Trahan v. U.S. Bank National Association

Filing 129

ORDER RESOLVING OBJECTIONS TO HILDRETH DECLARATION. Signed by Judge Jeffrey S. White on July 23, 2014. (Attachments: # 1 Appendix)(jswlc3, COURT STAFF) (Filed on 7/23/2014)

Case3:09-cv-03111-JSW Document116-2 Filed06/12/14 Page136 of 156

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Case3:09-cv-03111-JSW Document116-2 Filed06/12/14 Page137 of 156

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were misclassified based on their
job duties and where they spent
their time.

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because it is based in improper
assumptions. Hyatt v. Sierra
Boat Co. (1978) 79 Cal.App.3d
325,337; Sacramento & San
Joaquin Drainage Dist. Ex rei.
State Reclamation Bd. v. Reed
(1963) 215 Cal.App.2d 60, 68.
Hildreth misstates the purpose
of the survey, which is to
measure variation.

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Hildreth Decl., ~ 6.
A trial plan based on random
sampling in this action cannot
estimate the proportion of the
class that was misclassified, if
any, and cannot determine
whether individual class members
were misclassified.

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Hildreth Decl., ~ 7.
The degree of variation in the
elements to be measured may be
such, especially in small
populations, that sampling is not
an efficient way to proceed.
Hildreth Decl., ~ 8.
Let us suppose that the true
(unknown) population value is 5,
but using the sample you estimate
7.7, with a 40 percent (relative to
the estimated mean) margin of
error at a 95 percent confidence
interval.
Hildreth Decl., ~ 8. Hearing

Conslusory.
Impermissible legal opinion.
Legal expert witnesses must be
qualified as such. Cal. Evid.
Code §§ 720, 801. The proper
interpretation of a statute,
regulation or other law is an
issue of law for the comi to
detennine and expert
testimony on such matters is
therefore inadmissible. See
e.g., Summers v. A.L. Gilbert
Co. (1999) 69 Cal.AppAth
1155, 1178 [whether a duty
exists]; West v. Sundown Little
League of Stockton, Inc.
(2002) 96 Cal.AppAth 351
[whether defendant
significantly enhanced risk of
plaintiff s injury].
Conclusory.

Sustained: X
Overruled:

Sustained:
Overruled: X

Incomplete hypothetical,
irrelevant.

Sustained:
Overruled:

Impermissible legal opinion,

X

Sustained: X

100 DRAKES LANDING ROAD

Sl1ITE275
GREENBRAE, CA 94904

[phone]
WWW•.\VYNNELAWFJRM.COM

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OBJECTIONS TO THE DECLARATION OF ANDREW HILDRETH SUBMITTED IN OPPOSITION TO PLAINTIFF'S
MOTION TO APPROVE SURVEY
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100 DRAKES

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testimony from a randomly
selected subset of the population
may be efficient at trial, but as the
example above demonstrates, it is
hardly representative or accurate
of all class members, and
certainly affects the aggregate
potential liability of the
defendant.
Hildreth Decl., ~ 10.
... then the Court, if it relied upon
the survey to select a sample of
testifying class members at trial,
would select the wrong number of
testifying witnesses for the
sample and potentially arrive at
the wrong conclusion.
Hildreth Decl., ~ 12.
The process of designing the
questionnaire, and the
questionnaire itself, is flawed.
Not only is information absent
from plaintiffs as to the process of
designing the questionnaire, the
questionnaire will produce biased
responses and lead to the wrong
conclusions from the data.
Hildreth Decl., ~ 14.
Dr. Krosnick has obviously
decided ...
Hildreth Decl., ~ 14.
... to (1) measure the outside sales
exemption with no proposal to
address the administrative and
commissioned sales exemptions;
Hildreth Decl., ~ 15.
Dr. Krosnick appears to think that
the question on whether an
individual BBO was correctly
classified as exempt simply
revolves around estimating the
number of hours spent working
inside or outside of US Bank
premIses.
Hildreth Decl., ~ 16.
Administrative exemption. I have

conclusory, speculation, and
incomplete hypothetical.

