Expectations were high in the class action world for the Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo. At first blush, however, Tyson seems to be neither the test case nor the blockbuster decision that many expected it to be, leaving important questions about predominance of class issues and individual proof of injury for another day.
The Court’s deferral of these questions can be chalked up, at least in part, to the nature of the case itself, in which employees at a pork processing plant in Iowa claimed they had not received overtime pay for time spent “donning and doffing” protective equipment for their jobs, in violation of the federal Fair Labor Standards Act of 1938 (FLSA) and Iowa state law. After trial, a jury returned a $2.9 million lump-sum verdict for the plaintiff classes.
The ensuing appeal challenged both class certification and the plaintiffs’ use of “representative evidence” at trial. In the absence of any company records of actual donning and doffing time, the plaintiffs offered statistical averages of such time for employees in the “fabrication” and “kill” departments of the plant. The plaintiffs’ expert (who notably was not challenged under Daubert in the district court) derived his averages from a sample set of employee timesheets and videotaped observations of actual donning, doffing, and walking by plant employees. A split panel of the U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s certification decisions and the jury’s verdict, and the case moved to the Supreme Court, where dozens of amicus curiae briefs swelled the case’s docket.
The decision, with Justice Kennedy writing for a six-Justice majority, appeared to belie recent speculation about the effect of Justice Scalia’s passing on the case’s outcome. The late Justice’s jurisprudence, in particular his 2013 majority opinion in Comcast Corp. v. Behrend, found voice in Justice Thomas’s dissenting opinion, which was joined only by Justice Alito.
The majority’s opinion resisted the call to take a hard-and-fast stance on the plaintiffs’ use of representative evidence (emphasis added):
[P]etitioner and various of its amici maintain that the Court should announce a broad rule against the use in class actions of what the parties call representative evidence. A categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes—be it a class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.
Doubling down on the point, the Court emphasized that its 2011 decision in Wal-Mart Stores, Inc. v. Dukes “does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.”
The upshot: statistical evidence is no more or less permissible in the class context than in an individual action, and its utility in establishing the predominance of class issues, and later proving class-wide liability and damages, will depend on the facts, circumstances, and causes of action in each individual case.
But what about uninjured class members—employees whose hours, even including the average donning and doffing time for their department, did not exceed 40 hours per week, and who therefore were owed no overtime? Wouldn’t statistical averaging sweep them in even though they might not deserve any compensation?
The jury’s lump-sum verdict, which awarded plaintiffs less than their full measure of damages (calculated by their experts to be approximately $6.7 million), provides no answers to these questions, but instead poses additional, equally thorny questions. To whom, exactly, did the jury intend to award damages, and to what extent? How did the jury interpret and employ the plaintiffs’ representative evidence, if at all, in reaching their damages figure? And how should the district court allocate the $2.9 million award to ensure that only those class members who suffered injury are compensated?
Acknowledging that “the question whether uninjured class members may recover is one of great importance,” the Court nevertheless determined that it was not “a question yet fairly presented by this case, because the damages award has not yet been disbursed, nor does the record indicate how it will be disbursed.” Consequently, the Court remanded the case to the district court to make those determinations.
Chief Justice Roberts’s concurrence, joined in part by Justice Alito, provided precisely the gloss on the majority opinion that some expected to be the majority opinion in this case. Framing the issue of uninjured class members in terms of the judiciary’s Constitutional role, his concurrence urged that “Article III does not give federal courts the power to order relief to any uninjured plaintiff, class action or not.” Anticipating the difficulties facing the district court on remand, the Chief Justice emphasized that “if there is no way to ensure that the jury’s damages award goes only to injured class members, that award cannot stand.”
The message? Stay tuned to see how the district court parses—and parcels—out the jury’s damages award and, in the meantime, don’t expect any “broad and categorical rules governing the use of representative and statistical evidence in class actions.”