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Duran v. United States Bank

Duran v. United States Bank

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Categories:Types, Business/Law
Published by: www.BaileyDaily.com on Feb 07, 2012
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On January 9, 2007, USB filed a trial management conference statement. USB

reported that Steven Dias, one of the 20 randomly selected class members, had since

opted out of the lawsuit. USB asserted that any member of the 20-person group who

chose to opt out after receiving the second opt-out notice should be required to provide

deposition and trial testimony in order to preserve the representative nature of his or her

testimony and to ensure statistical reliability of the extrapolation process.

On January 29, 2007, USB filed its answer to the TAC.

On February 6, 2007, USB filed a motion regarding the status of the 20-person

random witness group (RWG) members. USB asked the trial court to allow four RWG

members, who had by now opted out of the action, the opportunity to opt back in. USB

claimed the witnesses had decided to opt out because they felt they were properly

classified as exempt employees, and because plaintiffs‘ counsel allegedly encouraged

them to avoid involvement in the lawsuit.20

USB argued the representative nature of the

RWG was compromised because witnesses whose testimony would have supported its

affirmative defense were now omitted from the representative group. A declaration

provided by USB‘s statistical expert Phillip Gorman noted that while 4 of the 20 RWG

members had elected to opt out, only 5 of the remaining 250 absent class members had

done so. Thus, a much smaller percentage of non-RWG plaintiffs had opted out (2

percent), relative to the RWG, which saw a 20 percent opt-out rate. Gorman stated that

removing these 4 witnesses would undermine the accuracy of any extrapolation process.

In opposition to USB‘s motion, plaintiffs submitted a declaration from Drogin,

who opined that substituting the alternate RWG members for the four opt-out plaintiffs

would be statistically acceptable as there was ―no reason to infer that the sample is not


In their declarations, two of these former plaintiffs, Sean MacClelland and Michael Lewis,
claimed they were unaware they had been selected for the RWG when they opted out. Lewis
stated plaintiffs‘ counsel called him several times to encourage him to opt out of the case.
MacClelland reported plaintiffs‘ counsel left intimidating messages on his answering machine.

In opposition, plaintiffs submitted a letter dated November 2, 2006, in which both witnesses

were informed they had been randomly selected to ―have your case tried in this case.‖


representative, or that there is any bias in the sample.‖ He remarkably concluded that ―as

long as the set of persons selected to testify at trial includes those in the original random

selection made by the court, and is restricted to those in the class, the testifying group

will be a random sample of the class. Under these conditions, the results determined by

the court for those testifying can be reliably projected to the class as a whole.‖ He
deemed Gorman‘s statements to the contrary to be both incorrect and irrelevant.

On February 16, 2007, the trial court denied, without prejudice, USB‘s motion to

allow Michael Lewis and Sean MacClelland to opt back into the lawsuit, noting that the

issue of whether these witnesses would be allowed to testify should be addressed at trial.

On March 1, 2007, plaintiffs filed a motion for class certification of the meal and

rest break claims. They also filed a motion to compel further responses to special

interrogatories, requests for production of documents, and requests for admissions.

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