Classwide Damage Models in Misleading and False Advertising Consumer Class Actions

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, May 27, 2020

Recorded event now available

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Program Materials

This CLE webinar will discuss the types of classwide damage models that plaintiffs use to obtain certification and how to advance or oppose each of these types of damages. The program will discuss the use of expert witnesses to testify about the plaintiffs' damage calculations and defense experts to attack the damage models.


In Comcast Corp. v. Behrend, the U.S. Supreme Court held that a damages model that failed to measure damages according to the actual theory of liability was precluded. Later, in Tyson Foods Inc. v. Bouaphakeo, the Supreme Court noted the defendants conceded that Rule 23 does not require all class members to be injured and held that a plaintiff needs to put forth a model to weed out injured from uninjured class members at the certification stage.

Further complicating the picture--as courts grapple with issues of injury, aggregate proof, standing, and the distinct legal requirements of different legal claims--are the variety of methods to calculate damages. These include surveys, choice-based conjoint analysis, event studies, full refund and price premiums, and others. Many use different forms of regression analysis and inferential statistics.

Challenges to these damage models typically arise at the certification stage. Counsel for both plaintiffs and defendants need to understand these damage models and how to use expert witnesses to testify about the plaintiff's damage calculations and how to attack the plaintiff's damage models.

Listen as our panel reviews the legal landscape and what it means in practice for there to be a nexus between the theory of harm and the damages model. The panel will analyze the different classwide damage models and how to effectively use expert witnesses to prove or attack the plaintiffs' damages.



  1. Overview of damages post-Comcast and Tyson
  2. Types of damage models and use of expert witnesses; topics may include:
    1. Full refund model
    2. Price premium model
    3. Benefit of the bargain
    4. Regression model
    5. Survey damages
    6. Statutory damages
    7. Injunctive relief
  3. Use of damages experts and Daubert challenges in class certification proceedings
  4. Recent case law and analysis


The panel will review these and other key issues:

  • Analysis of the various current classwide damage models
  • The relevant legal backdrop for what a damages model does (and does not) need to accomplish at Rule 23
  • Specific trends in Daubert challenges


Geman, Rachel
Rachel Geman

Lieff Cabraser Heimann & Bernstein

Ms. Geman’s practice is dedicated to employment law, consumer protection and False Claims Act litigation. Her...  |  Read More

Phillips, Robert
Robert D. Phillips, Jr.

Alston & Bird

Mr. Phillips is a business litigator with nearly 40 years of experience assisting numerous companies in high-stakes...  |  Read More

Tomlin, Jon
Jon Tomlin

Senior Managing Director

Mr. Tomlin is a leading economic expert in the areas of economic damages and antitrust and has advised clients in each...  |  Read More

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