Statistical Evidence in Wage and Hour Class Actions Since Tyson Foods: Impact on 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, December 12, 2018

Recorded event now available

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Program Materials

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. The panel will discuss how the lower courts are applying Tyson Foods Inc. v. Bouaphakeo, review statistical sampling techniques relevant to wage and hour cases, and examine best practices for employment counsel going forward.


In the highly anticipated decision, Tyson Foods Inc. v. Bouaphakeo, the U.S. Supreme Court ruled in 2016 against the employer, holding that in some circumstances statistical sampling may be used to infer hours employees 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 the 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 representative, and arguing for a more individualized determination of liability and damages as 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
  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?


Finberg, James
James M. Finberg

Altshuler Berzon

Mr. Finberg’s practice consists primarily of representing employees in class and collective actions...  |  Read More

Hamburger, Bradley
Bradley J. Hamburger

Gibson Dunn & Crutcher

Mr. Hamburger practices in the firm’s Class Actions, Appellate and Constitutional Law, and Labor and Employment...  |  Read More

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