Class certification was denied in this false advertising matter.
Retained by Benesch, Friedlander, Copland & Aronoff
The plaintiffs, a group of orthodontists and dentists, alleged that SmileDirectClub made false statements about its aligners, which led consumers to purchase SmileDirectClub aligners instead of seeking treatment from providers of traditional orthodontic services.
The judge cited Professor Berger several times in her opinion.
Defense counsel retained Cornerstone Research to support Jonah Berger and Lorin Hitt, both of the Wharton School at the University of Pennsylvania, as expert witnesses. Professor Berger rebutted a survey conducted by plaintiffs’ expert and analyzed marketing data to demonstrate the need for individualized inquiry. Professor Hitt rebutted plaintiffs’ damages expert and demonstrated that plaintiffs’ experts had not provided a common method for identifying proposed class members or for estimating damages to individual members of the putative class.
The U.S. District Court for the Middle District of Tennessee denied class certification in this case, finding the plaintiffs had not provided a common methodology that could be used to measure damages for members of the proposed class. The judge cited Professor Berger several times in her opinion, noting that Professor Berger “convincingly argues” that the survey conducted by plaintiffs’ expert unrealistically focused respondents on the at-issue marketing. The opinion also closely followed Professor Hitt’s conclusions and specifically stated that plaintiffs’ damages relied on “his supposed ability to determine the average injury to class members,” but did not provide “a model that would allocate injury or damages with sufficient accuracy to permit classwide resolution.”