364:, however, the representative evidence could be used to support a finding for individual plaintiffs. The Court noted that Tyson Foods did not challenge the expert testimony or the study on which the plaintiffs relied. Also, Tyson Foods argued that because not all class members would be found to be injured and receive compensation, the employees had to show a clear mechanism by which the district court could identify the class members who were not injured and so should not recover. That question was not presented in the lower courts, and the record was not developed on that point, however, so the Supreme Court remanded for further proceedings on that matter.
29:
380:
donning and doffing since it awarded a sum lower than the study suggested to be appropriate. To be compensated, each employee must have gone uncompensated for some of the donning and doffing time and must have worked overtime once that time was factored in. However, since the jury did not report how much time they found should be compensated for the different departments, it is unclear how the district court would be able to award damages only to employees who were found by the jury found to be injured.
357:, the class had failed to meet the more basic commonality requirement of class actions. The plaintiffs wanted to use representative evidence to show that there was a common policy of discretion in employment. However, in that case, since the employees were not similarly situated, they would not have been able to use the representative evidence even if they had brought individual lawsuits.
392:
appropriately analyze the class certification requirements, according to the dissent, Tyson Foods could be held liable to a large group without proof that each individual within the class was injured. The dissent also suggested that the majority opinion improperly construed the predominance inquiry, relaxed the rule for representative evidence, and failed to adhere to prior precedent.
336:
examination is meant to ensure that it makes sense to adjudicate the claims as a class. The predominance inquiry is different from the commonality inquiry in class actions since it asks not only whether there are common questions but also whether the common, class-wide issues are more important or arise more frequently than the individual ones.
288:
to their work. The employees claimed that the time spent putting on and taking off their protective gear, "donning and doffing," met the standard and that Tyson Foods should have been paying them for the time that they did so. Instead, Tyson Foods compensated some employees for four to eight minutes of that activity and others for none at all.
335:
The
Supreme Court affirmed the decision of the Eighth Circuit. The parties were in dispute over whether the class met the predominance inquiry required by Federal Rule of Civil Procedure 23(b)(3), which requires the district court to ask whether common questions predominate over individual ones. That
287:
Wage
Payment Collection Law. The employees worked in an Iowa pork processing plant in the cut and retrim and kill departments. As part of their work, the employees needed to wear protective gear, and the FLSA required for them to be compensated for time spent doing things "integral and indispensable"
343:
The
Supreme Court looked to the practical need for representative evidence and recognized that in some cases, it is the only evidence available. Since Tyson Foods had failed to keep records on employee time, representative evidence was necessary. The key inquiry, according to the Supreme Court, was
298:
The district court held that there were sufficiently-common questions to certify the class, such as whether the donning and doffing qualified as work under the FLSA. The case was tried and went to a jury, which had to decide whether the donning and doffing qualified as work and how much time that
302:
However, Tyson Foods did not keep records of the time that employees spent to put on and take off their protective gear. The employees, therefore, relied on their statements, videos of people putting on and taking off protective gear, and a research study. The study had people put on and take off
391:
dissented, joined by
Justice Alito. The dissent believed the district court was wrong in finding that the class satisfied Rule 23's predominance requirement because it did not recognize that whether each employee worked overtime was a critical individual issue. Because the district court did not
143:
The district court did not err in certifying and maintaining a class of employees who allege that the employer’s failure to pay them for donning and doffing protective gear violate the Fair Labor
Standards Act, notwithstanding the employees’ reliance on “representative evidence” to determine the
379:
in Part II. Part I suggested that the Court was not relaxing rules for representative evidence in this case but had found that the study met the required standard of proof. Part II expressed concern that there is no clear way to determine how much time the jury thought should be compensated for
339:
Tyson Foods maintained that the common questions did not predominate because it was the questions of each individual's work time that predominated. The employees, by contrast, argued that the representative evidence could replace individual inquiries. The permissibility of the representative
306:
Tyson Foods asked the judge to bifurcate proceedings so that the jury would first answer whether the FLSA covered time taken to put on and take off protective gear and how long the donning and doffing took, and the jury would then determine which employees would be eligible to recover.
