In recent years, the Supreme Court has helped to rein in class action abuses with opinions reinforcing that class certification must be a rigorous process. See Dukes v. Wal-Mart, 564 U.S. ___ (2011); Comcast v. Behrend, 569 U.S. __ (2013). The Supreme Court recently granted certiorari in another class action case that will be widely watched. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146. This time, the Court will address two important questions: use of statistical evidence as a basis for liability and damages calculations and whether a class can be certified despite the fact that some class members may not have suffered any injury at all.

In Tyson, plaintiffs brought a Fair Labor Standards Act case claiming they were illegally deprived of overtime pay for time spent "donning and doffing" protective equipment at an Iowa meat processing plant. The class was certified and ultimately tried to a plaintiffs' verdict of almost US$6 million. The key evidence Plaintiffs submitted to show damages were expert statistical models that extrapolated the average time spent donning and doffing based on a sample of class members. The class recovery was then to be distributed pro rata among the class despite the fact that different class members used different equipment taking different amounts of time to take on and off. The Eighth Circuit affirmed, with one Judge dissenting.

Tyson argued in its petition for certiorari that it was improper for the District Court to use statistics from a sample of class members in light of the Supreme Court's holding in Dukes, which prohibited such "trial by formula" and similarly held that statistical evidence was insufficient to overcome individualized differences among class members. The case will accordingly give the Supreme Court an opportunity to interpret and apply Dukes outside of the employment discrimination context. In addition, the Supreme Court took up the separate but important question of whether a class can be certified even though it includes class members who may not have suffered any injury at all. There is a longstanding circuit split on that question, and a decision in the defendant's favor could have wide implications. Businesses facing class action lawsuits should keep a close eye on the Supreme Court's decision in Tyson.