Monday, July 06, 2020

flushable wipes injunctive relief class must go, damages class can stay

Kurtz v. Costco Wholesale Corp., --- Fed.Appx. ----, 2020 WL 3480830, Nos. 17-1856-cv, 17-1858-cv (2d Cir. Jun. 26, 2020) 

This is a flushable wipes case. The court of appeals decertifies an injunctive relief class under NY law, but allows a damages class to proceed on a price premium theory. There’s no likelihood of future injury here because the named plaintiff didn’t claim that he intended to purchase additional flushable wipes. [Side note: the doctrine that individual class representatives have to have separate Article III standing for each type of relief sought, even if they plainly have Article III standing to seek some other kind of relief, is a consequence of precedent protecting the police against private litigation seeking to make them stop killing people! Like qualified immunity, it doesn’t strike me as a very good rule.] 

Although defendants offered objections to plaintiffs’ expert’s regression model, that went to probative value and not admissibility; the district court didn’t abuse its discretion in allowing the case to proceed. (Here, the expert arguably failed to consider some significant variables, and the regression allegedly didn’t produce a price premium if the time frame is shifted or if additional products were included in the underlying dataset, but the expert testified that changing the timeframe of his model while making appropriate adjustments to other variables still yielded a price premium, and the district court found that Weir used a sufficiently wide range of sources to render the end-result “statistically reliable.”) 

Comcast Corp. v. Behrend, 569 U.S. 27 (2014), held that “a model purporting to serve as evidence of damages in [a] class action must measure only those damages attributable to that theory.” But plaintiff’s model did that: it purported to measure the price premium attributable to the allegedly false “flushable” label. The class action was a perfectly good way to resolve the common question of whether the model was any good.

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