Lacks foundation, conclusory,
and based on speculation.

Overruled:

Sustained:

X

Overruled:

Conclusory and based on
speculation.

Lacks foundation.

Sustained: X
Overruled:

Sustained: X
Overruled:

Impermissible legal opinion.

Sustained:

X

Overruled:

Impermissible legal opinion.

Sustained: X
Overruled:

Irrelevant. The survey is
intended to measure variation,

Sustained:

X

Overruled:

$UITE275

GREENBRAE, CA 94904

[phone]
WWW.WY1'>);,ELAWHRt\-IC01'.1

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OBJECTIONS TO THE DECLARATION OF ANDREW HILDRETH SUBMITTED IN OPPOSITION TO PLAINTIFF'S
MOTION TO APPROVE SURVEY
RG09454803

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been advised by defense counsel
that if the Court is to determine
whether BBOs are properly
classified as exempt under the
administrative exemption, this
entails a consideration of the type
of duties performed as a BBO that
qualifies for the administrative
exemption whether or not those
duties are performed inside u.s.
Bank property. A second
requirement is that the number of
overtime hours be estimated.
From the set of estimates from the
survey, the Court will then decide
how many class members to call
to testify at trial.
Hildreth Decl., ~ 17.
... and even if related to sales
activities may still constitute
administratively exempt work.
Hildreth Decl., ~ 18.
Not only is "work" not defined
sufficiently, but also the question
of work (as defined) does not
measure liability ...
Hildreth Decl., ~ 18.
This is not a sufficient measure to
establish liability in this matter. I
am informed by counsel for
u.S. Bank that liability needs to
be established on a work-week by
work-week basis for each and
every week the individual worked
at U.S. Bank as a BBO.
Hildreth Decl., ~ 19.
The problem for Dr. Krosnick is
that first the liability issue needs
to be measured on a work-week
by work-week
basis.
Hildreth Decl., ~ 19.
Asking respondents to form some
average in their head in the space
of a few seconds, or even
minutes, is inviting inaccuracy

not exemptions.

Impermissible legal opinion.

Sustained: X
Overruled:

Assumes facts not in evidence.
The testimony misstates the
purposes of the survey. The
survey is not intended to
measure liability.
Assume facts not in evidence.
The testimony misstates the
purposes of the survey. The
survey is not intended to
measure liability.

Assumes facts not in evidence.
The testimony misstates the
purposes of the survey. The
survey is not intended to
measure liability.
Lacks foundation, conclusory
and based on speculation.

X

Sustained:
Overruled:

Sustained: X
Overruled:

Sustained:

X

Overruled:

Sustained:
Overruled: X

100 DRAKES LANDI:-l'G ROAD

SPJTE275
GREENBRAE, CA 94904

(415)461·6400

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OBJECTIONS TO THE DECLARATION OF ANDREW HILDRETH SUBMITTED IN OPPOSITION TO PLAINTIFF'S
MOTION TO APPROVE SURVEY
RG09454803

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into the results.
Hildreth Decl., ~ 19.
If liability is to be determined
accurately on a work-week by
work-week basis ...

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WYNNE LAW FIRM

Hildreth Decl., ~ 19.
The average has no meaning for
the definition ofliability if
liability is to be established on a
workweek by work-week basis.
Hildreth Decl., ~ 20.
... and arrive at an average for
use in a legal setting where
accuracy is not only required, it
can affect the defendant's
aggregate liability.
Hildreth Decl., ~ 21.
Further, the declarations (signed
under oath) gathered by u.s.
Bank in opposing class
certification (which I've
previously reviewed) indicate that
the nature of the BBO position at
u.s. Bank may make it highly
unlikely that the same procedures
will be followed from one work
week to another (let alone from
one year to another) and that the
usual and unusual occur at near
random intervals throughout their
work tenure. Some weeks they
would have high sales, some
weeks low sales. Some weeks
may require more hours to meet
outside clients, some weeks
would see more hours inside a
branch processing client loan
applications. The survey does not
test for this potential variation
that may impact not only a class
member's work hours but also the
percentage of time spent outside
the Bank or conducting other
exempt work. What Dr.
Krosnick's assumption (in