299:
took but was not paid for by Tyson Foods. The claims were based on overtime work and so only employees who, after including donning and doffing time, worked more than forty hours per week would be able to recover.
319:
The representative evidence presented would have supported an award of $ 6.7 million. The jury found that donning and doffing was compensable under the FLSA but awarded only $ 2.9 million to the class.
1192:
1162:
267:'s Rule 23 and that the use of representative evidence was allowable in this case. It has been cited by lower courts and has spawned significant academic discussion.
344:
whether the employees would have similarly used the representative evidence in individual lawsuits if they had brought individual suits instead of a class action.
539:
1097:
672:
643:
252:
77:
482:
1036:
406:
Though relatively recent, it has already been cited in other cases and been a popular topic of legal scholarship. Experts continue to discuss
1182:
1028:
446:
for the proposition that needing to calculate individual damages does not per se defeat the predominance inquiry for class certifications).
571:, 92 N.Y.U. L. REV. 971 (2017) (describing trends in class actions, including the holding and potential consequences in circuit courts of
531:, 2016 CARDOZO L. REV. DE NOVO 207 (2016) (discussing the benefits of sampling and its application in class action litigation in light of
522:, 59 B.C. L. REV. 655 (2018) (proposing a method to determine when to use sampling evidence in class actions to prove individual damages).
1177:
1053:
638:
410:’s legacy, particular how the case will impact the predominance inquiry and whether the use of representative evidence will expand.
295:. Tyson Foods argued that the class should not be certified because of the individual variance in the employees' protective gear.
1069:
324:
1144:
436:
for the proposition that you could use representative samples when needed because employers did not keep sufficient records).
468:
455:
449:
1077:
1061:
263:. The Supreme Court affirmed the Eighth Circuit's judgment that the class satisfied the predominance requirement of the
33:
513:
and speculating on the difficulties lower courts may have in determining when and how to use representative evidence).
316:
hearing, and instead emphasized that there was too much individual variance for the issues to be resolved in a class.
603:, the Court held that representative evidence could be used to satisfy the class certification predominance inquiry).
567:
52:
Tyson Foods, Inc., Petitioner v. Peg
Bouaphakeo, et al., Individually and on Behalf of All Others Similarly Situated
627:
579:
292:
264:
327:
disagreed, affirmed the judgment, and held that the use of representative evidence was appropriate in this case.
255:, which held that representative evidence could be used to support the claims of the class. The case arose as a
349:
1108:
1037:
https://www.nytimes.com/2016/03/23/business/supreme-court-upholds-worker-class-action-suit-against-tyson.html
552:
144:
number of additional hours that each employee worked, when the employer had failed to keep adequate records.
439:
248:
1029:
https://www.nytimes.com/2015/11/11/business/supreme-court-hears-tyson-foods-class-action-labor-case.html
506:: A Murky Future for Representative Evidence in Rule 23(b)(3) Class Actions and FLSA Collective Actions
419:
1054:
https://www.aarp.org/aarp-foundation/our-work/legal-advocacy/info-2016/Tyson-Foods-v-Bouaphakeo.html
280:
403:
made headlines when it reached the
Supreme Court. Legal commentators also blogged about the case.
527:
310:
However, Tyson Foods did not question the representative evidence used, such as by moving for a
1152:
1070:
http://www.scotusblog.com/2015/11/argument-analysis-big-test-of-class-action-maybe-not-so-big/
429:
1101:
676:
72:
1187:
1126:
668:
1117:
8:
179:
461:, 862 F.3d 250, 270-71 (2d Cir. 2017) (describing the predominance inquiry laid down in
323:
Tyson moved to set aside the jury verdict by alleging improper class certification. The
422:, 137 S. Ct. 590, 590 (2016) (Supreme Court granted, vacated, and remanded in light of
61:
1078:
http://www.scotusblog.com/2016/03/opinion-analysis-group-lawsuits-get-a-modest-boost/
1062:
http://www.scotusblog.com/2015/11/argument-preview-new-woe-for-class-action-lawsuits/
518:
599:
ANNOTATED MANUAL FOR COMPLEX LITIGATION § 21.28 (4th ed., May 2018) (noting that in
303:
gear and averaged how long it took, which was considered "representative evidence."
