Dukes v. Wal-Mart, 603 F.3d. 571 (9th Cir.) (en banc), cert granted, 131 S. Ct. 795 (Dec. 6, 2010) (No. 10-277), has attracted considerable attention and fomented much anxiety within the plaintiffs’ bar, principally because its pending review by the United States Supreme Court holds the prospect of dissolving the familiar and strict divide between class certification analysis and merits analysis. While that is a legitimately troubling prospect that will be separately addressed in the Impact Litigation Journal, one part of the Ninth Circuit’s Dukes decision not likely to be upset is its embrace of sophisticated statistical and survey methodologies, with intimations that surveys can and should be used not only to determine damages (a relatively uncontroversial use) but also as to core liability determinations.
Although respected resources such as the Manual for Complex Litigation and occasional decisions out of the Second Circuit and the district courts within it (most notably Judge Jack B. Weinstein) have embraced survey methods, the law has tended to lag behind the social sciences in its comfort with sampling and survey methods. There is substantial irony in the fact that stacks of declarations, typically attorney-written and nearly identical, have become staples of admissible evidence both in support of and in opposition to class certification, while the same cases that credit declarations are often skeptical of rigorous survey evidence. Dukes, however, is the most comprehensive and forward-looking statement about the use of survey evidence from any California court, state or federal.
Dukes stands as a foundation for the increased use of sampling and surveys in class actions, in particular to determine class-wide liability. First, the Dukes panel confirmed the intrinsic utility of survey methods in determining the predominance of common questions of law and fact. See Dukes at 598 (“In short, and as we will now explain, at the certification stage, it is difficult for us to envision a more rigorous analysis than the one the district court conducted.”). Further, with unusual candor, Dukes notes that if survey methods are capable of framing the common questions of law and fact, so, too, are survey methods capable of answering those questions—i.e., making the “merits,” or liability, determination:
For practical purposes, assuming a plaintiff possesses anecdotal evidence, the plaintiff’s statistical evidence does not overlap with the merits, it largely is the merits (citation omitted). This means that disputes over whose statistics are more persuasive are often not disputes about whether the plaintiffs raise common issues or questions, but are really arguments going to proof of the merits.
Dukes v. Wal-Mart at 591.
Already an influential case, the ultimate Dukes legacy is in the Supreme Court’s hands. However, the frank discussion of using surveys to establish class-wide liability is underway. The use of sampling and surveys to make factual determinations as to large populations is an established scientific method, and it appears that courts may now be ready to embrace it fully.