In Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. __, No. 14-1146 (Mar. 22, 2016), the Supreme Court held that the US District Court for the Northern District of Iowa did not err in allowing plaintiffs to rely on representative and statistical evidence to establish classwide liability, holding that class members can rely on such evidence as long as each could have relied on the evidence to establish liability had he or she brought an individual action. In this case, the Court explained, a special evidentiary rule for FLSA actions would have enabled the plaintiffs to rely individually on the statistical study because Tyson had violated its statutory duty to maintain proper records. Of note, Tyson carefully distinguishes Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), cautioning that "Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability."
Because the damages award had not yet been disbursed, the Court declined to consider Tyson's argument that the plaintiffs had failed to demonstrate a mechanism that would ensure that uninjured class members would not recover damages. Significantly, however, the Court noted in dicta that the problem "appears to be one of petitioner's own making" because Tyson had objected to the plaintiffs' suggested bifurcation of the liability and damages phases of the trial.
Although Tyson represents a victory for class-action plaintiffs, it does not permit unfettered use of statistical evidence to prove classwide liability and outlines a path forward for defendants to challenge the use of such evidence in class actions. The Court highlighted the "great importance" of preventing recovery by uninjured class members, suggesting that a strong argument can be made for overturning class certifications in cases where broadly defined classes mean liability determinations may not eliminate all uninjured parties. At the same time, Tyson's reference to invited error underscores that defendants must timely object to attempts by plaintiffs to use procedures that might otherwise permit uninjured persons to recover from prospective damages awards.