Kurtz v. Costco
Wholesale Corp., — Fed.Appx. —-, 2020 WL 3480830, Nos. 17-1856-cv,
17-1858-cv (2d Cir. Jun. 26, 2020) 

This is a flushable
wipes case. The court of appeals decertifies an injunctive relief class under
NY law, but allows a damages class to proceed on a price premium theory.
There’s no likelihood of future injury here because the named plaintiff didn’t
claim that he intended to purchase additional flushable wipes. [Side note: the
doctrine that individual class representatives have to have separate Article
III standing for each type of relief sought, even if they plainly have Article
III standing to seek some other kind of relief, is a consequence of precedent protecting the police against
private litigation seeking to make them stop killing people! Like qualified immunity, it doesn’t strike
me as a very good rule.] 

Although defendants
offered objections to plaintiffs’ expert’s regression model, that went to
probative value and not admissibility; the district court didn’t abuse its
discretion in allowing the case to proceed. (Here, the expert arguably failed
to consider some significant variables, and the regression allegedly didn’t
produce a price premium if the time frame is shifted or if additional products were
included in the underlying dataset, but the expert testified that changing the
timeframe of his model while making appropriate adjustments to other variables
still yielded a price premium, and the district court found that Weir used a
sufficiently wide range of sources to render the end-result “statistically
reliable.”) 

Comcast Corp. v.
Behrend, 569 U.S. 27 (2014), held that “a model purporting to serve as evidence
of damages in [a] class action must measure only those damages attributable to
that theory.” But plaintiff’s model did that: it purported to measure the price
premium attributable to the allegedly false “flushable” label. The class action
was a perfectly good way to resolve the common question of whether the model
was any good.

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