Assumes facts not in evidence.
The testimony misstates the
purposes of the survey. The
survey is not intended to
measure liability.
Assumes facts not in evidence.
The testimony misstates the
purposes of the survey. The
survey is not intended to
measure liability.
Assumes facts not in evidence.
The testimony misstates the
purposes ofthe survey. The
survey is not intended to
measure liability.
Impennissible legal opinion.
Improper subject for expeli
opinion. Conclusory, assumes
facts not in evidence and calls
for speculation.

X
Sustained: - - - Overruled:- - - -

Sustained: -X - Overruled:- - - -

Sustained: - - - X
Overruled:- - - -

Sustained: - X - Overruled: - - - -

100 DRAKES LAl'\D]l'\(J ROAD

SUITE 275
GREENBRAE, CA 949()4

[phone]
WWW.\WNNELAWFlIl.M.C0/'o.1

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OBJECTIONS TO THE DECLARATION OF ANDREW HILDRETH SUBMITTED IN OPPOSITION TO PLAINTIFF'S
MOTION TO APPROVE SURVEY
RG09454803

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WYNNE LAW FIRM

paragraph 28) does illustrate is
Plaintiffs view of the BBO world
under which the survey
questionnaire has been drafted.
Hildreth Decl., ~ 22.
Further to the measurement
issues, the survey data will be
biased in a number of ways. The
direction and magnitude of that
bias to a large extent is unknown.
Hence any measurement or
estimated statistics (such as an
estimate and its associated margin
of error) from the data will
equally be biased and
inconsistent. Statistics from such
data should not be relied upon.
Hildreth Decl., ~ 25.
The design of the survey further
emphasizes that plaintiff wishes
to use the individual's self-serving
bias to his favor by essentially
bribing the respondents to take
part in the survey. While survey
method does allow respondents to
be compensated by way of a
small token as a "thank you" for
their time, $25 for a 20 minute
interview is tantamount to a bribe.
Hildreth Decl., ~ 26.
However, even if such monies
were not promised for survey
response up front, self-serving
bias would also operate through
the potential for financial gain
from a decision in
plaintiff s favor in the lawsuit.
The problem for surveys that deal
with individuals who stand to
gain from the survey results if
they are in their favor, is that
responses are altered to suit their
desired outcome. Asking
individuals about the hours they
worked, where they are either
aware of the lawsuit, or are being

Lacks foundation, conc1usory
and based on speculation.

Lacks foundation, conc1usory
and based on speculation.

Lacks foundation, conc1usory
and based on speculation.

Sustained:
Overruled:

Sustained:

X

X

Overruled:

Sustained:
Overruled:

X

100 DRAKES LANDING ROAD

Sll[TE275
GREENBRAE, CA 94904

(41S)461-6400
WWW.\WNNELA\VFIRM.cn:-.1

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OBJECTIONS TO THE DECLARATION OF ANDREW HILDRETH SUBMITTED IN OPPOSITION TO PLAINTIFF'S
MOTION TO APPROVE SURVEY
RG09454803

