A recent Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo may make it easier for plaintiffs in class action suits to use representative sampling and statistical models to establish liability to a "class" of parties allegedly injured by a defendant.
The Tyson class action suit was brought by employees of a meat-processing plant who claimed that their employer was not paying overtime for the time required for the employees to put on and take off ("don and doff") their protective gear at the beginning and end of their work shifts. The employer did not maintain records of the time employees spent donning and doffing protective gear, so at trial the employees introduced expert testimony that used representative sampling to determine the average time that employees spent donning and doffing protective gear. Based on the expert testimony, the jury delivered a verdict in favor of the plaintiffs.
The Supreme Court upheld the use of statistical sampling, holding that the methodology used by the plaintiffs' expert was an appropriate way to fill the "evidentiary gap" created by the employer's failure to maintain records of its employees' donning and doffing time. The Court reasoned that because the statistical sampling introduced by the plaintiffs could have been used by individual plaintiffs to establish liability had they filed individual claims, it was equally permissible to use the sampling to establish class-wide liability. While the Court's holding was helpful for the Tyson plaintiffs, the Court took care to narrow the scope of its ruling. The Court expressly declined to "establish general rules governing the use of statistical evidence" in class action litigation, and instead held that the appropriate use of statistical sampling "will depend on the purpose for which the evidence is being introduced and on the elements of the underlying cause of action." The Court also made clear that its decision does not overturn its 2011 decision in in Wal-Mart Stores v. Dukes, in which the court rejected the plaintiffs' use of statistical sampling to attempt to establish gender discrimination among a large number of employees who were not subject to common employment policies. Unlike the Wal-Mart plaintiffs, the Tyson plaintiffs were subject to similar donning and doffing policies, making the use of statistical sampling appropriate in this case.
The Court remanded to the District Court the question of how to allocate the damages award across the class—including, potentially, to uninjured class members who are owed no overtime pay for their donning and doffing time. Chief Justice Roberts, concurring in the decision, devotes a significant portion of his opinion casting doubt as to whether the District Court can feasibly allocate the damages award to only injured class members. While the majority opinion leaves open the question of whether a damages allocation that awards uninjured class members would be permissible, the Chief Justice argues in his concurrence that a damages award that compensated uninjured class members would be unconstitutional, as Article III permits federal courts only to provide relief to claimants who have suffered actual harm.