Fisher-Price defeats class certification for damages

Court agrees with the testimony of Compass Lexecon affiliate Peter Rossi

On June 2, 2022, the US District Court for the Western District of New York ruled in favor of Compass Lexecon’s client Fisher-Price, denying class certification for damages to plaintiffs in a case involving Fisher-Price’s Rock ‘n Play Sleeper product. Plaintiffs alleged that Fisher-Price’s “false and misleading marketing of [its] dangerous product and knowing failure to disclose the grave risks of its use as a sleeper, including for overnight or prolonged sleep, allowed Defendants to reap vast profits at the expense of consumers who erroneously believed they were giving their babies a safe place to sleep.” Plaintiffs sought “price premium” and “full refund” damages for twelve statewide classes of consumers of the product. Following expert discovery, the court held a Daubert hearing, and later a class certification hearing.

Compass Lexecon affiliate, Dr. Peter E. Rossi, submitted a rebuttal report and testified at the Daubert hearing and in deposition that plaintiffs’ proposed methodologies were not capable of determining damages on a class-wide basis. Dr. Rossi testified that plaintiffs’ so-called “price premium” damages methodology, which was based on a proposed conjoint survey, did not incorporate the supply side of the market, and therefore could not be used to calculate a market price in a but-for world. Further, Dr. Rossi testified that plaintiffs’ damages methodology did not isolate the impact of the alleged false advertising on the product’s market value. The court agreed with Dr. Rossi, concluding that “common questions of fact do not predominate when the court considers the important element of causation…” leading to the ruling not to certify the 23(b)(3) class seeking damages.

Dr. Rossi was assisted by a Compass Lexecon team that included Executive Vice President Niall MacMenamin. Compass Lexecon worked closely with counsel from Goodwin Procter including Matt Kanny, and Adrianne Marshack (now Orange County Superior Court judge), who successfully represented Fisher-Price.