Case: Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 2016 WL 1092414 (U.S. Mar. 22, 2016)
The U.S. Supreme Court has declined to place further limits on representative evidence admissible in class action cases or to address the issue of whether class action plaintiffs must demonstrate that uninjured class members will not receive damages. On March 22, 2016, the Court decided the second of three class action cases before the Court this term, Tyson Foods, Inc. v. Bouaphakeo et. al., a class action brought by employees of a pork processing plant in Iowa, seeking to be paid for time spent “donning and doffing” protective gear needed for their work. In this case, the Court declined to adopt the “categorical exclusion” of all representative evidence in class actions. The Court held that the admissibility of representative or statistical evidence turns not on whether the case is an individual suit or a class action but rather simply on its reliability and relevance under the Federal Rules of Evidence.
The class of employees had sought to admit a statistical analysis by an industrial relations expert based on hundreds of videotaped observations because Tyson had failed to keep records of the time its employees spent donning and doffing. The Court focused on this lack of record-keeping and relied upon a 1946 Supreme Court decision, Anderson v. Mt. Clemens, which allowed representative evidence in a Fair Labor Standards Act collective action when the defendants failed to keep records of their employees’ time. The Court found that in Tyson Foods, as in Mt. Clemens, the employees “sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records,” and that just as that evidence would likely have been admissible in the employees’ individual actions, it was in Tyson Foods a permissible means of proving the injury to the class. As such, the district court did not err in certifying the class based in part on the representative evidence.
Also significantly, the Court limited its 2011 holding in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), holding that Wal-Mart “does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.” The Court distinguished the two cases and held that while in Wal-Mart, an employment discrimination class action, the experiences of the employees “bore little relationship to one another, in this case each employee worked in the same facility, did similar work, and was paid under the same policy” and under those circumstances, “the experiences of a subset of employees can be probative as to the experiences of all of them.”
Perhaps just as important as what the Court did hold in Tyson Foods, is what it did not. The Court declined to reach the second issue raised by Tyson Foods in its petition for certiorari — whether a class may be certified if it contains members who were not injured and have no right to damages. This was an extreme position which, if adopted by the Court, could have posed major obstacles to class certification, particularly with respect to ascertainability under Rule 23. (For example, how could the members of a class be ascertained if that class could only include individuals who purchased a food product which caused minor food poisoning and actually suffered such food poisoning, rather than including all individuals who purchased that food item during certain identifiable dates?) In its briefing to the Court, however, Tyson Foods conceded that the courts’ lack of authority to compensate uninjured persons does not mean that a class action cannot be certified in the absence of proof that all members were injured. Instead, Tyson Foods argued that plaintiffs must demonstrate that there is some mechanism to identify the uninjured class members prior to judgment and ensure that uninjured members do not contribute to the size of the award or recover damages. The Court, however, declined to reach even that issue, finding it was premature because the jury’s damages award had not yet been disbursed to the class.
Tyson Foods has garnered significant attention in the press as a plaintiff-friendly class action decision by the Supreme Court, rare in recent years. Commentators in the defense bar have sought to frame the decision as a narrow one which focused on wage and hour law and the specific facts of the case, or even as a positive decision for class action defendants. While Tyson Foods may not have reached any broad conclusions limiting or governing future class actions, it may prove quite significant for just that reason. In refusing to adopt a bright-line rule excluding representative evidence in class actions and in distinguishing and limiting Wal-Mart, the Court opened the door a bit wider to class action plaintiffs, giving them an opportunity to argue the admissibility of such evidence on a case by case basis under a traditional evidentiary framework. And in declining to address the issue of uninjured class members at the certification stage, the Court refused to create a very substantial barrier to class certification.
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