“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 and hour case. In a unanimous decision, California’s high court in Duran v. U.S. Bank National Association gave the heave-ho to the kind of “trial by formula” that has become a feature of modern-day wage and hour litigation.
At the same time, the state high court restored some sanity to class action litigation more generally. While it might be tempting to view Duran as strictly an employment case, the far-reaching implications for class actions across the board cannot be overstated. Practitioners should review their existing California state and federal class actions and evaluate whether Duran can be used to their advantage.
Originally published in Law360 on June 16, 2014.
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