Dow Chemical 2015 Annual Report Download - page 120

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October 14, 2014, the Company filed a petition for Rehearing or Rehearing En Banc (collectively the "Rehearing Petition")
with the Court of Appeals, which was denied on November 7, 2014.
On March 9, 2015, the Company filed a petition for writ of certiorari ("Writ Petition") with the U.S. Supreme Court, seeking
judicial review by the Supreme Court and requesting that it correct fundamental errors in the Circuit Court opinion. While it is
unknowable whether or not the Supreme Court will accept the Writ Petition for review, there are several compelling reasons
why the Supreme Court should grant the Writ Petition and, if it is accepted, the Company believes it is likely that the District
Court judgment will be vacated. Specifically, it is the Company's position that the Tenth Circuit decision violates the law as
expressed by the Supreme Court as set out in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) and Comcast Corp. v.
Behrend, 133 S. Ct. 1426 (2013). The Tenth Circuit also did not follow accepted law from other federal circuits on dispositive
case issues, including legal precedent from the U.S. First, Second, Third, Fifth, Ninth and D.C. Circuit Courts. Finally, the
Company argues that the erroneous law applied by the Tenth Circuit is not supported by any other federal circuit court. In April
2015, six amici filed amicus briefs in support of the Company's Writ Petition. The parties briefing is now complete. Dow filed
its reply brief on May 22, 2015. On June 8, 2015, the Supreme Court granted a petition for a writ of certiorari in another case,
Tyson Foods, Inc. v. Bouaphakeo, PEG, et al., ("Tyson Foods") (Supreme Court No. 14-1146), which presented an issue core to
the questions presented in the Company's Writ Petition: whether class-wide damages can be determined by simply applying the
average injury observed in a sample. The Company's case was considered by the Supreme Court in conference on June 11,
2015. On June 15, 2015, the Supreme Court issued its decisions from its conference and did not rule on the Company's Writ
Petition. Subsequently, the Writ Petition has not been listed for further consideration by the Supreme Court at its weekly
conferences. The Company has been advised that this means that the Supreme Court is withholding further consideration of the
Company's Writ Petition while it considers the Tyson Foods case on the merits. As a result, the Company does not expect any
further action on its Writ Petition until sometime in 2016. The Company believes that the Supreme Court has accepted Tyson
Foods for the compelling reasons also advanced by the Company in its Writ Petition and that the Supreme Court will issue an
opinion in Tyson Foods that is favorable to the Company's case. Accordingly, on August 14, 2015, the Company filed an amicus
brief in Tyson Foods supporting Tyson Foods’ position. The Tyson Foods oral argument occurred before the Supreme Court on
November 10, 2015. The Company expects a decision from the Supreme Court on Tyson Foods in the first half of 2016, after
which, depending on the result, the Supreme Court likely will consider the Company's Writ Petition.
The Company has consistently denied plaintiffs’ allegations of price fixing and, as outlined above, the Company will continue
to vigorously defend this litigation. As with any litigation and based on various factors, the Company has had and may from
time to time pursue confidential settlement negotiations to resolve the matter. As part of the Company’s review of the jury
verdict, the resulting judgment and the Court of Appeals’ opinion, the Company assessed the legal and factual circumstances of
the case, the trial record, the appellate record, the briefing before the Supreme Court in Tyson Foods and the applicable law
including clear precedent from the Supreme Court. Based on this review and the reasons stated above, the Company believes
that the District Court judgment and decision from the Court of Appeals are not appropriate. As a result, the Company has
concluded it is not probable that a loss has been incurred and, therefore, a liability has not been recorded with respect to this
matter. While the Company believes it is not probable a loss will occur, the existence of the jury verdict, the Court of Appeals'
opinion, and subsequent denial of the Company's Rehearing Petition indicate that it is reasonably possible that a loss could
occur. The estimate of the possible range of loss to the Company is zero to the $1.06 billion judgment (excluding post-judgment
interest and possible award of class attorney fees).
Shortly after the July 2008 class certification ruling, a series of "opt-out" cases were filed by a number of large volume
purchasers who elected not to be class members. These opt-out cases are substantively identical to the class action lawsuit, but
expanded the period of time to include 1994 through 1998. On September 30, 2014, the opt-out cases, which had been
consolidated with the class action lawsuit for purposes of pre-trial proceedings were remanded from the District Court to the
U.S. District Court for the District of New Jersey. A consolidated trial of the opt-out cases is set to begin on March 7, 2016. As
with the class case, the Company denies plaintiffs' allegations of price fixing and maintains that the opt-out plaintiffs cannot
prove a compensable injury. As a result, the Company has concluded it is not probable a loss has been incurred and, therefore, a
liability is not recorded with respect to these cases.
In addition to the matters described above, there are two separate but inter-related matters in Ontario and Quebec, Canada. In
March 2014, the Superior Court of Justice in London, Ontario, ruled in favor of the plaintiffs’ motion for class certification.
The Company filed its Notice of Motion for Leave to Appeal in March 2014, which was subsequently denied. This matter is
currently in the pretrial stage, but no trial date has been set. The Quebec case has been stayed pending the outcome of the
Ontario case. For the same reasons stated above, a liability has not been recorded with respect to either Canadian matter.
Bayer CropScience v. Dow AgroSciences ICC Arbitration
On August 13, 2012, Bayer CropScience AG and Bayer CropScience NV (together, “Bayer”) filed a request for arbitration with
the International Chamber of Commerce ("ICC") International Court of Arbitration against Dow AgroSciences LLC, a wholly