In a recent wage and hour class action, the Ninth Circuit affirmed a class certification order under Federal Rule  of Civil Procedure 23(b)(3) on the ground that "statistical sampling of class members could accurately and  efficiently resolve the question of liability." Jimenez v. Allstate Ins. Co., No. 12-56112 (9th Cir. Sept. 3, 2014).  The class was defined to include five different types of claims adjusters (about 800 Allstate employees) in 13  offices in California. The state-law liability questions turned on whether Allstate had a practice or policy of requiring the class to work unpaid, off-the-clock overtime in violation of California law.

The Ninth Circuit rejected Allstate's arguments that its due process rights would be violated because it could  not raise affirmative defenses at trial and that the use of statistical sampling contradicts Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). The Ninth Circuit explained that since Dukes and Comcast Corp. v. Behrend, 133 S.Ct.1426 (2013), "circuit courts including this one have consistently held that statistical sampling and  representative testimony are acceptable ways to determine liability so long as the use of these techniques is  not expanded into the realm of damages." In the case before it, the Ninth Circuit emphasized that the class  certification order preserved Allstate's opportunity to raise any individualized defenses (e.g., a class member  only performed de minimis amounts of off-the-clock overtime) during the damages phase of the proceedings