Further Ninth Circuit Clarification on Comcast and Restitution Under California Law

Since Comcast v. Behrend, 133 S. Ct. 1426 (2013), was handed down, district courts in the Ninth Circuit have grappled with whether certification under Rule 23(b)(3) requires that damages be susceptible to classwide calculation, with some saying yes and others no. The Ninth Circuit handed down rulings in 2013 and 2014 saying that even post-Comcast it remains permissible under Rule 23(b)(3) for damages calculations to be individualized. See Leyva v. Medline Indus., 716 F.3d 510, 513-14 (9th Cir. 2013); Jimenez v. Allstate Ins., 765 F.3d 1161, 1167 (9th Cir. 2014). Both of these decisions rely on the pre-Comcast Ninth Circuit ruling in in Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087 (9th Cir.2010).

Despite this series of clarifying rulings, courts in the Ninth Circuit have continued to hold that Comcast requires a classwide damages model. E.g., In re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 1021 (C.D. Cal. 2015) (“Rule 23(b)(3) is satisfied only if plaintiffs can show that damages are capable of measurement on a classwide basis.”); McVicar v. Goodman Glob., No. 13-cv-1223, 2015 WL 4945730, at *14 (C.D. Cal. Aug. 20, 2015) (“At the class certification stage, Plaintiffs must present a theory that can measure, on a class-wide basis, damages attributable to Plaintiffs’ theory of liability.”).

It will be interesting to see if the Ninth Circuit’s latest reaffirmation of this point will lead to new results. In Pulaski & Middleman, LLC v. Google, Inc., the Ninth Circuit reiterated once again that Yokoyama remains good law post-Comcast: “Yokoyama remains the law of this court, even after Comcast … [D]amages calculations alone … cannot defeat certification.” 802 F.3d 979, 988 (9th Cir. 2015).

The Pulaski court also issued clarification on calculating restitution under California law, noting that fraudulent omission cases:

Where plaintiffs are “deceived by misrepresentations into making a purchase, the economic harm is the same: the consumer has purchased a product that he or she paid more for than he or she otherwise might have been willing to pay if the product had been labeled accurately.”  Kwikset, 51 Cal.4th at 329.  … Applying these concepts to other forms of fraudulent omission, UCL and FAL restitution is based on what a purchaser would have paid at the time of purchase had the purchaser received all the information. … In calculating damages, here restitution, California law “requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation.” Marsu, B.V. v. Walt Disney Co., 185 F.3d 932, 938–39 (9th Cir.1999). “[T]he fact that the amount of damage may not be susceptible of exact proof or may be uncertain, contingent or difficult of ascertainment does not bar recovery.” Id. at 939.

Pulaski, 802 F.3d at 989.