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Duran v. United States Bank

Duran v. United States Bank

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Published by: www.BaileyDaily.com on Feb 07, 2012
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02/07/2012

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On April 8, 2008, USB filed its objections to the proposed Phase I statement of

decision that the trial court had ordered plaintiffs to prepare. USB‘s papers include a

declaration prepared by Hildreth, who raised several concerns regarding the proposed

statement‘s computation of the average number of overtime hours worked per week by

each of the testifying witnesses.

On May 7, 2008, plaintiffs filed an ex parte motion to amend its expert

declarations to include, in part, testimony regarding a telephonic survey of class members

that their survey expert Jon Krosnick had conducted after the close of Phase I. The trial

court granted the motion, noting it was not making an advance determination as to

whether the results of the survey would be admitted in evidence.

On July 10, 2008, USB filed a motion to exclude Krosnick‘s survey evidence.
On August 4, 2008, plaintiffs submitted their opposition to USB‘s motion to

exclude the new survey evidence. The opposition includes a declaration of Drogin,

stating the trial court‘s finding that the RWG members were improperly classified as

exempt could be ―reliably projected to the whole class‖ since the ruling was based on a
―random‖ sample. He quantified the average weekly unpaid overtime hours at 11.87

hours, with a margin of error of plus or minus 5.14 hours under a 95 percent confidence

interval.37

Though the margin of error was large, he deemed three other reliability factors

worked in favor of plaintiffs: (1) the high response rate among the RWG members, (2)

the absence of measurement error because ―we are actually sampling the court‘s findings,

which by definition, become a fact after the ruling is made,‖ and (3) Krosnick‘s survey

evidence, which showed the average overtime hours worked by RWG members appeared

37

―Confidence intervals are a technical refinement, and ‗confidence‘ is a term of art. For a given

confidence level, a narrower interval indicates a more precise estimate. For a given sample size,
increased confidence can be attained only by widening the interval. A high confidence level
alone means very little, but a high confidence level for a small interval is impressive, indicating
that the random error in the sample estimate is low.‖ (1 Kaye & Freedman, Modern Scientific
Evidence: The Law and Science of Expert Testimony (2010–2011) § 6:34, pp. 361–363, fns.
omitted.)

28

to be lower than that of the class as a whole. He then discussed the survey data obtained

by Krosnick, which showed the average overtime hours of the surveyed class members to

be 14.391 hours per week, with a margin of error of plus or minus 2.121 hours per week

using a 95 percent confidence interval. He concluded Krosnick‘s study provided

corroborating evidence that the RWG estimate was accurate.

On August 8, 2008, the trial court ruled the survey would not be admissible as

affirmative evidence in Phase II of the trial, but left open the possibility that the survey

could come in for rebuttal purposes to impeach evidence that might be offered by USB.

F. USB’s Second Motion for Decertification

On August 22, 2008, USB filed its second motion to decertify the class. USB

argued decertification was mandated because the evidence adduced at trial demonstrated

individualized issues predominated as to liability and restitution. USB also claimed the

evidence showed class treatment was unmanageable and not superior to individualized

proceedings. USB reiterated its reliance on the 70-plus sworn declarations from non-

RWG BBO‘s attesting that they spent the majority of their work time outside bank

property. The motion was denied.

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