“There are three kinds of lies: lies, damned lies and statistics.” The California Supreme Court could have been channeling Mark Twain when it rejected, emphatically, the unbridled use of statistical sampling to prove liability in a class action wage/hour case. In a unanimous decision, California’s high court in Duran v. U.S. Bank National Association, No. S200923 (May 29, 2014) gave the heave-ho to the kind of “trial by formula” that has become a feature of modern-day wage/hour litigation. At the same time, the court restored some sanity to class action litigation generally.

FACTS OF DURAN -

This class action was filed against U.S. Bank on behalf of 260 business banking officers (BBOs) who claimed they were denied overtime pay and meal/rest breaks. Liability turned on whether the bank misclassified the BBOs as exempt under the “outside salesperson” exemption, which applies to someone who spends more than 50% of the time on sales activities outside the branch.