Supreme Court Decision in Tyson Foods Provides Road Map For Use Of Sampling In FCA Cases

The Supreme Court recently ruled that plaintiffs under the Fair Labor Standards Act may, in at least certain circumstances, use statistical sampling to establish liability.  See Tyson Foods v. Bouphakeo, 135 S. Ct. 2806 (2015).  The Court’s embrace of the use of statistical sampling suggests that it would be unlikely to hold in the FCA context that sampling is per se inappropriate to demonstrate liability.  However, Tyson Foods does not suggest that sampling is appropriate in every case, and the opinion provides helpful guidance as to the circumstances under which statistical sampling might not be appropriate to establish FCA liability.  We explore these arguments in an article available here.