787:
519:
The
Admissibility of Sampling Evidence to Prove Individual Damages in Class Actions
122:
1157:
503:
388:
199:
175:
167:
187:
1171:
413:
1050:
Supreme Court Allows Class Action to
Proceed Based on “Representative” Proof
633:
376:
372:
256:
191:
159:
1135:
100:
276:
260:
203:
130:
88:
84:
791:
126:
312:
291:
The employees sought to certify their class under Rule 23 of the
491:, ANTITRUST, Fall 2017, at 51 (discussing the issues present in
484:
Statistical
Evidence, Antitrust Impact, and Class Certification:
28:
1163:
List of United States Supreme Court cases by the Roberts Court
220:
Kennedy, joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan
1025:
Supreme Court Hears Case for Tyson Foods Class-Action Lawsuit
606:
NEWBERG ON CLASS ACTIONS § 4:50 (5th ed., Dec. 2017) (citing
585:, 95 N.C. L. REV. 607 (2017) (discussing the consequences of
1066:
Argument Analysis: Big Test of Class Action—Maybe Not so Big
1033:
Supreme Court Upholds Worker Class-Action Suit Against Tyson
975:, 136 S. Ct. at 1052-53 (Roberts, C.J., concurring in part).
963:, 136 S. Ct. at 1051-52 (Roberts, C.J., concurring in part).
549:
and suggesting how the case might influence class actions).
509:, 38 BERKELEY J. EMP. & LAB. L. 327 (2017) (describing
284:
119:
414:
Selected Supreme Court and Federal Courts of Appeals Cases
951:, 136 S. Ct. at 1051 (Roberts, C.J., concurring in part).
936:, 136 S. Ct. at 1050 (Roberts, C.J., concurring in part).
275:
Employees brought suit in federal district court against
1193:
United States Supreme Court cases of the Roberts Court
1074:
Opinion Analysis: Group Lawsuits get a (Modest?) Boost
644:
List of United States Supreme Court cases, volume 577
562:
and how trial courts address wage-and-hour disputes).
253:
United States Court of Appeals for the Eighth Circuit
251:
case in which the Court affirmed the decision of the
1058:
Argument Preview: New Woe for Class-Action Lawsuits?
528:
Sampling and Reliability in Class Action Litigation
347:It was on that point that the Court distinguished
593:
568:Class Actions Part II: A Respite from the Decline
499:’s holding might influence antitrust litigation).
1169:
589:on using statistics and sampling for liability).
545:, 2016 CATO SUP. CT. REV. 278 (2016) (analyzing
617:for a description of the predominance inquiry).
1014:, 136 S. Ct. at 1056 (Thomas, J., dissenting).
1002:, 136 S. Ct. at 1054 (Thomas, J., dissenting).
987:, 136 S. Ct. at 1053 (Thomas, J., dissenting).
944:
942:
610:for the definition of an individual question).
452:, 827 F.3d 817, 833 (8th Cir. 2016) (similar).
442:, 824 F.3d 1150, 1155 (9th Cir. 2016) (citing
340:evidence, therefore, was central to the case.
1056:(last visited May 27, 2018); Lyle Denniston,
660:
658:
471:, 862 F.3d 292, 308 (3d Cir. 2017) (similar).
881:
879:
877:
875:
862:
860:
858:
833:
831:
829:
432:, 136 S. Ct. 2198, 2241 n.19 (2016) (citing
939:
804:
802:
800:
765:
763:
761:
759:
757:
755:
730:
728:
726:
724:
722:
720:
695:
693:
691:
689:
687:
685:
558:, 130 HARV. L. REV. 407 (2016) (discussing
516:Hillel J. Bavli & John Kenneth Felter,
655:
582:and the Future of Statistical Adjudication
995:
993:
915:
872:
855:
826:
639:List of United States Supreme Court cases
1158:Federal Rules of Civil Procedure, Rule 2
797:
752:
717:
682:
554:Civil Procedure—Representative Evidence—
440:Vaquero v. Ashley Furniture Indus., Inc.
