Supreme Court returns zero results in Google case

June 08, 2016 | By DEBORAH LA FETRA

The use of statistical sampling to generate common issues for resolution via class action presents serious due process questions. Someday, the Supreme Court will need to resolve those questions because constitutional protection of due process cannot be reconciled with statistical sampling that allows plaintiffs to forego any demonstration of individual injuries and prohibits defendants from raising individual defenses. Unfortunately, the Court denied cert in Google, Inc. v. Pulaski & Middleman, LLC on Monday, a case that would have allowed the Court to address the Ninth Circuit Court of Appeals’ categorical rule that individual damages issues can never defeat class certification. As previously discussed on the blog, PLF filed an amicus brief supporting the petition because of plaintiffs’ increasing use of statistical modeling in lieu of individual proof, particularly in consumer litigation brought under very broad state consumer protection statutes such as California’s notorious Unfair Competition Law. For the time being, the Ninth Circuit has a green light to continue its lax certification practices, and the issue will remain unsettled nationwide until it is heard by the Supreme Court.