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

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

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

Conducted on Wednesday, September 2, 2015

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will explore and provide guidance to litigators on the use of statistical analysis in employment class action litigation. The panel will discuss the growing use of statistical evidence in class certification proceedings and as evidence bearing on class-wide liability and damages. The panel will also review the implications of recent case law addressing statistical sampling and inferences, and offer strategies for employment counsel to leverage or attack the use of statistics at the class certification stage and at trial.


The role of statistics in class actions remains controversial. Plaintiffs continue to use statistical methods to prove commonality and predominance and establish class-wide injury and damages, while defendants challenge some methodologies that implicitly violate principles of statistical analysis. Effectively using or successfully challenging statistical evidence can make a difference in winning or losing a wage and hour case, and employment litigators must have a masterful understanding of statistical sampling and its challenges.

The seminal Wal-Mart v. Dukes ruling focused significant attention on the use and limitations of statistics in class certification contests, while Comcast v. Behrend reinforced Dukes by requiring econometric damage analysis to correspond to liability theories. In 2014, the Duran v. U.S. Bank N.A. ruling provided further guidance for the use of statistical analysis at certification and trial.

Nevertheless, controversy and questions over the use of statistics linger as plaintiffs continue to rely on statistics to validate the propriety of class treatment. Several 2014 court decisions examined the sufficiency of statistical evidence in class litigation, and a Supreme Court ruling in Tyson Foods Inc. v. Bouaphakeo is looming.

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



  1. Review of recent case law
  2. Plaintiff strategies for leveraging statistical evidence
  3. Defense strategies for attacking statistical evidence


The panel will review these and other key issues:

  • What are the implications of recent case law on the use of statistical sampling to prove class-wide liability and damages?
  • 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 evidence?


Bradley J. Hamburger, Esq.
Bradley J. Hamburger, Esq.

Gibson Dunn & Crutcher

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

Christine E. Webber
Christine E. Webber

Cohen Milstein Sellers & Toll

Ms. Webber represents plaintiffs in class action employment discrimination and Fair Labor Standards Act cases,...  |  Read More

Additional faculty
to be announced.

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