1145:Supreme Court (slip opinion) (archived)
1076:, SCOTUSBLOG (Mar. 22, 2016, 7:07 PM),
1068:, SCOTUSBLOG (Nov. 10, 2015, 1:48 PM),
1060:, SCOTUSBLOG (Nov. 7, 2015, 12:33 AM),
927:
541:Litigation Matters: The Curious Case of
475:
325:Court of Appeals for the Eighth Circuit
1170:
990:
679:___, 136 S. Ct. 1036, 1044-45 (2016).
16:2016 United States Supreme Court case
450:Day v. Celadon Trucking Servs., Inc.
1183:United States class action case law
613:5 FED. PROC. FORMS § 11:32 (citing
13:
1035:, THE N.Y. TIMES (Mar. 22, 2016),
1027:, THE N.Y. TIMES (Nov. 10, 2015),
228:Roberts, joined by Alito (Part II)
133:. granted, 135 S. Ct. 2806 (2015).
34:Supreme Court of the United States
14:
1204:
1178:United States Supreme Court cases
1104:___ (2016) is available from:
1086:
495:in the antitrust context and how
430:Fisher v. Univ. of Tex. at Austin
1153:Fair Labor Standards Act of 1938
628:Fair Labor Standards Act of 1938
293:Federal Rules of Civil Procedure
265:Federal Rules of Civil Procedure
27:
1094:Tyson Foods, Inc. v. Bouaphakeo
1042:
1017:
1005:
978:
966:
954:
903:
891:
843:
783:Bouaphakeo v. Tyson Foods, Inc.
665:Tyson Foods, Inc. v. Bouaphakeo
556:Tyson Foods, Inc. v. Bouaphakeo
504:Tyson Foods, Inc. v. Bouaphakeo
395:
244:Tyson Foods, Inc. v. Bouaphakeo
116:Bouaphakeo v. Tyson Foods, Inc.
22:Tyson Foods, Inc. v. Bouaphakeo
814:
775:
740:
705:
594:Selected Treatises and Manuals
367:
350:Wal-Mart Stores, Inc. v. Dukes
1:
649:
270:
247:, 577 U.S. 442 (2016), was a
7:
621:
488:and Antitrust Class Actions
330:
249:United States Supreme Court
10:
1209:
1136:Oyez (oral argument audio)
383:
353:, 564 U.S. 338 (2011). In
543:Tyson Foods v. Bouaphakeo
232:
224:
216:
211:
153:
148:
142:
137:
111:
106:
96:
67:
57:
47:
40:
26:
21:
912:, 136 S. Ct. at 1049-50.
852:, 136 S. Ct. at 1046-47.
823:, 136 S. Ct. at 1045-46.
749:, 136 S. Ct. at 1043-44.
714:, 136 S. Ct. at 1042-43.
281:Fair Labor Standards Act
41:Argued November 10, 2015
469:Taha v. County of Bucks
236:Thomas, joined by Alito
279:for violations of the
43:Decided March 22, 2016
924:, 136 S. Ct. at 1050.
900:, 136 S. Ct. at 1049.
888:, 136 S. Ct. at 1048.
869:, 136 S. Ct. at 1047.
840:, 136 S. Ct. at 1046.
811:, 136 S. Ct. at 1045.
772:, 136 S. Ct. at 1044.
737:, 136 S. Ct. at 1043.
702:, 136 S. Ct. at 1042.
