Classwide Damages Models in Misleading and False Advertising Consumer Class Actions

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

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Conducted on Thursday, May 27, 2021

Recorded event now available

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Course Materials

This CLE course will discuss the types of classwide damages 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' damages calculations and defense experts to attack the damages models.


In Comcast Corp. v. Behrend, the U.S. Supreme Court held that a damages model that fails to measure damages according to the actual theory of liability was precluded. Later, in Tyson Foods Inc. v. Bouaphakeo, the Supreme Court noted that 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 damages models typically arise at the certification stage. Counsel for both plaintiffs and defendants need to understand these damages models and how to use expert witnesses to testify about the plaintiffs' damages calculations and how to attack the plaintiffs' damages 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 damages models and explain the effective use of expert witnesses to prove or attack the plaintiffs' damages model.



  1. Overview of damages post-Comcast and Tyson
  2. Types of damages models and use of expert witnesses; topics may include:
    1. Full refund model
    2. Price premium model
    3. The 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 damages 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


Carroll, Katrina
Katrina Carroll

Founding Partner
Carlson Lynch

Ms. Carroll serves as Co-Chair of the Firm’s Executive Management Committee. She has been recognized as one of...  |  Read More

Herrington, Robert
Robert J. Herrington

Co-Chair, Class Action Litigation Group
Greenberg Traurig

Mr. Herrington's practice focuses on complex commercial litigation, including class actions in the areas of false...  |  Read More

Jagher, Jonathan
Jonathan M. Jagher

Freed Kanner London & Millen

Mr. Jagher has a national practice representing plaintiffs in antitrust class actions since 2007.

 |  Read More

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