Cari K. Dawson
With its recent ruling in Duran v. U.S. Bank Nat. Assn., the California Supreme Court has brought some much-needed clarity to in-house counsel grappling with class action lawsuits, according to Alston & Bird Partners Cari K. Dawson and Lisa H. Cassilly
In interviews with WIPL, they point to the similarities between that case and the U.S. Supreme Court ruling in Wal-Mart Stores, Inc. v. Dukes. Both decisions turn on the rights of defendants to present affirmative defenses and the limitations of trials using flawed statistical sampling models.
Dawson pointed to “3.5 takeaways” from the Duran decision that in-house counsel should be aware of:
1. The Duran ruling demonstrates that in California courts, there will be enhanced scrutiny of statistical sampling in determining classes, which is a positive development for defendants.
Going forward, Dawson suggested that in-house counsel should understand the importance of developing an affirmative story and to focus on the facts as much as the law. “Sometimes, legal counsel get so focused on the legal arguments that they forget about factual arguments. U.S. Bank did an excellent job of developing its factual record,” she said.
Considering the role that statistical sampling played in the case, Dawson also suggested that in-house counsel develop relationships with experts before they need them, like the plaintiffs’ bar often does. “You need people in your stable that you can tap into,” she said.