In re: Dial Complete Marketing MDL Case No. 11-md-2263-SM and Sales Practices Litigation ALL CASES Opinion No. 2017 DNH 051 dated March 27, 2017
Judge Steven J. McAuliffe, United States District Judge in New Hampshire District Court, granted class certification in class action litigation brought by consumers in Arkansas, California, Florida, Illinois, Missouri, Ohio, and Wisconsin against The Dial Corporation (“Dial”).
Plaintiffs allege that Dial continually misrepresented the antibacterial properties of its “Dial Complete” branded soap. They hired a conjoint analysis expert to 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.
The survey expert for Plaintiffs developed a “Choice Based Conjoint” consumer survey, in which survey participants were shown hand soap profiles (or “choice sets”) with five different attributes, including the claims: “Kills 99.99% of Germs,” “antibacterial,” “foaming,” and “moisturizing.” The fifth attribute was price. The price attribute was at levels ranging from $0.99 to $3.99 to reflect prices observed in the market in preliminary research.
In his ruling, Judge McAuliffe referenced past successful uses of conjoint analysis in this context. “Conjoint analysis is a statistical technique capable of using survey data to determine how consumers value a product's individual attributes — often called the market's willingness to pay.” Saavedra v. Eli Lilly & Co., No. 12–CV–9366–SVW, 2014 WL 7338930, *4 (C.D. Cal. Dec. 18, 2014). Courts have recognized that conjoint analysis can effectively determine the value customers ascribe to a particular product attribute by measuring the “part worth” of that attribute. See, e.g., Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 538–39 (S.D. Fla. 2015) (“To the extent that Defendant contends that conjoint analysis, an analytic survey method used to measure customer preferences for specific features of products, is an improper damages theory post-Comcast, the Court rejects that position as unfounded.”); see also Khoday v. Symantec Corp., 93 F. Supp. 3d 1067, 1082 (D. Minn. 2015), as amended (Apr. 15, 2015) (“conjoint analysis is generally a permissible method for calculating damages.”) (collecting cases); Guido v. L’Oreal, USA, Inc., No. 11-cv-1067, 2014 WL 6603730, at *11 (C.D. Cal. July 24, 2014) (finding that proposed conjoint analysis damages theory could be applied on a classwide basis under Comcast, and was consistent with plaintiff’s theory of liability).
At the end of his ruling, the judge concluded that “Because plaintiffs’ damages calculation appears capable of reliably isolating the pertinent price premium and establishing the full extent of damages on a class-wide basis, in a manner consistent with plaintiffs’ theories of liability, the model satisfies the demands of Comcast and Rule 23.”
Steve Gaskin of Applied Marketing Science, Inc., was the conjoint survey expert on two of the cases referred to above, Sanchez-Knutson v. Ford Motor Co. and Khoday v. Symantec Corp. For more information on Mr. Gaskin and Applied Marketing Science, go to www.ams-litigation.com.