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Classwide Damages Models in Misleading and False Advertising Consumer Class Actions

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, August 25, 2022

Recorded event now available

or call 1-800-926-7926

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


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

Lowe, Rachel
Rachel Lowe

Alston & Bird

Ms. Lowe helps companies focus on their business needs by quickly ending disputes through securing summary judgment,...  |  Read More

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