Individual Damages Questions Can't "Predominate" Over Common Questions--Except When They Can

Ordinarily, the need for an individualized calculation of damages is insufficient to "predominate" over common questions in a Rule 23(b)(3) analysis. But when the calculation is so complex as to thwart the use of common methodology, or when some class members may not be entitled to damages at all, Rule 23(b)(3) certification may be in danger. Such was the case in a California federal court's recent denial of class certification in In Re Google AdWords Litigation.

In Google AdWords, the plaintiffs moved to certify a class of advertisers who were charged by Google for clicks on their advertisements that Google placed on "parked domains or error pages," which the plaintiffs claim to be undesirable, if not completely worthless, advertising space. The plaintiffs allege that Google engaged in deceptive advertising and unfair and deceptive business practices by posting their ads in violation of the California Business and Profession Code.