The Ninth Circuit Declares That Individualized Damages Issues Alone Never, Ever Preclude Certification Of A Rule 23(B)(3) Class

In Pulaski & Middleman, LLC v. Google, Inc., No. 12-16752, 2015 U.S. App. LEXIS 16723 (9th Cir. Sept. 21, 2015), a Ninth Circuit panel held that individualized damages (or restitution) calculations cannot alone defeat Rule 23(b)(3)'s predominance element. The opinion is significant because the district court below had determined that an exceedingly high degree of individualized proof would be needed to calculate each putative class member's restitution award and plaintiffs had failed to propose a "workable method" to reduce this complexity. Notably, the panel also defined the measure of restitution in false advertising cases brought under California's Unfair Competition Law (UCL) and False Advertising Law (FAL) in a manner that plaintiffs will likely argue expands the remedy.

In Pulaski, plaintiffs, internet advertisers who purchased Google's ad-placement service known as AdWords, alleged that Google falsely touted AdWords, causing plaintiffs to unwittingly pay for advertising placed on less valuable "parked domain and/or error page websites." Plaintiffs alleged they would not have paid for this advertising (or not paid as much) had they known the truth. They moved to certify a purchaser class under...