Extending its recent decision in Lytle v. Nutramax Laboratories, Inc., 114 F.4th 1011, 1032 (9th Cir. 2024), the Ninth Circuit recently affirmed class certification in a false advertising case based in part on an unexecuted and “not yet fully developed” damages model. The panel reasoned that the expert’s explanation of the damages model he proposed to (but had not yet) run established that the model “could reliably measure damages on a classwide basis and adequately for present purposes matched [plaintiff’s] theory of harm.” The panel also confirmed that in some cases, false advertising plaintiffs can benefit from an inference of classwide materiality and reliance under California law.
In Noohi v. Johnson & Johnson Consumer Inc., No. 23-55190 (9th Cir. July 25, 2025), the plaintiff alleged that defendant’s “Oil-Free Face Moisturizer for Sensitive Skin” in fact contained two oil-based compounds, and that she paid a “price premium” for the product on account of the alleged misrepresentation in violation of California’s False Advertising Law, Unfair Competition Law, and Consumer Legal Remedies Act. Plaintiff’s expert proposed a method for estimating two types of class-wide damages: (i) the amount of overpayment based on the economic value of the “oil-free” statement on the product’s label, and (ii) “soft damages,” such as a decline in a consumer’s satisfaction, brand loyalty, willingness to recommend the product, and repurchase intent, which (as the panel recognized) would inflate damages beyond the price premium. The district court certified a class while discovery was ongoing. On appeal, defendant argued that (1) the expert’s proposed survey design was incomplete, rendering its results susceptible to bias; and (2) the plaintiff failed to establish class-wide reliance upon the alleged mislabeling because different consumers attached different meanings to the term “oil-free.” The Ninth Circuit rejected both arguments.
First, the Ninth Circuit held that the district court did not abuse its discretion in finding that the expert’s proposed model could reliably measure damages and adequately matched plaintiff’s theory of harm, even though the expert had not yet formulated his precise survey questions, let alone executed the survey. Relying on its recent decision in Lytle, the panel observed that at the class certification stage, an expert’s unexecuted model need only satisfy a limited (not full-blown) Daubert analysis to be deemed sufficiently reliable. Because the expert was qualified in econometrics, had designed the survey methodology, identified target respondent populations, and explained how he would measure class-wide damages, the panel found his proposed methodology sufficiently likely to provide common answers at trial. The court acknowledged that problems could emerge later with the expert’s approach, such as “poorly worded questions” that “induce bias” and “survey conditions [that] might not accurately replicate the conditions faced by consumers in stores.” But the panel observed that the expert acknowledged those risks during his deposition and that the defendant could raise such issues later via summary judgment, a renewed Daubert motion, or cross-examination at trial.
Second, the Ninth Circuit also held that the district court properly concluded that the materiality and reliance elements of plaintiffs’ claims were subject to common proof. The panel observed that, given the “objective standard for materiality” and the “undisputed evidence of classwide exposure” to the challenged oil-free representation, plaintiff was “entitled to the inference that reliance can be shown via common proof.” The panel first observed that defendant offered no empirical evidence to support its argument that class members understood “oil-free” to mean different things. And even if defendant had presented such evidence, the panel reasoned that would not undercut the finding of classwide materiality (and thus the inference of reliance) because it would show only that the “oil-free” claim was material to class members for different reasons, not that the statement was entirely immaterial to some class members.
Defendants looking for a silver lining in this case should heed the Ninth Circuit’s identification of potential issues that could undermine a plaintiff’s case for certification. In false advertising cases, this certainly includes developing robust evidence that the challenged representation is not material to at least some class members, which if successful could rebut the inference of reliance on which many plaintiffs rely. Moreover, as the Ninth Circuit recognized, if plaintiffs fail to make good on their promises of a properly executed and supported damages model, the defendant may be entitled to summary judgment – not just against the named plaintiffs, but against the whole class. Alternatively, a certified class can always be decertified later if the record fails to support the original certification decision; the strict standard for reconsideration motions does not apply to class certification orders.