## Facts

- A consumer downloaded a free trial of a computer utility program marketed as diagnosing and fixing performance problems and warning of “serious errors” and a “critical condition.”
- After receiving alarming scan results, he purchased the paid version; he alleged the program did not improve performance and continued to generate critical warnings and error counts regardless of actual computer condition.
- He filed a putative class action alleging the software was effectively worthless and sold through uniform misrepresentations in advertising and the trial scan results.
- In the district court, the proposed class was narrowed from all U.S. purchasers to U.S. individuals who downloaded the trial and then purchased the full version within a defined three-year period.
- The district court certified (1) a nationwide class for certain implied-warranty claims and (2) an Illinois subclass for Illinois consumer-fraud claims.
- The defendant sought interlocutory review under Rule 23(f), challenging certification on pleadings mismatch, choice-of-law and estoppel, Rule 23(a) requirements, Rule 23(b)(3) predominance/superiority, expert damages methodology, and adequacy/unique defenses.

## Issues

1. Whether a district court may certify a narrower class than initially pleaded when the liability theory remains the same and the defendant is not unfairly surprised.
2. Whether choice-of-law and judicial-estoppel objections not raised in the district court may be considered on a Rule 23(f) interlocutory appeal.
3. Whether the named plaintiff satisfied Rule 23(a) commonality, typicality, and adequacy given alleged individualized circumstances and defenses.
4. Whether common issues predominated and a class action was superior under Rule 23(b)(3) for claims involving allegedly uniform software behavior and marketing.
5. Whether the plaintiff’s expert evidence and damages model were sufficiently tied to the theory of liability to support certification.

## Decision

- The Seventh Circuit affirmed the certification of the nationwide class and the Illinois subclass.
- The court held the narrowed class definition was a permissible refinement consistent with the same core theory of deceptive marketing and “worthless” product allegations, and it did not cause unfair surprise.
- The court declined to consider certain choice-of-law/judicial-estoppel arguments because they were not properly raised in the district court and were forfeited on appeal.
- The court agreed that Rule 23(a) requirements were met: common questions stemmed from standardized marketing and scan outputs; the named plaintiff’s experience was typical; and no disabling, unique defense defeated adequacy.
- The court held Rule 23(b)(3) predominance and superiority were satisfied because liability questions were common and individual damages were small, making aggregate litigation an efficient enforcement mechanism.
- The court upheld the district court’s use of expert evidence at certification, concluding the proposed classwide damages approach was plausibly capable of measuring overpayment consistent with the liability theory.

## Legal Principles

- A class definition may be narrowed at certification if it remains aligned with the operative theory of liability and does not prejudice the defendant through unfair surprise.
- Arguments not presented to the district court are generally forfeited and will not be entertained for the first time on a Rule 23(f) interlocutory appeal.
- In consumer cases involving standardized representations and uniform product behavior, common questions about deception and injury can predominate even if class members’ experiences vary at the margins.
- For Rule 23(b)(3) superiority, small-value consumer claims may favor class treatment because individual suits are unlikely and aggregate proceedings can deter widespread misconduct.
- At certification, expert evidence supporting classwide impact and damages must be consistent with the plaintiff’s theory of liability; disputes about precision may be reserved for later merits proceedings.

## Conclusion

The Seventh Circuit affirmed certification of nationwide and Illinois consumer classes challenging allegedly deceptive software marketing, holding that a narrowed class definition was permissible, forfeited appellate arguments would not be heard, and the record supported Rule 23(a) and Rule 23(b)(3) findings, including reliance on a classwide damages methodology tied to the alleged overpayment injury.


Beaton v. SpeedyPC Software, 907 F.3d 1018 (7th Cir. 2018)