The Supreme Court addressed class actions again this term, following a series of opinions that reigned in class action abuses. See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011); Comcast v. Behrend, 133 S. Ct. 1426 (2013). In Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), the Court held that the plaintiffs could rely on representative sampling evidence to fill an “evidentiary gap” and establish classwide liability – at least where such evidence was of the type that might be useable in an individual claim.
Plaintiffs brought a Fair Labor Standards Act claim alleging that their employer deprived them of overtime pay for time spent “donning and doffing” protective equipment at a meat-processing facility. To establish damages, the plaintiffs submitted expert statistical evidence that extrapolated the average time spent donning and doffing based on a sample of the 3,344-member class. The district court certified the class, and the plaintiffs recovered $2.9 million in compensatory damages. The Eighth Circuit affirmed the district court’s decision, and the Supreme Court granted certiorari.
The Court declined to apply a bright-line rule barring “sampling” evidence. Justice Kennedy, writing for the majority, reasoned that the permissibility of representative evidence turns not on the form of the proceeding (i.e., an individual versus class action) but on its reliability in proving the elements of a claim. The Court emphasized that in many cases a representative sample is the only practical means to present the relevant data and establish liability. In reaching this result, the court emphasized that Tyson Foods had “fail[ed] to keep adequate records” so the plaintiffs needed the representative evidence to fill the evidentiary gap. The Court also explained that in this case, the proof would have been equally useable had the class members’ claims been brought as individual lawsuits. That is, if an individual had brought a case on his or her own behalf seeking damages, he or she could have used the same expert evidence to make out a damages claim in the absence of actual time records.
Although the Tyson Foods plaintiffs prevailed, the decision suggests that plaintiffs may still face multiple bars to using representative proof to establish their claims. To begin with, the proof must still be reliable in the conventional sense so as to survive a Daubert challenge. But the opinion also suggests that under the Rules Enabling Act, plaintiffs must establish that representative evidence would be equally admissible in an individual action. In other words, plaintiffs may not use the class action device to prove their claims through means that would not be competent in individual actions. Companies should pay close attention to how lower courts treat representative evidence post-Tyson Foods.