Takeaway: Following the U.S. Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), class action defendants frequently have argued damages cannot be established on a class-wide basis. Conversely, attorneys representing class action plaintiffs have endeavored to develop class-wide damages models that satisfy Comcast. A district court in a multidistrict, consumer fraud class action recently rejected a defendant’s motion to exclude expert testimony, potentially giving class plaintiffs a road map for developing expert testimony that calculates class-wide damages in a partial refund or reimbursement case with sufficient reliability. See

In re: Dial Complete Marketing and Sales Practices Litigation, MDL Case No. 11-md-2263-SM, 2017 DNH 051 (D.N.H. Mar. 27, 2017).

In a prior post on this blog, Jay Bogan analyzed two Ninth Circuit decisions rejecting class certification of claims seeking damages under a partial refund or reimbursement damages theory. In both cases, the Ninth Circuit determined that damages could not be measured on a class-wide basis, and thus ruled the predominance requirement had not been met.

On March 27, 2017, the District of New Hampshire analyzed this same issue in Dial Complete Marketing, a consolidated, multidistrict class action brought by consumers in Arkansas, California, Florida, Illinois, Missouri, Ohio and Wisconsin. Plaintiffs alleged that Dial misrepresented the antibacterial properties of its “Dial Complete” branded soap, asserting various state consumer protection and unfair trade practice claims, as well as claims for breach of warranty and unjust enrichment. Among other claims, Plaintiffs disputed statements on the soap labels that Dial Complete “kills 99.99% of germs,” is “#1 Doctor Recommended,” and “kills more germs than any other liquid hand soap.”

Plaintiffs sought damages under the theory consumers had been “deprived of a measurable monetary portion of the benefit of the bargain they had struck with Dial by buying Dial Complete with a superior efficacy claim on the label but, in fact, receiving a product that did not provide the promised superior efficacy.” In support of this theory, Plaintiffs’ expert submitted a so-called “conjoint analysis methodology” relying upon, among other things, a consumer survey that “collected data from 2,000 qualifying respondents.”

Dial challenged the reliability of this model in a number of respects, including attacking its failure to adequately take into account and properly weigh other non-price attributes that may well have been important to liquid hand soap consumers (such as brand name, scent, shape, or color). Relying on Comcast, Dial argued the model was “incapable of measuring only those damages attributable to plaintiffs’ theory of liability.”

In denying Dial’s motion to exclude the expert testimony, the district court stated “there is an important difference between what is unreliable support and what a trier of fact may conclude is insufficient support for an expert’s conclusion.” The court found that the challenges identified by Dial either could be cured or went to the weight, rather than the admissibility, of the expert testimony. Having found that Plaintiffs’ damages model satisfied the reliability criteria of Comcast, the district court granted certification of eight state-specific subclasses.