Analysis Group Experts Examine Damages Models in Hilsley v. Ocean Spray for FDLI’s Top Food and Drug Cases
June 26, 2019
Analysis Group Managing Principal Rebecca Kirk Fair and Vice President Rene Befurt have written an article on Hilsley v. Ocean Spray Cranberries, Inc. for this year’s edition of the Food and Drug Law Institute (FDLI) publication Top Food and Drug Cases. Ms. Kirk Fair and Dr. Befurt describe Hilsley as part of a larger trend of class actions involving plaintiffs alleging deception by food and beverage companies. In this case, the plaintiff contended that Ocean Spray’s claims of no artificial flavors in its beverages were misleading, and resulted in consumers paying more for at-issue products than they would have but for the allegedly deceitful marketing claims. Hilsley is noteworthy, according to the authors, because the partial class certification granted in the case reflects plaintiffs’ growing success with cases of this kind, most of which survive dismissal motions filed by defendants.
In examining the court’s decision in Hilsey, Ms. Kirk Fair and Dr. Befurt point out that experts need to demonstrate that their damages models are consistent with the plaintiff’s damages theories and capable of calculating class-wide damages. In light of this objective, damages models – including the empirical studies on which they may rely – must be sufficiently detailed and adequately address relevant theory, best practices, and specific context. Ms. Kirk Fair and Dr. Befurt also note that survey methodology can be a crucial element of success in such matters, and that recent developments including the integration of demand-side and supply-side factors may be needed to stand up to judicial scrutiny.