Misclassification case could end statistical evidence in class actions
Court says procedure is "fatally flawed" and inhibits due process
March 26, 2012 at 08:00 PM
22 minute read
While working as a business banking officer for U.S. Bank National Association, Chad Penza made $5 million to $10 million in sales every quarter, making him one of the most successful salespeople in the company. But it wasn't easy to get there. On weekdays, Penza regularly arrived at the office by 6 a.m. and didn't leave until 6:30 or 7 p.m. He also worked most Saturdays and Sundays, calling prospects from 7 a.m. until noon. Penza routinely clocked more than 60 hours of work a week.
In late 2001, Penza was identified as a member of a class of 260 business banking officers (BBOs) whom U.S. Bank classified as outside sales personnel exempt from overtime laws. In Duran v. U.S. Bank, the plaintiffs allege that Penza and other BBOs should have been classified as nonexempt employees who were entitled to earn overtime pay.
What ensued was a hard-fought war of attrition that lasted the better part of the next decade, with both sides spending hundreds of thousands of dollars in attorneys' fees and expert witness costs. At each stage of the litigation, U.S. Bank protested trial procedures that hampered its defense, including the trial judge's decision to use a sample of 21 class members to determine the damages sustained on a class-wide basis.
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