The Supreme Court recently granted cert. to address the use of statistics as a basis for class liability and damages findings in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146.

Outside of certain limited contexts, the courts have generally been cool to the practice for decades. One underlying theme is that even ideally-run statistically analyses lead only to generalizations about populations, not determinative findings about individuals within those populations. Basing decisions on population-level information tends to obscure the individualized factors of the specific case or controversy between the litigants.

Thus, in Walmart v. Dukes, the Supreme Court picked up on this theme and disapproved the “novel project” of using sample cases to decide liability for class members.

That precedent notwithstanding, a divided Eighth Circuit held that workers could use statistical analyses to decide liability and damages in FLSA cases.

The Supreme Court’s cert. grant is an opportunity to reinforce the dominant strand of the law on using statistics to decide liability and damages.