Class certification is a do or die moment for class action plaintiffs. Currently, a hotly contested issue at class certification is whether or not a plaintiff can propose a damages model that is common to the putative class.

In 2013, the U.S. Supreme Court held in Comcast v. Behrend that at the class certification stage, plaintiffs must present a damages model that is consistent with their liability case, and that courts “must conduct a rigorous analysis to determine whether that is so.”

Following Comcast, class action defendants have seized every opportunity to attack plaintiff’s damages models to avoid class certification. In the context of the full refund model specifically, the amount of evidence required to satisfy plaintiff’s burden is unsettled.

Under this theory, plaintiffs claim that the consumer product has no value, and therefore, each consumer is entitled to receive a full refund of the product’s purchase price. However, when the defendant is a manufacturer of a consumer product, its wholesale sales to retailers do not reflect the price consumers pay and manufacturers don’t typically have or keep records of retail sales. Without further direction from the higher courts, two California federal district judges are having difficulty applying this standard. . . in the same case.

In June 2014, Judge Collins of the Central District of California granted plaintiffs’ motion for class certification in granted plaintiffs’ motion for class certification in Ortega v. Natural Balance, Inc. Here, plaintiffs presented their full refund model and argued that the class damages could be calculated using defendant’s wholesale sales data and the average retail price. The court held that this was a workable class-wide method for calculating monetary relief, but did not go into the details on the evidence presented to support the damages model.

A little more than six months later in the same case (which is now before Judge André Birotte Jr., and titled Lambert v. Nutraceutical Corp., due to some shifting of the parties), the court granted defendant’s motion to decertify the class on the ground that plaintiffs had not presented sufficient evidence of the average retail price to calculate an appropriate class full refund model.

Decertifying the class, Judge Birotte Jr. held that the defendant’s wholesale data does not reflect what class members paid for the product and that the average retail price was essential to the calculation. Because of the discrepancy in retail pricing, wholesale data cannot be used as a substitute for retail data. Since discovery was already closed and plaintiff had not presented any evidence of the average retail price, the court held that there was insufficient evidence to calculate a full refund damages model and that the class must be decertified.

While both Judge Collins and Judge Birotte Jr. agree that a full refund model for manufacturers requires both wholesale data and average retail price, it is unclear what evidence will be sufficient to establish the average retail price. Although this issue will be developed through further litigation, consumer product defendants should take note of the split of authority and that the failure to provide evidence of the average retail price could be grounds for denying class certification.