502:Daniel Yablon, Note,
481:Michael G. McLellan,
420:FTS USA LLC v. Monroe
375:concurred, joined by
373:Chief Justice Roberts
83:136 S. Ct. 1036; 194
1048:Dan Kohrman et al.,
788:765 F.3d 791
476:Selected Scholarship
565:Robert H. Klonoff,
180:Ruth Bader Ginsburg
1072:; Lyle Denniston,
1064:; Lyle Denniston,
164:Associate Justices
538:Andrew J. Trask,
525:Hillel J. Bavli,
240:
239:
1200:
1149:
1143:
1140:
1134:
1131:
1125:
1122:
1116:
1113:
1107:
1081:
1046:
1040:
1021:
1015:
1009:
1003:
997:
988:
982:
976:
970:
964:
958:
952:
946:
937:
931:
925:
919:
913:
907:
901:
895:
889:
883:
870:
864:
853:
847:
841:
835:
824:
818:
812:
806:
795:
785:
779:
773:
767:
750:
744:
738:
732:
715:
709:
703:
697:
680:
662:
578:Robert G. Bone,
259:lawsuit against
149:Court membership
31:
30:
19:
18:
1208:
1207:
1203:
1202:
1201:
1199:
1198:
1197:
1168:
1167:
1147:
1141:
1138:
1132:
1129:
1123:
1120:
1114:
1111:
1105:
1089:
1084:
1052:, AARP FOUND.,
1047:
1043:
1031:; Adam Liptak,
1022:
1018:
1010:
1006:
998:
991:
983:
979:
971:
967:
959:
955:
947:
940:
932:
928:
920:
916:
908:
904:
896:
892:
884:
873:
865:
856:
848:
844:
836:
827:
819:
815:
807:
798:
781:
780:
776:
768:
753:
745:
741:
733:
718:
710:
706:
698:
683:
663:
656:
652:
624:
596:
478:
416:
398:
386:
370:
333:
283:(FLSA) and the
273:
202:
200:Sonia Sotomayor
190:
178:
176:Clarence Thomas
168:Anthony Kennedy
92:
42:
36:
17:
12:
11:
5:
1206:
1196:
1195:
1190:
1185:
1180:
1166:
1165:
1160:
1155:
1150:
1088:
1087:External links
1085:
1083:
1082:
1041:
1016:
1004:
989:
977:
965:
953:
938:
926:
914:
902:
890:
871:
854:
842:
825:
813:
796:
774:
751:
739:
716:
704:
681:
653:
651:
648:
647:
646:
641:
636:
631:
623:
620:
619:
618:
611:
604:
595:
592:
591:
590:
576:
563:
550:
536:
523:
514:
500:
477:
474:
473:
472:
466:
459:Petrobras Sec.
453:
447:
437:
427:
415:
412:
397:
394:
389:Justice Thomas
385:
382:
369:
366:
332:
329:
272:
269:
238:
237:
234:
230:
229:
226:
222:
221:
218:
214:
213:
209:
208:
207:
206:
188:Stephen Breyer
165:
162:
157:
151:
150:
146:
145:
140:
139:
135:
134:
113:
109:
108:
104:
103:
98:
94:
93:
82:
69:
65:
64:
59:
55:
54:
49:
48:Full case name
45:
44:
38:
37:
32:
24:
23:
15:
9:
6:
4:
3:
2:
1205:
1194:
1191:
1189:
1186:
1184:
1181:
1179:
1176:
1175:
1173:
1164:
1161:
1159:
1156:
1154:
1151:
1146:
1137:
1128:
1119:
1110:
1109:CourtListener
1103:
1099:
1095:
1091:
1090:
1079:
1075:
1071:
1067:
1063:
1059:
1055:
1051:
1045:
1038:
1034:
1030:
1026:
1023:Adam Liptak,
1020:
1013:
1008:
1001:
996:
994:
986:
981:
974:
969:
962:
957:
950:
945:
943:
935:
930:
923:
918:
911:
906:
899:
894:
887:
882:
880:
878:
876:
868:
863:
861:
859:
851:
846:
839:
834:
832:
830:
822:
817:
810:
805:
803:
801:
793:
789:
784:
778:
771:
766:
764:
762:
760:
758:
756:
748:
743:
736:
731:
729:
727:
725:
723:
721:
713:
708:
701:
696:
694:
692:
690:
688:
686:
678:
674:
670:
666:
661:
659:
654:
645:
642:
640:
637:
635:
632:
629:
626:
625:
616:
612:
609:
605:
602:
598:
597:
588:
584:
583:
