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United States District Court District of Minnesota grants class certification in security software class action case based on conjoint survey

In re: Devi Khoday And Danise Townsend v. Symantec Corp. and Digital River, Inc., Civil No. 11-180 (JRT/TNL) , Class Certification Ruling March 19, 2015

Judge John R. Tunheim, United States District Judge in Minnesota US District Court, granted class certification in class action litigation brought by consumers in a class action against Symantec Corp. and Digital River, Inc. The case was about security software redownload insurance. Consumers found there were other options available that achieved the same thing, yet they cost nothing.

“…Defendants maintain that the conjoint analysis Gaskin performed is not designed to place a monetary value on a specific product attribute but rather measure user preferences for particular features and predict interest in that product. Citing In re Tobacco Cases II, No. 711400, JCCP-4042 (Super. Ct.
San Diego County, Cal. Sept. 23, 2013), Defendants contend that Gaskin’s analysis should be excluded on the grounds that “conjoint analysis has not been accepted in the relevant scientific community as a means of assigning a monetary value to any particular attribute.” (Second Gibbs Decl., Ex. 5 (In re Tobacco Cases II, JCCP-4042) at 13.)
The Court finds that Gaskin’s conjoint analysis is generally a permissible method for calculating damages. See, e.g., In re Whirlpool Corp. Front-Loading Washer Prods. Liability Litig., No. 08-WP-65000, 2014 WL 4954467, at *22-*24 (N.D. Ohio Oct. 3, 2014) (finding conjoint analysis survey as to customers’ “willingness to pay” for various product attributes to be “reasonably reliable”); TV Interactive Data Corp. v. Sony Corp., 929 F. Supp. 2d 1006, 1020-27 (N.D. Cal. 2013) (admitting conjoint analysis over defendant’s Daubert objection as to unreliability, where expert testimony used the analysis to identify a “value” for specific product attributes). Even where there is a challenge that the survey “may not perfectly represent the class[,] that does not make it irrelevant or unhelpful. Sample surveys, by their very nature, are sketches, not exact replicas, of the examined population.” Schwab v. Philip Morris USA, Inc., 449 F. Supp. 2d 992, 1170 (E.D.N.Y. 2006) (denying a motion to exclude an expert’s testimony applying a conjoint analysis), rev’d on other grounds, McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008). To the extent Defendants believe Gaskin’s analysis should have included additional factors or that it does not adequately explain the conclusions Gaskin reached, “[d]irect and cross-examination, testimony by supporting and opposing witnesses, and argument by plaintiff and defense counsel will provide the additional guidance ‘needed to justify the inferences’ the parties seek to draw from
[Gaskin]’s survey.” Id. The Court will allow Gaskin to testify to his conclusions reached by applying a conjoint analysis, and Defendants may cross-examine Gaskin to attempt to address the weaknesses they perceive in his analysis.”

Steve Gaskin of Applied Marketing Science, Inc., was the conjoint survey expert on the Ford Explorer class action case, as well as Khoday v. Symantec Corp., which was referenced above. For more information on Mr. Gaskin and Applied Marketing Science, go to

Class Action/Class Certification, Conjoint Analysis