Ninth Circuit Appeals Court Leaves in Place Denial of Class Certification in False Advertising Case Featuring Testimony by Three Analysis Group Experts

December 16, 2021

Analysis Group was retained on behalf of Comcast, the defendant in an unfair competition and false advertising class action lawsuit. The plaintiffs, two Comcast cable television subscribers in California, alleged that Comcast misled its customers by advertising its cable service at one price but charging a higher price by adding two fees for service that the plaintiffs alleged should have been included in the base price. The plaintiffs sought to certify a class consisting of all California consumers who purchased residential cable television services from Comcast for a defined class period.

Analysis Group teams led by Managing Principal Rebecca Kirk Fair and Vice Presidents Rene Befurt, Kris Comeaux, and Tracy Offner supported three experts, all of whom filed expert reports and testified at deposition.

  • Academic affiliate John Hauser conducted a consumer survey to assess the extent to which the fee disclosures in Comcast’s advertisements affected consumer behavior. He also evaluated the plaintiffs’ experts’ proposed reliance on a survey to quantify a price premium resulting from the challenged conduct.
  • Analysis Group Managing Principal Bruce Deal evaluated the plaintiffs’ experts’ method for estimating damages on a class-wide basis, and whether this method would provide an appropriate measure of damages. He addressed issues of commonality across the proposed class and of the typicality of the named plaintiffs.
  • Managing Principal Divya Mathur evaluated the industry and competitive environment. She examined the importance of supply-side economics in assessing the plaintiffs’ allegations and assessed the economics of the plaintiffs’ proposed “price premium” methodology.

A judge in the US District Court for the Northern District of California denied certification of the class, holding that “given how broadly the plaintiffs have defined their proposed class … there is too much variation among putative class members in terms of what representations were made and whether those representations were deceptive.” The US Court of Appeals for the Ninth Circuit denied the plaintiffs’ request to take an immediate appeal of the order denying class certification.