aug. 13, 2013, at 2, 04-md-1616 (D.Kansas), ECF No. 2974. Accordingly, on September 20, 2013, Dr. Marx filed an expert report that evaluated Dr. Raiffs methodologies and ultimately concluded that his methodologies were sound. In her report, Dr. Marx furthér indicated that she is “readily able to sponsor and defend Dr. Raiffs methodologies, opinions, and conclusions at trial.” Marx Rpt. at ¶ 12.

Dr. Marx intends to provide testimony regarding a regression analysis Dr. Raiff performed in connection with this case. Generally, the regression analysis purports to show what the prices of three types of polyether polyol products “PPPs” (MDI, polyol, and TDI 80/20) would have been but for the price-fixing conspiracy. Therefore, there are separate regression models for MDI, polyols, and TDI 80/20. See Rev. Raiff Reply, at ¶ 1. In connection with this analysis, Dr. Raiff, and later Dr. Marx, were instructed to assume the existence of a conspiracy. Marx Dep. at 217:1-19.

Dr. Raiffs regression models can be characterized as “forecasting” models or models that are predictive in nature. The models initially base themselves off data derived from a period when there was no conspiracy, known as the “benchmark period.” Next, the models are run across the conspiracy period in order to show what PPP prices would have been had there been no conspiracy. The difference between the “but for” prices and actual prices during the conspiracy measures the extent of Plaintiffs’ damages. See Pis. Opp’n at 10-14.

As stated above, the first step in conducting a regression analysis is to formulate a pricing model based on a non-eollu-sive benchmark period. The non-collusive period serves as the benchmark because it captures normal supply, demand, and cost factors untainted by any conspiracy. In other words, it serves as the control group [503] in Dr. Raiffs regression analysis. Pis. Opp’n at 17.

When formulating his forecasting models, Dr. Raiff was required to select explanatory variables to incorporate into the applicable regression equations. Rev. Raiff Rpt. ¶ 245. Those variables included, among other things, treasury rates, wages, and costs of various chemicals. Id., Fig. 44. Dr. Raiff selected variables after “studying the urethanes industry” and identifying “key economic factors for predicting urethanes prices.” Rev. Raiff Reply at 61. According to Dr. Raiff, the variables are based on “economic judgment and well-established econometric criteria.” Rev. Raiff Rpt. at ¶ 274. Dr. Raiff also supplemented his variable selection process with other statistical modeling tools that the Court will address later in this opinion. See Rev. Raiff Reply, at ¶ 62.

Next, Dr. Raiff was required to assign an appropriate coefficient to each selected variable. According to Dr. Raiff and Dr. Marx, the coefficients for each variable are harmonized in a manner so that the models show how the variables collectively impact PPP prices. Rev. Raiff Reply at ¶¶ 92, 93; Marx Rpt. ¶ 66. Therefore, when selecting coefficients, Dr. Raiff assessed how all of the selected variables operated as a whole. See id.

Once Dr. Raiff was confident that his regression models could accurately predict PPP prices during a given time period, his next task was to apply the models to the conspiracy period, January 1994 through December 2003. See, e.g., Rev. Raiff Rpt. at ¶273. Dr. Raiff accomplished this by inputting both the actual values for his December 1993 cost and demand variables along with the actual December 1993 price of the relevant PPP. This step generated the predicted PPP price for January 1994. Id. at ¶ 280. Dr. Raiff then repeated this process in order to obtain the predicted price for February 1994, but used the predicted January 1994 price instead of the actual January 1994 price. Id. He then ran this process along the entirety of the conspiracy period, and then through the post conspiracy period of January 2004 to December 2008. In other words, actual PPP prices for December 2003 were used to get the model off and running-after that, prices were forecasted based on how the model was constructed. See id.

After running the models along the conspiracy period, Dr. Raiff compared the predicted prices with the actual prices. The difference between the two represents what prices would have been in a normal, conspiracy-free environment. Where actual prices exceed but for prices, there is an overcharge. See Marx Rule 26 Disclosure at ¶¶ 41.

Dr. Raiffs regression analysis takes another step by seeking to predict prices for every urethanes transaction between Plaintiffs and Defendants. Rev. Raiff Rpt. ¶¶ 283-288. These “transaction-level models” seek to calculate damages for each individual Plaintiff by analyzing individual transactions. Id. at 283. Unlike the market-wide models, the transaction-level models seek to take into account “idiosyncratic factors” unique to the individual Plaintiffs. Id. at 287. “Such factors include (but are not necessarily limited to) the identity of the customer and the nature of the relationship (and contract, if any) between the customer and the vendor.” Id. The calculated overcharges from these models represent the extent of each Plaintiffs damages. See id.

II. DISCUSSION

Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides the following:

Free access — add to your briefcase to read the full text and ask questions with AI

In re Urethane Antitrust Litigation, 166 F. Supp. 3d 501, 2016 U.S. Dist. LEXIS 14394, 2016 WL 2650517 (D.N.J. 2016).

166 F. Supp. 3d 501 (In re Urethane Antitrust Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related