Trahan v. U.S. Bank National Association

Filing 130

NOTICE OF QUESTIONS FOR HEARING ON MOTION TO APPROVE CONTACT LETTER AND SURVEY INSTRUMENT. Signed by Judge JEFFREY S. WHITE on 7/24/14. (jjoS, COURT STAFF) (Filed on 7/24/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JERRY TRAHAN,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 09-03111 JSW

v.

NOTICE OF QUESTIONS FOR
HEARING ON MOTION TO
APPROVE CONTACT LETTER
AND SURVEY INSTRUMENT

U.S. BANK NATIONAL ASSOCIATION,
Defendant.
/

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

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NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON

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JULY 25, 2014, AT 9:00 A.M.:

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The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

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reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

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cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

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authorities reasonably in advance of the hearing and to make copies available at the hearing. If

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the parties submit such additional authorities, they are ORDERED to submit the citations to the

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authorities only, with reference to pin cites and without argument or additional briefing. Cf.

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N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to

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explain their reliance on such authority. The Court suggests that associates or of counsel

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attorneys who are

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working on this case be permitted to address some or all of the Court’s questions contained

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herein.

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1.

Defendant has consistently maintained that a survey should not be used in this case, and

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it has not been willing to participate in the process of designing a survey. Although

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Plaintiff’s expert has expressed a willingness to cooperate with Defendant’s expert,

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Plaintiff also asserts that Defendant waived its objections to the details of the survey or

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the use of a survey in general both by refusing to participate in the process and by the

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fact that it has discussed, analyzed, and criticized the specifics of the proposed

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instrument.
If the Court required the parties to submit a stipulation, that would thereafter become an

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For the Northern District of California

United States District Court

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Order of the Court, that if Defendant participates in the creation of a survey instrument,

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it does so on the condition that its participation should not be construed as a waiver of

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any previously stated objections, would Defendant be willing to reconsider its position,

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so that it may at least have some input on the process?

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2.

The parties have submitted supplemental briefs addressing the impact of Duran v. U.S.

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Bank, N.A., 59 Cal. 4th 1 (2014) on this case. The California Supreme Court did not

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categorically rule out reliance on statistical sampling to establish liability in mis-

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classification case, although it noted that this was an “open” and “hotly contested”

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question in both state and federal courts. Duran, 59 Cal. 4th at 37-40. The Duran court

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also stated that “[i]f a defense depends on questions individual to each class member, the

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statistical model must be designed to accommodate these case-specific deviations.” Id.

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at 40.

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a.

Assuming for the sake of argument that the Court concludes that the state court’s

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trial plan remains a feasible plan to manage the case on a classwide basis, can the

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survey instrument be revised to account for any “case specific deviations” that

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are not already included therein? For example, Defendant argues that the survey

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does not adequately address the administrative and commissioned sales

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exemptions? For the sake of argument, what additional questions does

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Defendant contend should be included to account for these exemptions?

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b.

How does Plaintiff propose that Defendant “be given a chance to impeach the

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[statistical] model or otherwise show its liability is reduced because some

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plaintiffs were properly classified as exempt?” See Duran, 59 Cal. 4th at 38.

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c.

Defendant argues that, if the Court approves the use of the survey instrument, it

(See Defendant’s Supplemental Brief at 3:14-16 (citing Duran, 59 Cal. 4th at 43

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(“non-response bias can occur if a sample is chosen randomly from a group

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containing only survey respondents”).) How does Plaintiff respond to this

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For the Northern District of California

would be relying on non-random data, in part because of “non-response” bias.

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United States District Court

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argument?

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3.

The Court is concerned that, as drafted, the “first contact” letter is misleading as to its

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purpose and to the complete confidentiality of the responses.

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a.

Instead of advising recipients that they are part of a “research study,” would the

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parties be amenable to advising the recipients that they are members of the

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Trahan class and that the Court has permitted the parties to conduct this survey

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to assist the Court during the litigation. To the extent the proposed survey needs

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to be adjusted as well, would the parties be amenable to that change?

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b.

With respect to confidentiality, would the parties be amenable to revising the text

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to advise recipients that, at this stage, their responses will be anonymous, that

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Court has reserved the right to permit the parties to file motions to obtain the

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information as the litigation proceeds, but that their identities and responses will

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not be revealed either to Plaintiff or Defendant without a Court order. To the

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extent the proposed survey needs to be adjusted as well, would the parties be

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amenable to that change?

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4.

In order to test for bias, the survey instrument asks whether the recipients are aware of

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the lawsuit and its purposes. Did Dr. Krosnik account for the fact that the recipients

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already received notice of the class action?
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5.

Would any of Defendant’s concerns be remedied if the Court appointed an expert to

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create and administer the survey? Alternatively, would the parties be amenable to the

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appointment of a special master in this case?

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6.

Without repeating arguments set forth in their briefs and without summing up their

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positions, are there any other issues the parties wish to address regarding the motion to

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approve the survey instrument?

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IT IS SO ORDERED.

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Dated: July 24, 2014
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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