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Duran vs. US Bank - Don’t buy the defense/ employer’s spin doctoring

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A Big Overtime Case

The Supreme Court issued it’s long awaited opinion in Duran vs. US Bank National Association. As usual, the defense/ employers crowed that it was a huge victory for employers. Here is a sampling of the headlines:

“Due process does not end with class action certification”

“Calif. High Court Sides With US Bank In Duran OT Fight”

“Calif. High Court Nixes $15M Win In US Bank OT Case”

Here We Go Again

Oh really?  The Court of Appeals gutted the case and the Supreme Court sends it back to the trial court to live another day. And the Supreme Court ruled for US Bank? Are you kidding?

Based on what I see it is more of the same defense spinning that has no basis in reality. The same thing happened in Brinker v. Superior Court. The defense initially crowed about how employers won in the Brinker case. As many of you know, I am Plaintiff’s lawyer in Brinker. The Brinker case is so bad I wish I had 100 cases just like the Brinker case. Seriously, things have gone very bad for Brinker back in the trial court after the Supreme Court’s historic decision.

So let’s take a closer look at Duran vs. US Bank. The issue in Duran was whether employees were mis-classified as outside salespeople. That is, whether employer failed to pay them overtime.  The Duran Supreme Court didn’t outright reject mis-classification cases. Instead, it was a much more nuanced decision.  However, mis-classification cases are alive and well in California - as are wage and hour class action cases.

That Line at the Bottom

Here is the bottom line on the Duran case. US Bank and the employer’s amicus argued that statistical sampling should not be used to prove liability. The Duran decision holds, “statistical sampling may provide an appropriate means of proving liability and damages" in class action litigation.

US Bank and the employer’s amicus argued that based upon “due process” it could defend a class action case by calling every employee to the witness stand in defending the class action at trial. The California Supreme court nixed this notion in summary fashion.

Many, many times I have said, “Bad facts equals bad law”  The facts and/or evidence in the Duran case wasn’t the real problem.  The problem was the trial court’s rulings.  Everyone - both Plaintiff lawyers and Defense lawyers - realized  the trial judge made some hard to justify rulings in the Duran case. The evidence wasn’t the real issue - the court’s rulings were the real issue.   

US Bank and all the employer groups sought to turn that into a sweeping reform of wage and hour class actions and sought to shut down wage and hour class actions in California - just like they did in the Brinker case.  Only it didn’t happen in Brinker and it didn’t happen in Duran. 

It’s All About The Glue

As a trial lawyer that is trying to marshal the evidence needed to win, here is the key quote in the opinion:

“If sufficient common questions exist to support class certification, it may be possible to manage individual issues through the use of surveys and statistical sampling.  Statistical methods cannot entirely substitute for common proof, however.  There must be some glue that binds class members together apart from statistical evidence.”

That glue is a uniform policy and/or practice: That is, where an employer has a "consistently applied policy or uniform job requirements and expectations contrary to a Labor Code exemption, or if it knowingly encouraged a uniform de facto practice inconsistent with the exemption."  Just as was shown in Brinker, you win these cases by demonstrating a common policy and/or practice. That is the glue needed to bind the case together. The statistical sampling has to be used to support the illegal uniform policy and/or practice. But, the glue is the "special sauce" needed to win.

Justice Wedergar Lives

Those of us on the workers’ side have repeatedly reiterated Justice Wedergar’s concurring opinion in the Brinker case. In the Duran case, the Supreme Court  repeatedly referred to Justice Wedergar’s concurring opinion in the Brinker case with approval where she correctly observed that individualized liability and damage questions do not shut down class action cases. Instead, trial courts have to fashion procedurally innovative trial plans.

Which of course, is one of the huge take away points in Duran. In order to prevail at class certification, Plaintiffs are going to need to carefully craft a trial plan that is procedurally fair.

What to Expect Going Forward

What we can expect going forward is for employers in every wage and hour class action case to scream and shout that no trial plan can be procedurally fair and therefore the trial court can’t approve class certification or approve the trial plan and ensure fairness to the defense. However, that just isn’t what the Supreme Court ruled in Duran. In other words, don't buy the spin.

William Turley
“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”
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