Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 147 deterrence of overbuilding, Rule 23(b)(3) cannot authorize treating subscribers within the Philadelphia cluster as members of a single class.”740 The Supreme Court reasoned that it was not clear whether every plaintiff was necessarily damaged by each of the four alleged theories of antitrust impact, and it was distinctly possible that some plaintiffs in the Philadelphia DMA were damaged by one type of conduct, while others were injured by another. As such, the Supreme Court held that the damages model the plaintiffs presented failed to show that individual damages calculations would not overwhelm questions common to the class. For the customers to prevail, they would have had to measure damages attributable only to the overbuilder theory of competition. In this case, it was not clear which damages resulted from which type of antitrust impact, leading to uncertainty about whether damages could be measured class wide, rather than on an individual basis.” According to the majority, adopting the Third Circuit’s position would render any method of measurement acceptable, “no matter how arbitrary,” and would reduce Rule 23(b)(3)'s predominance requirement to a nullity.741 With its decision in Comcast, the Supreme Court left no doubt that district courts must conduct a “rigorous analysis” at the class certification stage to ensure that the requirements of Rule 23 are satisfied, even if doing so would require an inquiry into the merits of the plaintiffs’ claims. The Supreme Court also clarified that the method of proving class-wide damages must be tied to the theory of liability on which plaintiffs will be proceeding at trial. In the wage and hour context, this ruling provides further ammunition to employers in opposing class certification. Many wage and hour cases require significant individualized proof of damages—for example, determining whether and why each class member worked off the clock. After Dukes and Comcast, it is clear that plaintiffs’ counsel cannot simply offer a few examples and ask the court to just assume that all other employees had identical experiences. G. The California Supreme Court Enforces Due Process in Duran v. U.S. Bank In 2014, the California Supreme Court issued its much-anticipated opinion in Duran v. U.S. Bank,742 vacating a $15 million judgment in a wage and hour class action on the ground that the judgment resulted from a flawed statistical sampling methodology. While the Supreme Court did not foreclose the possibility of using statistical sampling to establish class-wide liability, the Court’s unanimous opinion makes clear that (1) a trial plan that proposes statistical sampling must be presented to the trial court before class certification, (2) the proposed sampling must be statistically reliable, and (3) the trial plan must not deprive the defendant of its due process right to present affirmative defenses. Duran is significant because it recognizes the due process concerns raised by the use of representative evidence, and it requires trial courts to meaningfully address those concerns early in litigation. These points provide welcome ammunition for employers in opposing class certification. 1. Lower Court Proceedings Plaintiffs filed a class action alleging that their employer, U.S. Bank, misclassified its Business Banking Officers (“BBOs”) as exempt outside sales employees. After certification, the parties submitted their respective trial plans, crafted with the aid of their experts. Over U.S. Bank’s objections, the trial court adopted its own trial plan, under 740 Id. at 1435. 741 Id. at 1433. 742 59 Cal. 4th 1 (2014).
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