320 F.R.D. 326
D.N.H.2017Background
- Multi-state consumer class action (Ark., Calif., Fla., Ill., Mo., Ohio, Wis.) alleging Dial misrepresented antibacterial claims on "Dial Complete" hand soap and asserting consumer-protection, warranty, and unjust-enrichment claims. Plaintiffs seek certification of state subclasses for purchases from 2001 to present.
- After a 2015 order narrowing claims and denying certification for failure to show classwide damages, plaintiffs filed an amended class-certification motion supported by economist Stefan Boedeker and a Choice-Based Conjoint survey/market-simulation damages model.
- Boedeker surveyed 2,000 respondents, modeled willingness-to-pay for attributes (including “Kills 99.99% of Germs”), ran mixed-logit / Bayesian estimations and market simulations, and derived a median premium (10.89%) to apply to Dial’s sales for aggregate damages.
- Dial moved to exclude Boedeker under Daubert, and separately argued the model cannot isolate damages attributable to the challenged label claims (Comcast predominance requirement). Dial’s experts criticized the survey sample, attribute selection, and lack of explicit supply-side modeling.
- The court denied Dial’s Daubert motion (finding Boedeker qualified and methodology sufficiently reliable; criticisms go to weight), and held Boedeker’s conjoint + simulation approach can reliably calculate a classwide price premium tethered to an actual market and consistent with plaintiffs’ theory of liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert (Daubert/FRE 702) | Boedeker is a qualified economist; conjoint is accepted; methodology reliable enough for court consideration | Boedeker’s methods and informal preliminary research are flawed and unreliable; should be excluded | Denied. Boedeker qualified; methodological flaws go to weight, not admissibility |
| Whether conjoint analysis can measure classwide damages consistent with Comcast | Conjoint + market simulation measures marginal consumer WTP and converts it into a market price premium applicable to total sales, isolating damages tied to the misrepresentation | Conjoint measures only demand/WTP and ignores supply; without supply-side analysis it cannot yield the market price that would have prevailed absent the claim | Granted. Court finds model can reliably isolate the price premium and satisfy Comcast when tethered to an actual, functioning market |
| Adequacy of methodology (survey design, sample, attributes) | Survey targeted soap purchasers, included a no-buy option to identify marginal consumers, and used accepted econometric techniques to estimate WTP | Sample not limited to affected states; limited attributes (omitted brand, scent) and some informal data-gathering undermine reliability | Court: flaws noted but curable and affect weight; do not preclude certification at this stage |
| Predominance under Rule 23(b)(3) (classwide damages) | Boedeker’s model translates marginal WTP into a percent premium applied to sales to compute aggregate damages, enabling predominance | Model fails to prove damages are measurable across class because it does not model supply and market equilibrium absent the claim | Court: Predominance satisfied. Model sufficiently ties damages to plaintiffs’ theory and can be applied classwide |
Key Cases Cited
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (gatekeeping standard for expert testimony)
- Comcast Corp. v. Behrend, 569 U.S. 27 (class certification requires damages model tied to liability theory)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (rigorous Rule 23 analysis; plaintiff must demonstrate compliance)
- Milward v. Acuity Specialty Prod. Grp., Inc., 639 F.3d 11 (1st Cir.) (Daubert admissibility / methodological reliability discussion)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (expert gatekeeping applies to all expert testimony)
- In re NJOY, Inc. Consumer Class Action Litig., 120 F. Supp. 3d 1050 (C.D. Cal.) (discussion of conjoint analysis admissibility and limitations)
- In re ConAgra Foods, Inc., 90 F. Supp. 3d 919 (C.D. Cal.) (conjoint admissibility and class damages methodology discussion)