For Want of a Damages Model, Certification Was Lost

Carlton Fields

Khasin v. R. C. Bigelow, Inc., No. 12-CV-02204-WHO, 2016 WL 1213767 (N.D. Cal. Mar. 29, 2016), provides a recent example of a class-certification denial premised on the “damages model” rule expressed in Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1433 (2013). As the Northern District of California expressed it: “To satisfy Rule 23(b)(3)’s predominance requirement, a plaintiff must demonstrate that ‘damages are capable of measurement on a classwide basis….’ At class certification, plaintiff must present a likely method for determining class damages, though it is not necessary to show that his method will work with certainty at this time.”

The putative class at issue sought to hold R. C. Bigelow, a purveyor of tea products, responsible for the purported mislabeling of the health benefits of a wide range of its green tea offerings. In support of class certification, the representative plaintiff provided three “damages models”:  (1) a restitution calculation; (2) statutory damages; and (3) nominal damages. The court held that all were meritless.

First, regarding restitution, the plaintiff took the position – against applicable precedent – that the value of all of these green tea products was zero due to alleged “false advertising.”  The court responded that this argument was “too implausible to accept” because these products could be purchased on any number of grounds, and the plaintiff was required to “present a damages model that can likely determine the price premium attributable only to Bigelow’s use of the allegedly misleading” labeling (emphasis supplied). The plaintiff’s restitution model failed to do so despite prior warnings.

Second, while statutory damages were available under California law in appropriate circumstances regarding such mislabeling claims, the plaintiff “failed to provide a viable theory for calculating damages under the [California Legal Remedies Act] that would be tied to his theory of liability.”

Third, the plaintiff “also [sought] nominal damages, but [failed to cite] … a single case demonstrating that nominal damages are available under his causes of action.”

On these grounds regarding the lack of a viable damages model – and additional non-damages grounds – the court denied class certification.

Khasin v. R. C. Bigelow, Inc., No. 12-CV-02204-WHO, 2016 WL 1213767 (N.D. Cal. Mar. 29, 2016).

Written by:

Carlton Fields

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