In Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (No. 14-1146), the U.S. Supreme Court upheld a class verdict despite the claim that certification was improper.  Tyson argued that the district court should not have certified a class because members of the putative class incurred different damages and some might not have been damaged at all.  In Tyson, employees alleged they should have received overtime pay for the time they spent “donning and doffing” their protective gear.  The district court ruled for plaintiffs, and calculated a remedy based on an analysis of the time spent by sampled employees.  The employer asserted that the amount of time actually spent donning and doffing varied among the class members, and thus “person-specific inquiries into individual work time” predominated over common questions.  The Supreme Court rejected that argument and affirmed, recognizing that a representative sample may be the only practicable way to prove such a case.  The Court acknowledged that although it would be improper to rely on a representative sample in a class case if such a sample could not be used to prove an individual case; in such an instance, the class action device would violate the Rules Enabling Act’s instruction that the use of a class device cannot abridge “any substantive right.”  The Supreme Court held, however, that it was permissible to prove a case based upon representative employees, particularly where the employer violate its duty to keep records and the employees had no other way to establish their claims.  The Supreme Court clarified that it had not held in Wal-Mart Stores v. Dukes, 564 U.S. 338 (2011), that a sample is impermissible to establish classwide liability.  Instead, it held only that the sample in that case was insufficient because the Walmart plaintiffs were not similarly situated.  It also distinguished Walmart, observing that unlike inTyson, had the Walmart employees brought individual suits, there would have been no role for representative evidence.