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WYNNE LAW FIRM

asked about their effort as an
employee at u.s. Bank, will selfserve and provide an inflated
response.
Hildreth Decl., ~ 27.
Where the respondent is also the
actual subject of the survey itself,
then a self-serving bias to some
degree will be present, although
the magnitude of that bias
will remain unknown.
Hildreth Decl., ~ 28.
This is a strange term for a survey
that is required to collect precise
economic measurements on time
spent in various activities.
Hildreth Decl., ~ 28, ftnt 6.
Confidentiality for respondents in
this instance is simply a way to
hide individual responses
from being examined and crosschecked.
Hildreth Decl., ~ 31.
Asking respondents to merely
reconfinn their own answers will
not remove the uncertainties.
Hildreth Decl., ~ 31.
The type of reconfirming exercise
(given in Question 18 of the
survey) that Dr. Krosnick
suggests is not sufficient to
remove recall errors.
Hildreth Decl., ~ 31.
Further, should the respondents
decide to change their answers,
does this invalidate the first set
of responses, or the second, or all
the responses that the respondents
gave? Obviously the respondent
has had second thoughts.
Hildreth Decl., ~ 34.
Presumably, given the nature of
the question, it is not the case that
every u.S. Bank premises has a
IIUS Bank ll logo on it.
Hildreth Decl., ~ 35.

Assumes facts not in evidence.

Sustained:
Overruled:

Lacks foundation, conclusory
and based on speculation.

Lacks foundation, conclusory
and based on speculation.

Lacks foundation, conclusory
and based on speculation.

Lacks foundation, conclusory
and based on speculation.

Incomplete hypothetical,
assumes facts not in evidence,
lacks foundation, conclusory
and based on speculation.

Sustained:

X

X

OvelTUled:

Sustained:

X

Overruled:

Sustained:

X

Overruled:
Sustained:

X

Overruled:

Sustained:
Overruled:

Lacks foundation; assumes
facts not in evidence,
conclusory and based on
speculation.

Overruled:

Lacks foundation, assumes

X

Sustained:

Sustained:

X

100 DRt\KES LANDING ROAD

Sl11TE275
GREENBRI\E, CA 94904
[phone]
WWW.\VYNNELAWFIMICOM

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OBJECTIONS TO THE DECLARATION OF ANDREW HILDRETH SUBMITTED IN OPPOSITION TO PLAINTIFF'S
MOTION TO APPROVE SURVEY
RG09454803

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By asking a BBO about his or her
drive time last, and after
suggesting work time is
comprised of three components,
the value of drive time will underestimated or depressed.
Hildreth Decl., ~ 35.
I understand from Defense
counsel that, depending on
circumstances, driving to and
from home, and/or driving
between two U.S. Bank locations
may constitute outside sales
activities.
Hildreth Decl., ~ 38.
Because the tests suggested by
Dr. Krosnick do not have a
definite outcome, but an ttambiguous outcome, the tests
cannot detect bias, nor correct for
bias.
Hildreth Decl., ~ 38.
First, because of the self serving
nature of respondents in this
survey ...
Hildreth Decl., ~ 39.
Independent of the fact that the
data from a survey such as this is
unilaterally biased, the tests
suggested by Dr. Krosnick cannot
detect bias either.
Hildreth Decl., ~ 43.
However, this matter before the
Court is not an eyewitness case as
far as I am aware.

facts not in evidence,
conclusory and based on
speculation.

X

Overruled:

Impermissible legal opinion.
Improper subject for this
expert's alleged opinion.

Conclusory, lacks foundation.

Sustained:
Overruled:

X

Sustained:
Oven-uled: X

Sustained:

Lacks foundation; assumes
facts not in evidence,
conclusory and based on
speculation.
Lacks foundation, assumes
facts not in evidence.

X

Overruled:
Sustained:
Overruled: X

Sustained:

Impermissible legal opinion.
Improper subject for expert
..
opmlOn.

X

Overruled:

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Dated: September 18, 2013

WYNNE LAW FIRM

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Edward J. Wyline

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WYNNE LAW FIRM
100 DRAKES LANDING ROAD

SUITE 275
GREENBRAE, CA 94904
[phone]
W\V\V.WYNNELAWFIRM.COM

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OBJECTIONS TO THE DECLARATION OF ANDREW HILDRETH SUBMITTED IN OPPOSITION TO PLAINTIFF'S
MOTION TO APPROVE SURVEY
RG09454803