United States: Tyson Foods, Inc. V. Bouaphakeo: The Supreme Court Declines To Rule Out Representative Evidence In Class Actions

In Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. __ (2016), the Supreme Court considered whether a case could proceed as a class action under Rule 23(b)(3) when the plaintiffs relied upon statistical, representative evidence to show both the existence of injury and damages. On Tuesday, in a 6-2 decision, the Supreme Court held that the plaintiffs could rely on statistical evidence to determine classwide liability, but did not reach the question of class-wide damages. In so doing, the Court declined to promulgate a bright-line rule about the use of representative evidence. Instead, whether representative or statistical evidence "may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and the underlying cause of action."

In Tyson Foods, a group of workers brought a proposed Rule 23(b)(3) class action against their employer for unpaid overtime in violation of Iowa state wage-and-hour law as well as a putative collective action under the FLSA. The presence of the FLSA claim alongside the state law claim substantially influenced the Court's legal reasoning regarding statistical proof of class-wide liability. The workers claimed Tyson did not compensate them for the total time they spent "donning" and "doffing" protective and sanitary equipment at Tyson's facility. The plaintiffs argued that Tyson violated the FLSA by not providing overtime pay to those employees whose donning and doffing time, when added to their regular hours, exceeded 40 hours in a given week.

The key issue the Court addressed in Tyson Foods was whether the plaintiffs could use statistical evidence to prove that, inclusive of donning and doffing time, Tyson workers were working over 40 hours per week without overtime pay. The plaintiffs' expert found that workers spent on average either 18 or 21 minutes per shift on donning and doffing activities, depending on their department. The plaintiffs added these average times to their individual timesheets to determine the amount of overtime they were owed, if any. After the trial court allowed the case to proceed as a class action, the case went to trial and a jury awarded $2.9 million in damages to all class members. The trial court added another $2.9 million in liquidated damages for a total judgment of $5.8 million. The Eighth Circuit affirmed both awards.

Tyson asserted that the plaintiffs' evidence was not sufficient to support a class action, relying upon Wal-Mart v. Dukes, 564 U.S. 338 (2011). Tyson argued that the times spent donning and doffing varied significantly among the individual plaintiffs – even within departments, each worker wore different combinations of gear, requiring different amounts of time to don and doff. Tyson argued that these factual differences undermined any "common contention" whose resolution would be capable of determining the "validity of each one of the claims in one stroke," demonstrated a lack of predominance under Rule 23(b)(3), and resulted in an impermissible "trial by formula" that would prevent Tyson from raising defenses against individual plaintiffs.

The Court, however, disagreed. First, the Court noted that the "parties agree" that there was a common question – whether donning and doffing protective gear is compensable under the FLSA. Second, the Court stated that the use of statistical evidence, and the inferences therefrom, eliminated the individual inquiries that could undermine predominance in this case. In so doing, the Court distinguished Dukes by explaining that the 1.5 million members of the putative class in that case had no proof that they were subject to a common policy of discrimination and were therefore not similarly situated. Absent evidence that employees were similarly situated, representative evidence was not probative as to the circumstances of any individual plaintiff; using such evidence would therefore violate the Rules Enabling Act by giving a class member rights in a class proceeding that they would not have in an individual proceeding. Thus, representative evidence could not be used in Dukes as a means of "overcoming this absence of a common policy." But the Court concluded that the Tyson Foods plaintiffs were similarly situated, as they worked in the same facility, did similar work, and were paid under the same policy. Thus, the Court explained, Tyson Foods was not an impermissible "trial by formula" because the representative evidence at issue could be used to establish liability in both an individual and class action.

The Court also noted that, absent the statistical evidence, there was no alternative means for employees to establish the hours worked because Tyson did not keep time records regarding donning and doffing. The Court stated that when an employer fails to fulfill its "statutory duty" to maintain proper timekeeping records, plaintiffs may prove their claims through reasonable inference, a powerful tool for statistical proof that has historical roots in FLSA claims and that the Court thus far has limited to FLSA claims. Otherwise, the public policy of the FLSA of not creating an "impossible hurdle" for the employee to prove his claims would be frustrated. Here, the plaintiffs' evidence was sufficient for the jury to make a just and reasonable inference as to each individual employee – the plaintiffs worked in the same facility, did similar work, and were paid under the same policy. The court also noted (twice) that Tyson Foods did not challenge the validity of the studies under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) or attempt to discredit those studies.

The Court also rejected as premature Tyson's challenge that the jury's award would provide compensation to class members who did not suffer any injury because the damages award had not yet been distributed, and the record did not indicate how it would be distributed. Although the Supreme Court affirmed Tyson's right to challenge an award to uninjured plaintiffs, any challenge would have to come after the award's disbursal to class members.

In affirming the appeals court, the Supreme Court rejected calls for a broad rule either prohibiting or allowing representative evidence in class actions. Instead, the Supreme Court found that the permissibility of evidence does not depend on the "form a proceeding takes," and whether representative evidence can be used to prove class-wide liability will "depend on the purpose for which the evidence is being introduced and on the elements of the underlying cause of action."

*Note: BakerHostetler LLP was counsel for the Cato Institute as amicus curiae in Tyson Foods, Inc. v. Bouaphakeo.

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