Surveying the class certification opinions from 2014 in cases involving alleged false advertising of food and beverage products demonstrates the continued difficulty in certifying these class actions. The U.S. Supreme Court’s analysis of proposed class-wide damages models in Comcast v. Behrend has proven to be a particularly high hurdle.
In response, some courts have moved increasingly toward the certification of liability-only classes, deferring the damages issues and effectively continuing to pressure defendants to settle cases in which there are significant questions regarding whether the class can satisfy the Federal Rules of Civil Procedure for class actions—specifically, Rule 23.
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