In Pulaski & Middleman, LLC v. Google, Inc., ___ F.3d ___ (9th Cir. Sept. 21, 2015), the Ninth Circuit reversed an order denying class certification of UCL and FAL claims.
Consistent with its earlier opinions Stearns and Yokoyama, as well as the California Supreme Court's Tobacco II opinion, the Court held that variations in the amount of recoverable restitution do not defeat class certification. Slip op. at 10-17 (citing Stearns v. Ticketmaster Corp., 655 F.3d 1013 (9th Cir. 2011); Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010); In re Tobacco II Cases, 46 Cal.4th 298 (2009)).
Rather, "restitution is available on a classwide basis once the class representative makes the threshold showing of liability under the UCL and FAL." Id. at 14. That "threshold showing" requires proof only that "members of the public are likely to be deceived" by the defendant's conduct. Id. at 11 (quoting Tobacco II, 46 Cal.4th at 312).
The Court also held (as it had done previously in Leyva and Jimenez) that "differences in damage calculations do not defeat class certification," even after the U.S. Supreme Court's Comcast opinion. Slip op. at 17 (citing Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013); Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014); Leyva v. Medline Industries, Inc., 716 F.3d 510 (9th Cir. 2013)).
Finally, the Court held that the plaintiffs' proposed method for calculating restitution was not "arbitrary." Slip op. at 18-20. This section of the opinion contains an interesting discussion of the different possible ways to measure restitution under the UCL, and considers both Colgan v. Leatherman Tool Group, 135 Cal.App.4th 663 (2006) (see this blog post) and Kwikset Corp. v. Superior Court (Benson), 51 Cal.4th 310 (2011).