Classwide Damage Models in Misleading and False Advertising Consumer Class Actions

Description

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.