Statistical Evidence in Wage and Hour Class Actions: Implications of Tyson Foods for Certification and Trial

Disputing or Leveraging Representative Sampling to Prove Classwide Liability and Damages

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, June 14, 2017
Recorded event now available

This CLE webinar will arm employment counsel with strategic approaches for disputing or leveraging the use of statistical evidence to establish classwide liability in wage and hour actions in the wake of the Supreme Court’s 2016 decision, Tyson Foods Inc. v. Bouaphakeo. The panel will discuss the most significant aspects of the Court’s ruling and how the case is being applied by lower courts, review statistical sampling techniques relevant to wage and hour cases, and examine best practices for employment counsel going forward.


In the highly anticipated 2016 decision, Tyson Foods Inc. v. Bouaphakeo, the U.S. Supreme Court ruled against the employer, holding that statistical sampling in some circumstances could be used to infer hours employees actually worked and to establish classwide liability in an FLSA action.

Attempts to use statistical evidence are now a routine part of complex wage and hour litigation. In many cases, plaintiffs seek to use testimony of a representative sample of employees to establish a prima facie case under the FLSA or state wage and hour statutes. As such, defense counsel must prepare to challenge the propriety of using statistical sampling and the soundness of any statistical methodology.

Effective defense techniques include contesting whether the use of sampling would be appropriate under the framework established in Tyson Foods, challenging whether the sample used is in fact representative, and arguing that a more individualized determination of liability and damages is required by the Rules Enabling Act or due process.

Listen as our distinguished panel reviews strategic approaches to disputing or leveraging statistical evidence in wage and hour class actions in light of the Tyson Foods ruling. Our panel will discuss how lower courts are applying the ruling, review statistical sampling techniques relevant to wage and hour cases, and offer best practices for plaintiff and defense counsel.


  1. Review of Tyson Foods Inc. v. Bouaphakeo
  2. How lower courts are applying Tyson Foods Inc. v. Bouaphakeo
  3. Statistical evidence and liability
  4. Plaintiff strategies for leveraging statistical evidence
  5. Defense strategies for attacking statistical evidence


The panel will review these and other key issues:

  • How are lower courts applying the Supreme Court’s decision in Tyson Foods Inc. v. Bouaphakeo?
  • What types of statistics can be introduced during certification and trial and what are the proper ways to utilize them?
  • What are the most effective challenges to the use of statistical sampling?
  • Under what circumstances should counsel advocate for individualized assessments of damages as opposed to extrapolating from an average?


James M. Finberg, Partner
Altshuler Berzon, San Francisco

Mr. Finberg’s practice consists primarily of representing employees in class and collective actions involving workplace discrimination and wage/hour violations, and representing voters in voting rights actions. He is the author, or co-author, of numerous articles and book chapters on various topics of discrimination and wage/hour law and the use and trial of class and collective actions.

Bradley J. Hamburger, Esq.
Gibson Dunn & Crutcher, Los Angeles

Mr. Hamburger practices in the firm’s Class Actions, Appellate and Constitutional Law, and Labor and Employment practice groups, and focuses on complex litigation and class actions in both trial courts and on appeal. He has defended clients in class actions across numerous substantive areas of law, including employment, consumer fraud and products liability.


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