We again post the day after a holiday, when stores are flooded with shoppers—this time exchanging gifts purchased last time. We discuss a case involving discussions of “consumer value” and “fair market value.” So, you might think we would go back to that shopping well. No. We have decided to zag. To us, the opinion on class certifications in Saavedra v. Eli Lilly & Co., No. 2:12-cv-9366-SVW (MANx) (C.D. Cal. Dec. 18, 2014), slip op., evokes another seasonal activity, playoff football. Depending on how you count the requirements, plaintiffs in a purported class action need to clear three or four hurdles to get the certification they want. Class certification tends to be a vehicle to settlement, which is what the lawyers who drive class action litigation really want, particularly in the consumer protection context. Tripping over one of the hurdles typically means the journey was a waste. In the NFL, four of the twelve playoff teams each need to win three straight games to hoist the Lombardi Trophy; the other eight each need to win four straight. Teams that lose in the Conference Championship or Super Bowl tend to view the season as a failure, not a success. The teams and players do profit from incomplete playoff runs, but we are not shaken from our view of the parallel here.
In the top division of college football, there is now a playoff of four teams. The winner will have to win two straight games. This would be on top of the conference championship game and “rivalry week” game that each had to win over the preceding weeks. (Again, three or four hurdles, depending on how you view it.) We can assume that the three teams that lose in the playoffs will not be “happy to have been here.” The four universities will have profited quite a bit from the playoffs—and the players not all (which is a different discussion entirely)—but only one will have succeeded once it is done. Still, once the playoffs start, the champion will be measured objectively: which team won two playoff games? In the past, before there was a playoff, the crowning of a champion or champions of this division of college football was a matter of subjectivity: based on the individual view of the voters of the various groups that might anoint a champion, which team had the best season? That subjectivity irked fans. Even with mounds of statistics to measure performance, the lack of the definitive measurable—the results of playoff games—was unsatisfying. (Yes, we know that the four playoff teams are selected with a large measure of subjectivity, but work with us.)
In consumer protection class actions premised on an alleged misrepresentation about a prescription drug, the plaintiffs should have to allege an objective harm and an objective way to measure it. When they cannot, they should not have a class (or probably even individual claims of the purported class representatives). Saavedra comes out of litigation over the risks of withdrawal from a prescription antidepressant. We have posted previously on summary judgment on warnings claims in personal injury cases with the same product and risk. Here and here.