In March, the Supreme Court decided Tyson Foods v. Bouaphakeo, a much watched case involving the propriety of class certification.
Since the landmark decision in Wal-Mart v. Dukes, lower courts have found ways of restricting the applicability of Dukes and Comcast v. Behrend in ways to find certification despite the apparent suggestion in Dukes that certification was limited and the notion of trial by formula was discredited. (See our October 2014 post.) Many commentators, including me, thought that Tyson would provide the opportunity for the Court to restrain these lower court interpretations. (See our blog posts of June 2015 and November 2015.)
Unfortunately, the Court did not take this opportunity, and according to some, actually retreated from Dukes. Others have opined that the Tyson decision, the first class action decision since the death of Justice Scalia, reflects a shift in the Court’s view of class actions. Prior to his death on Feb. 13, 2016, Justice Scalia authored the 2011 Wal-Mart decision, in which the Court seemed to adopt a restrictive view of class actions and rejected the “trial by formula” approach. Wal-Mart was a 5-4 decision. And in 2013, Justice Scalia authored the Comcast decision, where the Court (also by a 5-4 majority) reversed class certification in large part because the plaintiffs’ damage model opened the door to too many individual issues.
Tyson, the first class action case decided by the post-Scalia Court, is certainly not a landmark decision limiting class certification. But does Tyson signal a retreat and shift? A close study of the facts suggests that Tyson is a limited holding and that it was in fact a spoliation of evidence case. And the fact that it was decided by a 6-2 majority does not suggest an ideological split.
First the facts: like Dukes, Tyson involves a wage and hour dispute. The substantive question was whether Tyson had to track the time spent by employees in donning and doffing protective clothing to determine whether an employee should receive overtime compensation. The plaintiffs alleged that the donning and doffing time was “integral and indispensable” to their work that should be counted in the overtime compensation calculation.
The rub: Tyson did not keep track of the time spent by its employees in the donning and doffing activity. Under section 211c of the Fair Labor Standards Act (FLSA), employers are required to “make, keep, and preserve…records of the persons employed by him and of the wages, hours and other conditions and practices of employment.”
Because these records did not exist, plaintiffs relied on an expert who made 744 video tape observations of the time spent by employees in the donning and doffing activities and then averaged the observed times to come up with an estimate of time spent in these activities.
Tyson objected to the use of this evidence, claiming it was not necessarily representative of the time actually spent. Thus, according to Tyson, some employees would get credit for spending more time donning and doffing than they actually spent and some employees could wind up getting credit for overtime purposes, when in fact the actual times would not entitle them to any overtime payments. According to Tyson, the potential actual variance of times spent precluded a finding of predominance. Based on Wal-Mart, Tyson also contended that use of the representative sample precluded its ability to litigate its defenses to individual claims since plaintiff would no longer be required to prove their personal injury.
Justice Kennedy, writing for the majority, disagreed. While Justice Kennedy noted that a central inquiry was whether the inference that the putative class members donned and doffed for the same average time was reasonable, he instead started from this premise:
“As a result of Tyson’s failure to keep records of donning and doffing time, however, the employees were forced to rely on what the parties describe as “representative evidence.”
From here, Kennedy then focused his inquiry on whether an individual plaintiff could get to a jury by presenting the representative evidence. He cited the Supreme Court’s opinion in Anderson v. Mount Clemens for finding that the viability and admissibility of representative evidence depends on the situation:
“…when employers violate their statutory duty to keep proper records, and employees thereby have no way to establish the time spent doing uncompensated work, the ‘remedial nature of the [FLSA] and the great public policy which in embodies…militate against making’ the burden of proving uncompensated work ‘an impossible hurdle for the employee.”
By not keeping the required records, representative evidence that supported a reasonable and just inference of the actual time spent could be used and shifted the burden to Tyson to offer evidence of the precise time spent (which Tyson probably could not do, except by also using representative evidence of not having kept the required records.)
Based on this, Justice Kennedy concluded that Tyson’s primary defense to certification--that the representative evidence was unrepresentative and inaccurate--itself presented a common question supporting certification.
Recognizing the ostensible conflict with its Dukes and Comcast finding, the Court however added “Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing class wide liability,” but “whether a representative sample may be used to establish class wide liability will depend on the purpose for which the sample is introduced and on the underlying cause of action.” The Court specifically declined to adopt a broad and categorical rule in this regard.
It seems apparent that the spoliation of records by Tyson weighed heavily on the Court’s mind. Courts have often found a remedy for spoliation to be an inference: an inference that the missing evidence was averse to the spoliating party or an inference that the records in question would show what the blameless party claimed. In this light and given the Court’s repeated admonition that it was not setting a blanket rule regarding representative evidence, it seems that the Court was really applying an “unclean hands” approach by not allowing Tyson to, in fact, benefit from its noncompliance with the FLSA. The case really has limited applicability.
From a defense perspective, though, the real damage done by the decision lies in the failure of the Court to take advantage of an opportunity to rein in lower courts that seem to give only lip service to Dukes and Comcast. As a result, class actions will continue to proliferate and be hotly contest.