United States: Duran Is A Sleeping Giant On The Future Of Due Process Issues In Trial Management In California

Richard T. Williams is a Partner and Stacey H. Wang an Associate both in our Los Angeles office.

The bifurcation of trials and the use of statistical sampling to evaluate liability and damages is also included.

Not only is Duran v. U.S. Bank Nat'l Assoc., -- P.3d -- 2014, 2014 WL 2219042 (Cal. May 29, 2014) "an exceedingly rare beast" (id. at *1) as a wage and hour misclassification class action that proceeded through trial to verdict, but it is also very rare for a high court to find that a bifurcated trial plan violated due process.1 As the California Supreme Court noted, Duran "highlights difficult questions about how individual issues can be successfully managed in a complex class action." Id. at *10. The tensions between promoting innovative techniques in trial management versus due process rights; the need for plaintiffs to prove predominance of common issues in class actions versus the defendant's right to litigate affirmative defenses; and the "rigor" required of trial courts in examining the use of statistics as a means of common proof while managing individual issues, were all discussed but not resolved by the California Supreme Court in Duran.  Instead, the broad conceptual instructions in Duran are only the starting point upon which the contours of due process will be tested and shaped in future complex tort and class action litigation. 

Background in Duran: The trial court certified a class and devised its own trial management plan, rejecting both parties' competing proposals and competing experts

The substantive legal issue in Duran was whether the plaintiffs, business banking officers  employed by defendant U.S. Bank National Association (USB), were misclassified as exempt employees such that USB owed overtime pay. Under Labor Code Section 1771, the exemption from overtime pay applies to employees who spend more than 50 percent of the workday engaged in sales activities outside of the office. USB uniformly treated all business banking officers as exempt employees. The trial court certified a class of 260 business banking officer plaintiffs.

Plaintiff's proposed plan

After certification, the parties proposed competing trial management plans, each supported by competing expert testimony. The plaintiffs proposed the use of surveys and random sampling in which "the parties would identify all tasks performed" and "classify which were sales-related." Id. at *2. The amount of time class members "typically spent" on activities outside of the office would be assessed through a survey. Then, the experts would design a random sample of surveyed class members to proceed through discovery and a liability phase trial, followed by a damages trial to determine aggregate classwide damages. After the damages trial, the parties would agree on a claims procedure to distribute damages to individual class members. Id. USB opposed plaintiffs' plan on the basis that the survey would not yield a truly representative sample due to selection bias, i.e., those who were properly classified as exempt would have no interest in participating in the trial or the survey. Id. at **2-3.

Defendant's proposed plan

USB proposed to divide the class into 20 or 30 groups and have special masters conduct individual evidentiary hearings on liability and damages. Plaintiffs opposed USB's plan on the basis that USB did not have a due process right to assert its affirmative defenses against each individual class member. Id. at *2.

The trial court's plan

The trial court rejected both plans and devised its own plan, under which twenty class member names would be drawn out of "the proverbial hat" by the court clerk, in addition to the two named plaintiffs, to form a "representative witness group." Id. at *3. The court then conducted a two-phase trial. In phase one, only those from the representative witness group would testify. In phase two, the parties would present statistical evidence to extrapolate the phase one evidence to the entire class. Id. After the group was selected, the trial court allowed certain representative witnesses to opt out.

On appeal, the Court of Appeal found that USB's due process rights were violated by the trial court's sampling and bifurcation plan, and decertified the class. The Court of Appeal held that the trial plan's reliance on representative sampling denied USB its due process right to litigate affirmative defenses. Id. at *9. 

The California Supreme Court affirms the Court of Appeal's due process decision and remands class certification to the trial court

The California Supreme Court affirmed the Court of Appeal's judgment that the trial plan violated USB's due process rights, and remanded the case to the trial court for a new trial on both liability and restitution, with instructions that it may entertain a new class certification motion. Id. at *29.

