Weil, Gotshal & Manges LLP
Q4 2020
The Shortcomings of Conjoint Analyses
in Measuring Fair Market Value
By David Singh, Pravin Patel, and Eric Rivas*
Plaintiffs in false advertising class actions often seek to recover the purported
“price premium” members of the proposed class allegedly paid as a result of
alleged misrepresentations or omissions. To isolate the purported price
premium, plaintiffs often retain an expert to prepare a conjoint analysis, an
economic analysis that supposedly measures the product’s fair market value
based on consumer responses to surveys supposedly designed to measure
consumers’ “willingness to pay.”
However, courts have been increasingly skeptical of the use of conjoint
analyses as a method of establishing class injury. For example, while
conjoint analyses purport to measure some buyers’ subjective valuations of
product features (i.e., “willingness to pay”), they often ignore supply-side
factors for determining a fair market value (i.e., “willingness to sell”). See,
e.g., Zakaria v. Gerber Prods. Co., 2017 U.S. Dist. LEXIS 221124, at *57
(C.D. Cal., Aug. 9, 2017) (Plaintiff “failed to show that the [conjoint analysis]
employed by [its expert] sufficiently accounted for the actual price of [the
allegedly falsely advertised product], or the market conditions in which that
product was sold.”).
Class Action Plaintiffs Have Struggled to Proffer Reliable
Conjoint Analyses to Establish Injury Across the Class
In Comcast Corp. v. Behrend, the Supreme Court held that calculation of
damages in a class action must not only be subject to common proof; but that
the model for the calculation must also “be consistent with [the plaintiffs’]
liability case . . . [and] courts must conduct a rigorous analysis to determine
whether that is so.” 569 U.S. 27, 35 (2013). In an attempt to proffer a method
of establishing class injury that is consistent with their liability case, plaintiffs
In This Issue
The Shortcomings of Conjoint
Analyses in Measuring Fair
Market Value
Page 1
Class Action Dominos: Eleventh
Circuit Strikes Incentive Awards
for Class Representatives
Page 4
About Weil’s Class Action
Practice
Page 6
Appendix: Keeping a Transferee
Judge for Trial in a Multidistrict
Litigation
Page 7
Class Action Honors
