Analysis Group Managing Principal Rebecca Kirk Fair Examines Damages Model Considerations from Recent False Advertising Class Certification Rulings

May 31, 2018

The Food and Drug Law Institute (FDLI) has published a new edition of its annual compilation of top legal and enforcement matters, Top Food and Drug Cases, 2017, & Cases to Watch, 2018. Analysis Group Managing Principal Rebecca Kirk Fair and August T. Horvath of Foley Hoag coauthored a section examining recent district court rulings in consumer class actions related to false advertising allegations. Focusing on Singleton v. Fifth Generation, Inc., a dispute over the marketing of Tito's Handmade Vodka, Ms. Kirk Fair and Mr. Horvath review the court's consideration during the class certification stage of whether the plaintiff's proposed approach to calculating damages satisfies the post-Comcast Federal Rule of Civil Procedure 23(b)(3) predominance requirement.

In Singleton, the plaintiff ultimately failed to clear the Rule 23(b)(3) hurdle despite proposing a combination of survey methodologies for estimating damages. The authors explain that court's opinion suggests a failure in implementation, rather than the potential relevance of the underlying methodologies. The authors also reference certain similar recent false advertising class actions across the food, beverage, and other industries where these methodologies have been admitted. The authors conclude that the broader implications of these rulings suggest that any successful use of survey methodologies to estimate damages on a class-wide basis will depend on careful planning and attention to detail, thoroughly addressing difficult issues and unique circumstances, and thoughtful integration of multiple survey methodologies (when proposing to use more than one).

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