The Court's critique of the trial plan

The Court criticized the trial court for ignoring the individual issues instead of managing them. Id. at *16.  In doing so, the trial court sacrificed substantive law for procedure and deprived the defense its due process right to litigate relevant defenses. The court's plan failed to properly follow basic statistics concepts such as using a sufficient sample size to account for variability and avoiding selection bias in the sample selection process. The 43.3% margin of error on the findings was intolerably high.  Id. at **22-26.  Moreover, the trial court's bifurcation of the trial improperly reframed the individual questions going to the "fact of liability" as questions about the "extent of liability," which avoided allowing USB to present the individual issues during the liability trial.  Id. at **19, 21.

The Court instructed that the trial court has an "obligation to consider the manageability of individual issues in certifying a class action." Id. *10."In particular...a class action trial management plan must permit the litigation of relevant affirmative defenses, even when these defenses turn on individual questions." Id2 

The trial court's obligations at the class certification stage

Importantly, the Court emphasized that"at the certification stage," the trial court should consider "whether a trial plan has been developed to address [the] use [of statistical evidence]." Id. at *15 (emphasis in original). "Rather than accepting assurances that a statistical plan will eventually be developed, trial courts would be well advised to obtain such a plan before deciding to certify a class action." Id. "In the misclassification context, as in other types of cases, trial courts deciding whether to certify a class must consider not just whether common questions exist, but also whether it will be feasible to try the case as a class action." Id. at *11. "Class certification is appropriate only if these individual questions can be managed with an appropriate trial plan." Id. "If the court makes a reasoned, informed decision about manageability at the certification stage, the litigants can plan accordingly and the court will have less need to intervene later to control the proceedings." Id. at *13 (emphasis added).

Justice Liu's separate concurring opinion outlines guidance to trial courts trying to be "procedurally innovative" in managing class actions: the "threshold" task for the trial court is to determine whether the substantive law is amenable to class treatment.  Id. at *29. The trial court must also find that the individual issues, including the defendant's affirmative defenses, "can be managed fairly and efficiently." Id. at *12, 33.  He explained that there are two ways that a trial court should consider individual issues: (1) individual issues should inform the design of the sampling plan and (2) even where a plan has been settled on, "the defendant is entitled to raise individual issues that challenge the result of the plan as implemented." Id. at *34. Procedurally, he suggested that the trial court has an "obligation" to consider innovative tools "proposed by a party to certify a manageable class," but that such tools must permit a defendant "to present their opposition, and to raise certain affirmative defenses," using devices such as bifurcation, subclasses, questionnaires, and individualized hearings. Id. at *35.

Limitations on the design of a sampling plan

While the use of statistics and sampling is still available as a method in class actions to obtain relevant evidence, the California Supreme Court placed significant limitations on its design. 

  • Statistical evidence is not proof of predominance of common questions, it should be used to demonstrate how individual issues may be managed: The plan cannot "entirely substitute" statistical methods for common proof and may not use statistical sampling "to manufacture predominate common issues where the factual record indicates none exist." Id. at *15. "There must be some glue that binds class members together apart from statistical evidence." Id. This means that a statistical sampling plan does not, in an of itself, satisfy the predominance requirement; the trial court must still require that the plaintiffs prove the class action element that common questions of fact and law predominate over individual issues. The sampling plan is only used to "manage individual issues" after it is found that sufficient common questions exist to support class certification. Id.
  • Management of the individual issues, including defendant's relevant affirmative defenses, must be "baked into" the plan: Statistical proof cannot be used to bar the presentation of valid defenses to either liability or damages, even if it means that the defense has to be adjudicated on an individual level.  Id. at *28. However, the Court also observed that no case has found a due process right for a defendant to litigate its affirmative defense against each individual class member; rather, the defendant must have an "opportunity to present proof of affirmative defenses within whatever method the court and parties fashion to try these issues." Id. at **20, 28.   
  • The plan must be statistically sound and the margin of error acceptable. The Court faulted the Duran trial court's plan for violating Statistics 101: having too small of a sample size, failing to account for selection bias, and for an extremely high margin of error. Specifically, the Court questioned whether a margin of error approaching 50% can ever be reliable for use in litigation. Id. at *26.   

