Proposed damages model using AMS conjoint analysis survey helps grant class certification

A manufacturer and distributor of over-the-counter medications was sued by a class of consumers alleging to be misled by the use of a particular label in product marketing and packaging. Expert Steven Gaskin, assisted by Applied Marketing Science, Inc. (AMS), designed and proposed a conjoint analysis survey to determine the impact and price premium attributed to the label in order to assess class-wide damages. Despite Defendants’ argument that Gaskin’s proposed conjoint survey did not account for supply-side factors, a judge in California’s U.S. District Court disagreed stating that the proposed damages model “employs actual prices and quantities of past sales (based on actual sales data), which inherently reflect both demand and supply factors … Courts routinely hold that conjoint analyses that employ actual sales data reflecting prices and quantities of items actually sold in the past adequately account for supply-side factors.” The judge granted class certification in part due to this proposed conjoint design.