“Pulaski alleges that Google misled advertisers by failing to disclose the placement of AdWords ads on parked domains and error pages…. The district court denied certification because it found that the putative class did not meet the predominance requirement. It explained that questions regarding which advertisers are entitled to restitution in the first instance, and the amount of restitution owed to each advertiser, both defeat predominance. We disagree….
“Entitlement to restitution is a separate inquiry from the amount of restitution owed.” Under California consumer protection and false advertising law, “a court need not make individual determinations regarding entitlement to restitution. Instead, restitution is available on a classwide basis once the class representative makes the threshold showing of liability….
“Google argues that Comcast v. Behrend called Yokoyama’s holding into question. There, in analyzing a putative antitrust class, the Court held that the plaintiffs’ proposed damages model fell ‘far short of establishing that damages are capable of measurement on a classwide basis.’ …. Since Comcast, we have continued to apply Yokoyama’s central holding. In Levya v. Medline Industries, Inc., we explained that Comcast stood for the proposition that ‘plaintiffs must be able to show that their damages stemmed from the defendant’s actions that created the legal liability.’ 716 F.3d 514; see also Roach v. T.L. Cannon, 778 F.3d at 407 (2d Cir. 2015) (‘Comcast held that a model for determining classwide damages relied upon to certify a class under Rule 23(b)(3) must actually measure damages that result from the class’s asserted theory of injury; but the Court did not hold that proponents of class certification must rely upon a classwide damages model to demonstrate predominance’). The putative class’s problem in Comcast was that the damages model ‘did not isolate damages resulting from any one theory of antitrust impact’ …. we reversed a denial of class certification in part because the ‘damages could feasibly and efficiently be calculated once the common liability questions are adjudicated.’…
“Here, the harm alleged is Google’s placement of ads on lower-quality web pages without the advertisers’ knowledge. Pulaski’s principal method for calculating restitution employs Google’s Smart Pricing ratio, which directly addresses Google’s alleged unfair practice by setting advertisers’ bids to the levels a rational advertiser would have bid if it had access to all of Google’s data about how ads perform on different websites. Because restitution under the UCL and FAL measures what the advertiser would have paid at the outset, rather than accounting for what occurred after the purchase, using a ratio from Google’s data that adjusts for web page quality is both targeted to remedying the alleged harm and does not turn on individual circumstances.”
Pulaski & Middleman v. Google, No.12-16752 (9th Cir. Sept. 21, 2015).
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