This past Supreme Court Term included several closely-watched cases. One of the most studied was Tyson Foods v. Bouaphakeo, in which the Court identified at least one area of class action litigation where using statistical evidence instead of plaintiff-specific evidence might be allowed when determining class certification.

Since the Court issued its opinion, defendants have–as one would expect–worked hard to limit the Court’s holding to its specific facts. (Not necessarily a difficult task, since the Court itself tied its result closely to the statute underlying the Tyson Foods plaintiffs’ claims.) And, of course, plaintiffs and plaintiff-specific scholars have worked to expand the reading of the case as far as they can.

University of Texas Professor Robert Bone’s forthcoming article Tyson Foods and the Future of Statistical Adjudication is an excellent example of this second school of thought. The title, like with many articles, is something of a misnomer. It doesn’t describe what the future of statistical adjudication is likely to look like; instead it advocates for a particular reading of Tyson Foods that would allow for greater usage of the tactic.

Professor Bone is a longtime fan of what he terms “statistical adjudication,” which, as he describes it, is a method that:

treats each case as an average case and substitutes the sample average (or other statistic) for a case-specific result based on individualized fact-finding. For example, when a judge adjudicates a large aggregation of cases by taking a random sample and averaging the sample case verdicts, the judge does not use the sample average as evidence from which to infer specific causation, contributory fault, damages, and so on for each plaintiff. That would be using the sample average as statistical evidence. Rather, the judge uses the sample average instead of individual facts to generate an average outcome for each plaintiff or an aggregate award for the class as a whole.

The aim is not so much to get the right result on the facts of an individual case as it is to get a good enough result for all cases collectively so that the substantive law achieves its deterrence goals and litigants are treated fairly and justly in relation to one another.

Professor Bone concedes that the Supreme Court does not really treat Tyson Foods as a case of “statistical adjudication,” but rather as a case about the appropriate use of “statistical evidence.” (He defines statistical evidence as “the use of statistics to generate evidence from which a jury or judge can infer the legally relevant facts for each individual case.”) However, he believes that a “critical reading” of the case demonstrates that it is better understood as creating rules for “statistical adjudication.”

He also argues that the use of statistics in Tyson Foods is not linked to either the text of the FLSA or the lack of individualized evidence, but could in fact be used in any case that involved a statute with “substantive law policies.” His reading is exceptionally broad, and unlikely to survive scrutiny in most courts as made, but it does provide a hint of the arguments plaintiffs may use to extend Tyson Foods past its particular facts.

Professor Bone also understands that many will have objections to the “averaging” of results he proposes, but he believes that these objections are antiquated and short-sighted, resting primarily in what he terms “dignity-based” understandings of litigants’ rights. (This is not a new view for him.)

So what can defense counsel take from this article? There are actually several important points:

  • Plaintiffs are likely to try extending Tyson Foods to non-FLSA cases, and cases where individualized evidence was not lacking. If they do so, they will rely on a version of Professor Bone’s argument here.
  • “Trial by Formula” continues to be a favored tactic for those trying to “smooth out” the various individualized variations that make classes uncertifiable.
  • And finally, arguments for this kind of statistical short-cut to certification rely heavily on the concept of deterrence as a justification for class certification. Defendants would be well-advised to let deterrence-based arguments pass by unchallenged.