In a long-running employment class action in California, a California Court of Appeal recently addressed once again the use of surveys of class members. The case was the subject of a prior California Supreme Court decision (see my June 2014 blog post), which provided guidance on the use of statistical evidence by plaintiffs to attempt to prove their claims on the merits in class actions, the need for a trial plan, and the need to allow the defendant to prove its affirmative defenses.

After remand, the trial court ultimately denied class certification on various grounds, including the unreliability of, and discrepancies between, two surveys conducted by plaintiffs’ counsel. In Duran v. U.S. Bank Nat’l Ass’n, 2018 Cal. App. LEXIS 36 (Cal. Ct. App. Jan. 17, 2018), the California Court of Appeal recently affirmed. What I found most interesting was how the court evaluated whether a trial of the affirmative defenses would be manageable:

In the portion of the court’s decision about which plaintiffs complain, the court observed that if “the vast majority of the class sample would credibly testify that most of their time was spent inside the office and the confidence interval was relatively narrow, then one might infer that the number of witnesses the defense would call on its affirmative defenses would be relatively small. But if the results relied upon [by an expert witness] are as unreliable as suggested by a comparison of the 2008 and 2015 surveys, then the court cannot take much comfort in the notion that Plaintiffs’ trial plan adequately manages the affirmative defenses. As with the issue of restitution, the affirmative defenses would appear to require a host of ‘mini trials.’”

What is the best approach for the defendant to take in this scenario? Strategically, a defendant may not want to reveal too much of its trial strategy at the class certification stage. But it may be necessary in order to present the best possible defense to class certification. A court should not need to guess how many witnesses the defense would call on its affirmative defenses based upon the reliability of a survey. The defendant can instead demonstrate how it will prove its affirmative defenses and why that will make a class trial unmanageable.

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