Following its grant of certiorari in Spokeo v. Robbins earlier this year, the United States Supreme Court has granted cert in yet another class action for the upcoming Fall Term that may have wide-ranging implications in the class action arena, particularly the wage-and-hour litigation.

In Tyson Foods, Inc. v. Bouaphakeo, the Eighth Circuit recently affirmed the district court’s decision to certify a class of hourly employees at a Tyson meat-processing facility in Iowa.  The plaintiffs alleged Tyson failed to provide FLSA overtime compensation for donning and doffing (putting on and taking off) protective gear before their shift formally started.  Although Tyson argued that there were significant factual differences between the workers in the putative class, the district court certified the case based on the plaintiffs’ proposed statistical analysis calculating the “average” time spent donning and doffing the protective equipment, notwithstanding any employee’s actual individualized and personal circumstances.  The case was tried, ultimately resulting in a $5.8 million verdict for the workers.  Despite the fact the appellate court appeared to acknowledge the existence of factual differences between class members, the court affirmed both the verdict and the underlying decision to certify, observing that “unlike Dukes, Tyson had a specific company policy— [] for donning, doffing, and walking—that applied to all class members … [and] class members worked at the same plant and used similar equipment.”  Slip op. at 6.

Long-time Class Action practitioners should not be surprised that the Supreme Court granted certiorari here considering the Court’s recent admonition that statistical evidence cannot be used to sweep individual factual differences between class members through a “Trial by Formula,” see Wal-Mart v. Dukes, 131 S. Ct. at 2561, and that a plaintiff must offer “a theory of liability that is . . . capable of classwide proof.”  See Comcast Corp. v. Behrend, 133 S. Ct. at 1434.  Furthermore, similar to Spokeo, the Court will also look to address Article III standing in this context, as the evidence developed during discovery indicated that there were potentially a large number of employees did not have any uncompensated donning and doffing time, meaning they were not “injured” at all.  Accordingly, the parties will brief two issues:

(1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.