Sampling Duran: The California Supreme Court’s Smack Down Of A Biased Sampling Scheme Isn’t Limited To California

Mark Twain famously said that “there are lies, damn lies, and statistics.”  A recent decision by the California Supreme Court provides a good example of why.  In Duran v. U.S. Bank, N.A., the Court put the kibosh on a trial court’s decision — in a wage-and-hour class action — to impose a “trial plan” which accepted evidence based only on a small sample of the class members.  The Court found that the trial court’s sampling plan created huge statistical biases in plaintiff’s favor, while violating the defendant’s due process rights.  We’ve previously discussed Duran.  What employers should realize, however, is thatDuran’s reasoning should extend far beyond California state law, and far beyond just the trial management stage.  With plaintiffs across the country hungry like a wolf to short-circuit employers’ due process rights, the California Supreme Court’s decision provides a model that employers can use to fight back certification efforts for FLSA collective actions and state wage-and-hour class actions.

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