Statistics in Class Certification and at Trial: Leveraging and Attacking Statistical Evidence

Lessons From Recent Cases on the Use of Statistics to Prove Classwide Liability and Damages

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

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Conducted on Tuesday, November 9, 2021

Recorded event now available

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Course Materials

This CLE course will explore and guide trial lawyers on the use of statistical analyses in class litigation.


Statistical evidence is commonly used by both sides in class action cases, including employment discrimination cases, wage and hour cases, missed meal and rest break cases, and antitrust cases.

In the employment context, defendants frequently argue that the Supreme Court decisions in Wal-Mart Stores v. Dukes and Comcast v. Behrend have limited the use of statistical evidence in class action cases. Plaintiffs respond that the Supreme Court approved the use of statistical evidence in Tyson Foods v. Bouaphakeo.

In Tyson, the Supreme Court declined to establish a general rule for statistical evidence, concluding that it varies based on the claims asserted in a particular case, and emphasized that in many cases, statistical evidence is admissible and an appropriate means to establish both liability and damages. Other cases have narrowed the Dukes and Comcast decisions to the specific facts of those cases.

Listen as our experienced panel of practitioners examines the use of statistics in class litigation and the implications of recent case law for class litigators seeking to use or restrict these kinds of evidence during class certification and trial.



  1. Overview of statistical concepts and their uses
  2. Notable case law
  3. Strategic considerations


The panel will review these and other key issues:

  • What are the implications of recent case law on using statistical sampling to prove classwide liability and damages?
  • What types of statistics can be introduced during certification and trial, and what are the proper ways to use them?
  • What are the most compelling challenges to the use of statistical evidence?


Finberg, James
James M. Finberg

Altshuler Berzon

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

Aphrodite Kokolis

Schiff Hardin

Ms. Kokolis has a special practice emphasis on complex and appellate litigation, particularly the defense and...  |  Read More

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