On Monday, the Supreme Court issued its new round of orders from its February 27 conference. Among them was the denial of a petition for certiorari in a massive antitrust class action lawsuit—“likely the largest ever certified and upheld by a federal court of Appeals”—against manufacturers of polyurethane foam.
In Carpenter Co. v. Ace Foam (aka In re Polyurethane Foam Antitrust Litigation), after the district court certified the class of “potentially hundreds of millions” of purchasers of foam, the Sixth Circuit denied the defendant manufacturers’ petition for interlocutory review of the class certification. In seeking cert before the Supreme Court, the defendants argued that the classes, as certified, “contain vast numbers of uninjured members and (ii) individualized damages assessments are necessary to determine whether and to what extent any class member is entitled to damages.” Specifically, the petitioners wanted the Court to review whether the standing requirements of Article III apply to all members of a class certified under Rule 23, as well as whether the use of “aggregate damages models” was improper in certifying the class with individualized damages.
Although the High Court’s denial of certiorari (and the Sixth Circuit’s denial of interlocutory review, for that matter) were not momentous as a matter of law, they do allow this class action lawsuit to proceed, leaving several open questions on class issues post-Comcast.
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