Duran v. U.S. Bank Nat'l Ass'n, 2012 WL 366590 (Cal. Ct. App. 2012)

U.S. Bank ("USB") appealed a $15 million judgment that was entered against it following a bifurcated bench trial. The plaintiffs are 260 current and former business banking officers who claimed they were misclassified by USB as outside sales personnel exempt from overtime pay. The Court of Appeal agreed with USB that the trial management plan prevented it from defending against the individual claims of over 90 percent of the class because the plan erroneously relied on a representative sampling of 21 of the 260 class members. Citing the Supreme Court's opinion in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Court stated that "While Wal-Mart is not dispositive of our case, we agree with the reasoning that underlies the court's view that representative sampling may not be used to prevent employers from asserting individualized affirmative defenses in cases where they are entitled to do so." See also Muldrow v. Surrex Solutions Corp., 202 Cal. App. 4th 1232 (2012) (trial court properly determined that recruiters were exempt commissioned employees).