577:
574:
570:
569:
564:
561:
557:
555:
551:
548:
544:
542:
537:
534:
530:
529:
524:
521:
520:
515:
512:
508:
507:
501:
498:
494:
490:
489:
485:
480:
479:
470:
467:
464:
460:
458:
454:
451:
448:
445:
441:
438:
435:
431:
428:
425:
421:
418:
417:
411:
409:
404:
402:
393:
390:
381:
378:
377:Justice Alito
374:
365:
363:
358:
356:
352:
351:
345:
341:
337:
328:
326:
321:
317:
315:
314:
308:
304:
300:
296:
294:
289:
286:
282:
278:
268:
266:
262:
258:
254:
250:
246:
245:
235:
231:
227:
223:
219:
215:
212:Case opinions
210:
205:
201:
197:
193:
189:
185:
181:
177:
173:
169:
166:
163:
161:
158:
156:Chief Justice
155:
154:
152:
147:
141:
136:
132:
128:
124:
121:
117:
114:
110:
105:
102:
101:Oral argument
99:
95:
90:
86:
80:
79:
74:
70:
66:
63:
60:
56:
53:
50:
46:
39:
35:
25:
20:
1093:
1073:
1065:
1057:
1049:
1044:
1032:
1024:
1019:
1011:
1007:
999:
984:
980:
972:
968:
960:
956:
948:
933:
929:
921:
917:
909:
905:
897:
893:
885:
866:
849:
845:
837:
820:
816:
808:
782:
777:
769:
746:
742:
734:
711:
707:
699:
664:
634:Class action
614:
607:
600:
586:
581:
580:Tyson Foods
572:
566:
559:
553:
546:
540:
532:
526:
517:
510:
505:
496:
492:
487:
486:Tyson Foods
483:
462:
456:
443:
433:
423:
407:
405:
400:
399:
396:Implications
387:
371:
361:
359:
354:
348:
346:
342:
338:
334:
322:
318:
311:
309:
305:
301:
297:
290:
274:
257:class action
243:
242:
241:
195:
192:Samuel Alito
183:
171:
160:John Roberts
115:
107:Case history
76:
51:
1188:Tyson Foods
1012:Tyson Foods
1000:Tyson Foods
985:Tyson Foods
973:Tyson Foods
961:Tyson Foods
949:Tyson Foods
934:Tyson Foods
922:Tyson Foods
910:Tyson Foods
898:Tyson Foods
886:Tyson Foods
867:Tyson Foods
850:Tyson Foods
838:Tyson Foods
821:Tyson Foods
809:Tyson Foods
794: 2014).
770:Tyson Foods
747:Tyson Foods
735:Tyson Foods
712:Tyson Foods
700:Tyson Foods
615:Tyson Foods
608:Tyson Foods
601:Tyson Foods
587:Tyson Foods
573:Tyson Foods
560:Tyson Foods
547:Tyson Foods
533:Tyson Foods
511:Tyson Foods
463:Tyson Foods
444:Tyson Foods
434:Tyson Foods
424:Tyson Foods
401:Tyson Foods
368:Concurrence
362:Tyson Foods
277:Tyson Foods
261:Tyson Foods
225:Concurrence
204:Elena Kagan
1172:Categories
667:, No.
650:References
271:Background
89:U.S. LEXIS
87:124; 2016
58:Docket no.
85:L. Ed. 2d
68:Citations
1092:Text of
792:8th Cir.
622:See also
355:Wal-Mart
331:Decision
217:Majority
127:8th Cir.
97:Argument
1118:Findlaw
669:14-1146
384:Dissent
313:Daubert
233:Dissent
138:Holding
129:2014);
62:14-1146
1148:
1142:
1139:
1133:
1130:
1127:Justia
1124:
1121:
1115:
1112:
1106:
790: (
786:,
671:,
630:(FLSA)
198:
196:·
194:
186:
184:·
182:
174:
172:·
170:
118:, 765
1100:
675:
497:Tyson
493:Tyson
457:In re
408:Tyson
112:Prior
75:442 (
1102:U.S.
677:U.S.
285:Iowa
131:cert
120:F.3d
91:2134
78:more
73:U.S.
71:577
1098:577
673:577
360:In
123:791
1174::
1096:,
992:^
941:^
874:^
857:^
828:^
799:^
754:^
719:^
684:^
657:^
575:).
535:).
465:).
426:).
1080:.
1039:.
125:(
81:)
Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.