Potential implications:

  • Duran is only the beginning of what will likely be a lengthy judicial discussion on the boundaries of due process in complex case management, both in and outside the class context.  
  • Plaintiffs in complex class cases will no doubt creatively apply statistical and sampling techniques in an effort to convince the trial court to certify a class.  Duran obligates the trial court to take into account a defendant's affirmative defenses and due process rights, and once common issues have been tried, a defendant must still have the "opportunity to contest each individual claim on any ground not resolved in the trial of common issues."  Id. at *13. However, Duran leaves the trial court with no further instruction on how to implement these obligations other than to be innovative. Thus, defense counsel will need to actively analyze the due process issues -- to be as resourceful as plaintiffs and courts are innovative -- and be ready to focus expert analysis on the statistical deficiencies and other potential due process pitfalls.
  • The Duran Court cited almost exclusively to state court authorities, which seems to signify a reluctance to follow federal cases on class procedures.  A number of California Court of Appeal cases have instructed that courts may look to federal authority on class procedure matters.  See, e.g. Cellphone Termination Fee Cases, 186 Cal.App.4th 1380, 1392, fn.18 (2010). With the U.S. Supreme Court's decision last year in Comcast Corp. v. Behrend (2013) -- U.S. -- , 133 S.Ct.1426, 1435 (2013) now requiring putative class plaintiffs to propose a damages methodology at the class certification stage in federal court as part of demonstrating the "predominance" requirement in Rule 23(b)(3) of the Federal Rule of Civil Procedure, it seems Duran presented a timely opportunity for the California Supreme Court to explicitly approve the reasoning in Comcast for state cases.  However, the Court seems to be approaching this area with a delicate hand.  Duran instructs that trial courts "should" consider at the certification stage the use of sampling to manage individual issues.  Duran, 2014 WL 2219042 at *15. The Court also instructed that "[c]lass certification is appropriate only if these individual questions can be managed with an appropriate trial plan" and that the court must make a "reasoned, informed decision" about manageability "at the certification stage." Id. at **11, 13.  
  • Based on this, Duran may end up indirectly and independently requiring trial courts to do effectively what Comcast expressly requires of class plaintiffs in federal district courts. That is, a trial court must implement the "sufficient rigor" and reach the "reasoned" and "informed" decision at the class certification stage. While Duran could have been more forceful, logic compels that a trial court cannot truly satisfy itself that individual issues may be effectively managed unless the plaintiffs present a methodology at class certification for the trial court to evaluate.  Delaying these decisions beyond class certification only means that the trial court may be faced with a decertification motion once the plan is finally unveiled. Thus, from a case management standpoint, it makes practical sense to have these issues determined at the class certification stage rather than to split into three proceedings (i.e., certification, trial plan, decertification) what should be a single inquiry. 


1 Few high courts have addressed this issue.  See, e.g., State of West Virginia ex rel. J.C. v. Mazzone, No. 14-0207, 2014 WL 2440032 (W. Va. May 27, 2014) (finding a violation of due process in the Mass Litigation Panel's interpretation of an administrative rule to substantively divide mass litigation panel cases into 25 civil actions); In re Flood Litigation Coal River Watershed,  222 W. Va. 574, 585-86 (2008) (reversing appellate court's finding that trial management plan in mass tort case violated due process: "A creative, innovative trial management plan developed by a trial court which is designed to achieve an orderly, reasonably swift and efficient disposition of mass liability cases will be approved so long as the plan does not tress upon the procedural due process rights of the parties.")

2 However, the Court also stated that affirmative defenses does not mean that a defendant has a right to cross-examine each class member; rather, the parties and the court are to engage in a process which provides the defendant with the ability to challenge liability.  Id. *17. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.