On the heels of the Ninth Circuit’s recent decision in Bowerman—which held that questions concerning the “existence of damages” for each class member can prevent certification—the Eleventh Circuit became the latest in a growing number of courts to conclude that class certification should be denied when plaintiffs cannot prove that each individual class member actually suffered damages.

In Baker v. State Farm Mutual Automobile Insurance Company, 2022 WL 3452469, at *1 (11th Cir. Aug. 18, 2022), plaintiffs alleged that State Farm’s formula for assessing diminution in vehicle value systematically understated the true diminished value, thereby leading to underpayment of claims.  In support of class certification, plaintiffs submitted an expert sample of seventy-five individual claims where State Farm’s formula purportedly under-assessed the true diminished value.  Id. at *3.  On that basis, plaintiffs argued that State Farm’s liability could be established by common proof.

The Eleventh Circuit disagreed, affirming the district court’s conclusion that plaintiffs’ expert sample failed to demonstrate that State Farm’s formula always under-assessed diminished value across the broad spectrum of vehicles and types of damage included in the class.  Id. at *4.  Because “the central liability question” for each class member—i.e., whether State Farm’s formula resulted in under-assessment of a particular claim—required individualized proof, the Eleventh Circuit concluded that plaintiffs had failed to satisfy Rule 23(b)(3)’s predominance requirement.  Id.

Baker emphasizes the continued importance of framing individualized damages issues as questions of fact of injury required to establish liability rather than damages per se.  Although courts have been reluctant to conclude that certification should be denied when the quantum of each class member’s damages requires individual proof, they have broadly concluded that certification should be denied when plaintiffs’ “common proof” is insufficient to demonstrate that the defendant is liable to each individual class member.

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Photo of Steve Petkis Steve Petkis

Steve Petkis is a partner in the firm’s Washington, DC office, where he represents a variety of clients in their most sensitive, complex, and high-stakes litigation matters in both state and federal court. He regularly defends life sciences clients and other regulated entities…

Steve Petkis is a partner in the firm’s Washington, DC office, where he represents a variety of clients in their most sensitive, complex, and high-stakes litigation matters in both state and federal court. He regularly defends life sciences clients and other regulated entities against class action and mass tort claims that span jurisdictions.

Steve handles cases from pre-litigation planning through appeal, with a proven record of delivering victories at all stages. He was a member of the trial team that secured a complete defense win for McKesson in a landmark public nuisance case involving prescription opioid medications. In addition, his briefing strategies, fact and expert depositions, and courtroom stand-up have helped steer a number of other clients to highly-favorable resolutions that eliminate billions of dollars in potential exposure.

Steve previously served as a law clerk to Judge Katherine B. Forrest on the United States District Court for the Southern District of New York. He maintains an active pro bono practice focused on civil rights and criminal justice issues.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims, with exposure ranging from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, gaming, and media and communications industries. He has consistently helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew has a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters and his deep understanding of their businesses.

Andrew’s recent successes include:

Leading the successful defense of several of the world’s leading companies and brands in class actions accusing them of engaging in deceptive marketing or selling defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivered wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including defending several financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
Represented several consumer product and life sciences companies from lawsuits seeking economic damages arising out of the sale of products that allegedly caused personal injuries.
Helping several of the world’s most prominent companies from ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes for clients in commercial and indemnification disputes involving contracts, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. Additionally, he provides guidance on arbitration agreements and has helped numerous clients avoid multi-district and class-action litigation by enforcing their arbitration agreements.

As a recognized thought leader on issues impacting class action litigation, Andrew regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in an interview with Litigation Daily on class-action litigation issues. In recognition of his achievements, he has been recognized by The American Lawyer as a Lawyer of the Week, and the Daily Journal recently included him on their list of Leading Commercial Litigators (2025).

Watch: Andrew shares insights on class action litigation, as part of our Navigating Class Actions video series.

 

Photo of Sonya Winner Sonya Winner

A litigator with three decades of experience, Sonya Winner handles high-stakes civil cases for clients in a wide range of industries, including banking, pharmaceuticals and professional sports.  She has handled numerous antitrust and consumer disputes, many of them class actions, in state and…

A litigator with three decades of experience, Sonya Winner handles high-stakes civil cases for clients in a wide range of industries, including banking, pharmaceuticals and professional sports.  She has handled numerous antitrust and consumer disputes, many of them class actions, in state and federal courts across the country.

Sonya’s cases typically involve difficult technical issues and/or complex legal and regulatory schemes. She is regularly able to resolve cases before the trial phase, often through dispositive motions. But when neither summary judgment nor a favorable settlement is an option, she has the confidence of her clients to take the case all the way through trial and on appeal. Her recent successes have included a cutting-edge decision rejecting a “true lender” challenge to National Bank Act preemption in a class action involving interest rates on student loans, as well as the outright dismissal of a putative antitrust claim against the National Football League and its member clubs asserting an unlawful conspiracy to fix cheerleader compensation. 

Sonya has been recognized as a leading trial lawyer by publications like Chambers and the Daily Journal. She is chair of the firm’s Class Action Litigation Practice Group.