The Ninth Circuit recently reiterated that plaintiffs seeking class certification cannot show damages are susceptible to common proof by “[m]erely gesturing” at a damages model or “describing a general method” of calculating damages. That reminder comes from Heagney v. John Paul Mitchell Systems, No. 25-6818, 2026 WL 3017602 (9th Cir. Oct. 7, 2026), where a divided panel vacated class certification because the plaintiffs’ expert offered damages methodologies that were “skeletal and substantially preliminary in nature.”
The case centered on the plaintiffs’ allegations that labels on John Paul Mitchell Systems (JPMS) hair care products misrepresented that JPMS did not conduct animal testing of its cosmetics. In reviewing the district court’s order granting class certification, the Ninth Circuit affirmed several aspects of the district court’s analysis. However, it parted ways with the district court on the question of whether the plaintiffs had provided sufficient evidence that damages could be measured on a classwide basis.
The Ninth Circuit identified three deficiencies in the plaintiffs’ damages showing. First, although the plaintiffs’ expert had substantial experience performing hedonic regressions and had previously analyzed conjoint surveys, he had limited experience designing and executing consumer surveys. Second, the expert’s proposed pricing and conjoint analysis models “were generic, lacked details, and were insufficiently designed.” The expert did not “meaningfully analyze economic or market data, determine the variables or data he would use in his models, or select the analytical method—conjoint analysis vs. hedonic pricing—that he would apply.” Finally, the expert “did not identify the target population beyond broad generalities, nor did he identify any comparator brands to be shown in his survey.”
Notably, the Ninth Circuit reached this result by distinguishing two of its earlier decisions, Lytle v. Nutramax Lab’ys, Inc., 114 F.4th 1011 (9th Cir. 2024) and Noohi v. Johnson & Johnson Consumer Inc., 146 F.4th 854 (9th Cir. 2025), both of which rejected claims that a proposed damages model was too underdeveloped. Although the opinion is unpublished, it provides a template for challenging damages experts whose models or methodologies are overly preliminary.