The use of statistical sampling in support of class certification has become a recurring and closely followed issue in recent years. Most notably, the U.S. Supreme Court confirmed in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), that representative evidence in the form of statistical sampling may be used to support certification. The question now becomes what the parameters are.
This article examines a recent opinion from California, Duran v. U.S. Bank National Ass’n, 2018 WL 456769 (Cal. Ct. App. Jan. 17, 2018), that underscores the requirement that any sampling be sufficiently reliable. The article then examines other recent cases involving residential mortgage-backed securities (RMBSs) that underscore the fact that the use of sampling also depends on the context and subject matter of the case.