In re Dial Complete Marketing & Sales Practices Litigation

2017 DNH 051, 320 F.R.D. 326, 2017 WL 1155736, 2017 U.S. Dist. LEXIS 44383
CourtDistrict Court, D. New Hampshire
DecidedMarch 27, 2017
DocketMDL Case No. 11-md-2263-SM
StatusPublished
Cited by11 cases

This text of 2017 DNH 051 (In re Dial Complete Marketing & Sales Practices Litigation) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dial Complete Marketing & Sales Practices Litigation, 2017 DNH 051, 320 F.R.D. 326, 2017 WL 1155736, 2017 U.S. Dist. LEXIS 44383 (D.N.H. 2017).

Opinion

[327]*327ORDER

Steven J. McAuliffe, United States District Judge

This consolidated, multi-district class action litigation is brought by consumers in Arkansas, California, Florida, Illinois, Missouri, Ohio, and Wisconsin, on behalf of themselves and similarly situated consumers in those states, against defendant, The Dial Corporation (“Dial”). Plaintiffs allege that Dial continually misrepresented the antibacterial properties of its “Dial Complete” branded soap, and advance claims under their respective state consumer protection and unfair trade practices statutes, as well as statutory and common law causes of action for breach of warranty and unjust enrichment.

On November 16, 2012, pursuant to Fed. R. of Civ. P. 23(b)(3), plaintiffs moved to certify a class consisting of each state’s purported class members, for a total of eight subclasses, defined as: “All persons residing in [the state] who purchased Dial Complete Antibacterial Foaming Hand Soap for household use at any point in time from Dial Complete’s commercial launch in 2001 through the present.”

The court ruled on plaintiffs’ motion on December 8, 2015, finding that several of the claims asserted by the plaintiffs were incapable of elasswide proof (including [328]*328all the Wisconsin claims). For those claims remaining, the court found that plaintiffs failed to provide detail sufficient to permit a full assessment of whether damages could be adequately calculated on a classwide basis. Accordingly, the court denied plaintiffs’ motion for certification, but allowed plaintiffs leave to file an amended motion for class certification to address deficiencies identified in the order.1

On June 24, 2016, plaintiffs filed an amended motion for class certification. Dial again objects. On November 16, 2016, the court held a hearing on the motion, and heard testimony from the parties’ experts.

BACKGROUND

The parties’ familiarity with the relevant facts as set out in the court’s December 2016 order is assumed. A brief synopsis follows.

The plaintiffs take issue with a variety of statements appearing on Dial Complete’s product labels, including claims that Dial Complete “Kills 99.99% of Germs*,”2 that it is “# 1 Doctor Recommended**,” and that Dial Complete “Kills more germs than any other liquid hand soap."3 Plaintiffs contend that these statements are false and misleading. They generally assert four causes of action: (1) violation of the consumer protection laws of Arkansas, California, Florida, Illinois, Missouri, Ohio, and Wisconsin; (2) breach of express warranty; (3) breach of implied warranty; and (4) unjust enrichment. Plaintiffs’ original motion sought certification for each of those claims pursuant to Fed. R. Civ. P. 23.

As referenced above, the court’s December 2015 order substantially limited the claims at issue. For the claims remaining, the court determined that plaintiffs had not demonstrated that damages could be calculated on a class-wide basis, and therefore had not shown that common questions predominate over individual questions with respect to damages.

Plaintiffs’ amended motion for class certification again asserts that class-wide damages can be reliably calculated in a manner that comports with their theories of liability. See Document No. 200. The amended motion is supported by the declaration and hearing testimony of a new expert, Stefan Boedeker.

Mr. Boedeker is a Managing Director of the Berkeley Research Group, where he focuses “on the application of economic, statistical, and financial models to a variety of areas such as solutions to business issues, complex litigation cases, and economic impact studies.” Pis.’ Mem. in Supp. of Am. Mot. for Class Certification (hereinafter “Pis.’ Br.”), Exhibit A (Declaration of Stefan Boedeker (hereinafter “Boedeker Decl.”)), Appendix A-1 at p. 1. Boedeker received Bachelor of Science degrees in Statistics and Business Administration from the University of Dortmund, Germany, a Master of Science degree [329]*329in Statistics from the University of Dortmund, and a Master of Arts degree in Economics from the University of California, San Diego.4 He has worked in the economic and statistical consulting field since he completed graduate school in 1991, and “has extensive experience applying economic and statistical theories and methodologies to a wide variety of cases where [b]ut-for-scenarios have to be developed based on probabilistic methods and where statistical predictive modeling has to be applied to assess liability and damages.” Id.

According to plaintiffs, Boedeker was retained:

to determine whether any specific economic techniques could determine whether Plaintiffs and the other Class Members had been deprived of a measurable monetary portion of the benefit-of-the-bargain they had struck with Dial by buying Dial Complete with a superior efficacy claim on the label but, in fact, receiving a product that did not provide the promised superior efficacy.

Pis.’ Br. at 2. Plaintiffs say that Boedeker completed the task by describing “a well-developed and widely-accepted conjoint analysis methodology,” and then executing that methodology to calculate the aggregate damages caused by Dial Complete’s challenged “Kills 99.99% of Germs” claim. Id.

As plaintiffs explain it, Boedeker’s conjoint analysis methodology consists of three steps: data collection, data analysis, and damages calculation. Pis.’ Br. at 3. Boedeker first conducted preliminary background research, reviewed market research data, and conducted field research in online and retail stores, to gain an understanding of the consumer liquid hand soap market. Based on that research, Boedeker designed an “economic loss model” to quantify damages on a elasswide basis, focusing on measuring the marginal consumer’s “willingness-to-pay.” Id. at 5-6. Boedeker describes that model as follows:

To make the consumers whole for the economic loss, every consumer would have to receive an additional payment sufficiently large to vertically shift the demand curve so that the demand curve for the product with the false claim plus additional compensation intersected with the supply curve in equilibrium for the product -without the false claim.
In order to determine how much the demand curve would need to be shifted, we need to focus on the marginal consumer in the market for the product without the false claim and compare the price she had paid to the price she would have paid for the product with the known-to-be-false claim at the point of purchase.
The compensation to make the marginal consumer whole after purchasing the product with the false claim is not simply the difference between the equilibrium prices on the demand curve for the product without the false claim and the demand curve for the product with the known-to-be-false claim ... Rather, the compensation of the marginal consumer needs to be equal to the difference between the price this marginal consumer would have paid for the product with the known-to-be false claim and the product without the false claim.

Boedeker Decl. ¶¶ 44-46.

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Bluebook (online)
2017 DNH 051, 320 F.R.D. 326, 2017 WL 1155736, 2017 U.S. Dist. LEXIS 44383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dial-complete-marketing-sales-practices-litigation-nhd-2017.