In preparing for our webinar on the use of statistics in class actions tomorrow, I discovered that the California Supreme Court has granted review in Duran v. U.S. Bank, a case that could have major implications for the future of statistical sampling as common proof in class actions. See my April 6, 2012 post titled Trial by Formula, Statistical Sampling, and the Right to Due Process for a summary of the Court of Appeal’s decision, which has lost its precedential effect by virtue of the decision to grant review. The supreme court’s docket for the case is available here. Kimberly Kralowec has posted many of the court documents on her blog, The UCL Practitioner.
The folks at the Litigation Impact Journal have noted that the decision to grant review in Duran was foreshadowed by Justice Werdegar’s concurrence in his own majority opinion in the California Supreme Court’s highly publicized decision last month in Brinker Restaurant Corp. v. Superior Court. In that concurrence, Justice Werdeger argued that “[r]epresentative testimony, surveys, and statistical analysis all are available as tools to render manageable determinations of the extent of liability [in wage and hour cases].” In Duran, the court will have an opportunity to explore that issue in more detail.