Bad Stats Still Don't Show Predominance

Duran v. U.S. Bank Nat’l Assoc., No A148817 (D1d1 Feb. 9, 2018)

This is a post-remand appeal after the Supreme Court’s decision in Duran, which reversed a plaintiff-side judgment in a wage and hour class action, because Plaintiff was permitted to rely on sketchy statistical evidence for both class cert and liability. On remand, the trial court denied cert, finding that plaintiffs couldn’t cure the ails that the Supreme Court pointed out.

And the Court of Appeal agrees. The statistical evidence that Plaintiff came up with after the reversal wasn’t good enough to fix the problems that the Supreme Court identified. In particular, Plaintiff had his expert do another survey of the putative class, but the survey still had significant problems with sample bias and the rate of error was too high to merit extrapolating the data to the whole class. Indeed, the new survey had significant discrepancies in responses from the same class exact members on the first go-round. That’s all just too unreliable to let some survey data stand in for the individual work experiences of the actual members of the class.

Affirmed.