150 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com litigate its affirmative defenses. And, in cases involving questions unique to each class member, statistical evidence cannot create commonality where it does not otherwise exist. Nor can liability be extrapolated where commonality is absent. Duran is also significant because it requires trial courts to consider—at the class certification stage—whether a workable trial plan involving statistical evidence can be developed. When opposing class certification, therefore, employers should be prepared to challenge the class counsel’s proposed trial plan, or their failure to identify one, based on the principles set forth in Duran.751 Finally, Duran is particularly useful to employers defending misclassification cases, as it affirms that such claims—unless they turn on standardized job duties or policies that compel employees to uniformly spend their time on nonexempt work—have “the potential to raise numerous individual questions that may be difficult, or even impossible to litigate on a class-wide basis.” H. Easing of Class Certification Standards Post-Brinker Although Dukes and Duran provided employers with significant ammunition to fight class certification, other legal developments during this same timeframe eroded those gains by easing other certification requirements. In 2012, the only way to determine a reasonable estimate of the employees’ uncompensated time (relying on Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)). Using the expert’s calculations, the jury returned a verdict for the class in the amount of $2.9 million in unpaid wages. Upon appeal to the U.S. Supreme Court, Justice Anthony Kennedy wrote for a 6-2 majority affirming the judgment of liability. The Supreme Court held that the expert’s methodology was sufficient to estimate unpaid overtime under the particular facts of the case. Namely, Tyson did not keep time records for time spent donning and doffing, and the class had to fill this evidentiary gap with some form of representative evidence. The Supreme Court reasoned that, had the class members proceeded with individual lawsuits, each employee could have relied on the expert’s study to establish the hours worked that were not recorded by Tyson, and thus Tyson’s due process right to defend against individual claims would not be abridged by use of the expert analysis in a class action. The Supreme Court distinguished Tyson Foods from Dukes by the ability of the class in Tyson Foods to rely on the same statistical evidence had they pursued individual civil actions. In Dukes, the Court had ruled the class members were not similarly situated, so none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. In contrast, the Tyson Foods plaintiffs worked in the same facility, did similar work, and were paid under the same policy; they could accordingly have used the expert’s study in a series of individual civil actions to prove out their case, and thus the expert’s analysis was also appropriate for a class action. The Supreme Court declined to provide a categorical rule approving the use of representative or statistical evidence in class actions. Rather, the use of samples and other representative evidence as a means to establish classwide liability will depend on the purpose for which it is introduced and the specific underlying claims. Thus, the appropriateness of such statistical evidence will depend on the particular facts of each case, as well as the methodology used to prepare it. The Tyson Foods decision is narrow and will have a limited effect on employers’ defense of wage and hour class action lawsuits. Notably, Tyson did not bring a Daubert motion contesting the methodology used by the expert in reaching his conclusions. Nor did Tyson offer a rebuttal expert who could show that the amount of time required to don and doff on average was actually lower than what the plaintiff’s expert found. On appeal, the Supreme Court accepted the trial court’s determination that the expert’s study was admissible and could be reliably used by a jury to determine a class-wide recovery. Accordingly, a key lesson from Tyson Foods is that defendants should challenge at the trial court level any sampling methodologies proposed by plaintiffs. 751 Highlighting this point was Duran v. U.S. Bank Nat'l Ass'n, 19 Cal. App. 5th 630, 650 (2018) (“Duran II”), which affirmed the denial of class certification because plaintiffs sought to rely on unreliable scientific data. Duran II held that the “trial court did not abuse its discretion in concluding that the wide discrepancy between the 2015 and 2008 survey results demonstrated that the 2015 survey was unreliable, and served as tangible evidence that the survey results were tainted by bias. Accordingly, substantial evidence supports the court's finding that the survey data was unreliable as evidence of uniformity in how BBOs spent their time, and unreliable as statistical support for selecting a representative witness group to testify as to liability or restitution without causing the inquiry to devolve into a multiplicity of individual mini trials.”
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