Statistical Sampling Inappropriate In Wage And Hour Class Action

In an opinion with significant implications for California employment law class actions, the California Court of Appeal in Duran v. U.S. Bank National Association ruled that a trial court's use of statistical sampling violated the defendant's due process rights. On February 6, the First Appellate District decertified the Duran class and overturned a $15 million judgment that was entered following a bench trial at which a sampling of class members was used to determine liability and damages for the entire class.¹ Citing approvingly to language in the U.S. Supreme Court's recent Wal-Mart Stores, Inc. v. Dukes² decision, the Court of Appeal observed that this "trial by formula" was inappropriate, and further held that using sampling to establish classwide liability violated the defendant's due process rights to challenge each class member's claims.