There is an old maxim in appellate law that higher courts typically look for ways to decide cases on the narrowest of grounds rather than go out of their way to make sweeping changes in the law. That rule certainly seemed in place at the Supreme Court on Tuesday. In the oral argument in the much anticipated Tyson Foods v. Bouaphakeo case, the Court focused not on the broad class action issues that many had hoped, but upon the more narrow issue of representative proof in wage and hour cases. Such proof was validated by the Court some 69 years ago in Anderson v. Mount Clements Pottery Co. 328 U.S. 680 (1946).
Tyson had hoped to convince the Court that its case was akin to the situation in Wal-Mart v. Dukes 131 S. Ct. 2541 (2011) in that it was confronted with a “trial by formula” damage methodology in a class action certified over its employment practices. This approach was seemingly rejected by the Court in Wal-Mart. And shortly thereafter, the Court decided Comcast Corporation v. Behrend, 133 S.Ct. 1426 (2013), in which it added that class certification was not appropriate without careful consideration and analysis of whether individual issues – specifically damage questions – would overwhelm the common issues. According to the Court in Comcast, the damages model offered by the plaintiff must attribute the wrongful conduct of the defendant to the damage suffered, and the damages must be ascertainable.
Tyson was much anticipated since the certification requirements contemplated in Wal-Mart and in Comcast have been eroded at the lower courts through decisions that certified classes that included plaintiffs with no injuries or different damages, or where statistical sampling was used to supply average damages. The Supreme Court’s refusal to grant cert in those cases left the clarity of Wal-Mart and Comcast in doubt. The granting of cert in Tyson was widely viewed as the Court’s inclination to rein in lower courts. (See our previous post “Dow Chemical, Tyson Foods, Wal-Mart and Allstate Insurance: Will SCOTUS Clean Up its Class Action Mess?”)
Tyson Foods has asked the Court to review an 8th Circuit decision that affirmed a $6 million judgment to a class of workers alleging that Tyson did not fully pay them for time spent putting on and taking off protective equipment. Here the evidence showed that protective equipment and times varied across the class; the 8th Circuit allowed plaintiffs to model the time it took the "average" employee to dress and walk to and from his work station, ignoring there was no evidence offered to show that most – or even any class members – fit this model. Tyson argued that this approach was contrary to the Wal-Mart and Comcast decisions. In particular, Tyson cited the Court’s holding that a statistical sampling method of establishing damages and causation that deprives a defendant of its opportunity to contest each individual situation would preclude certification.
At oral argument, the justices didn’t really bring up its Wal-Mart decision. Justice Kagan instead stated she didn’t think the Tyson case was about Rule 23 at all, but that it really was about whether the evidence presented in the case met the Mount Clemons standard. Mount Clemons was a case about overtime pay law and was not a class action. While perhaps this was not a surprise from Justice Kagan, Justice Kennedy and Breyer also jumped in and focused on Mount Clemons as well. Breyer even read from Mount Clemons and pointedly asked Tyson’s lawyer: “What’s wrong with that?” Tyson’s argument that Mount Clemens was only about the how to establish the scope of damages, and not the kind of proof needed to establish certification, seemed to have been lost on the Court – this despite the Wal-Mart and Comcast rulings, in which the direction of the Court seemed so clear. Justices Alito and Roberts, again not surprisingly, were concerned about the differences among the class members, suggesting that they were concerned about the impact of Wal-Mart and Comcast.
The focus of the Court on Mount Clemens is troubling since that case had absolutely nothing to do with class certification. Indeed, in Mount Clemons, the critical issue was whether an employee could establish damages where the employer had not kept adequate wage and hour records. In that situation, the Mount Clemons court held that an “employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” If so, according to Mount Clemons, the proof burden then shifts to the employer to negate the reasonableness of the inference.
Be that as it may, how to meet an evidentiary burden in a single case has very little to do with the Rule 23 predominance requirements. The fact that a single employee can establish damage doesn’t suggest anything about the uniformity of damages and damage situations across the putative class. The fact the Supreme Court didn’t focus on this latter issue strongly suggests that class certification will continue to be fluid and expanding.