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Supreme Court Condones Representative Statistics to Prove Class Action ClaimsPDF
By Tyler Tarney
In class actions under Rule 23 of the Federal Rules of Civil Procedure, as well as collective actions under the Fair Labor Standards Act (FLSA), individual plaintiffs seek relief on behalf of themselves and similarly-situated parties. When a Rule 23 class action is certified, prospective members are automatically presumed part of the suit unless they opt-out. When a FLSA collective action is certified, prospective members must affirmatively opt-in to participate. In both class and collective actions, plaintiffs must show that prospective members are similarly situated and that the claims present common questions of law or fact. In Wal-Mart v. Dukes, 564 U.S. 338 (2013), the United States Supreme Court rejected a proposed class of 1.6 million gender discrimination because each claim turned on “the reason for a particular employment decision” and, therefore, the claims lacked the required commonality for class treatment. The Supreme Court also rejected a “trial by formula” approach where a random sample of claims would be tried and the results of those trials would be applied across the entire class.
In a recent decision, Tyson Foods, Inc. v. Bouaphakeo,577 U.S. __ (Mar. 22, 2016), a case closely watched by class action plaintiffs and defendants, a class of pork-processing employees claimed they were not paid overtime for time spent putting on protective gear at the beginning and end of their shifts. The employees were in different positions and wore different protective gear, which took varying times to put on and remove. Based on these differences, the employer argued class and collective treatment was inappropriate because they were not similarly-situated and determining whether and to what extent they were entitled to damages was too speculative. But the United States Supreme Court ruled that the employees could prove liability and damages by relying on “representative evidence” in the form of statistical averages prepared by an expert’s videotaped observations of over 700 employees putting on and removing protective gear. The Supreme Court declined to adopt “broad and categorical rules” governing the use of representative evidence in class and collective actions, but rather stated that this “will depend on the facts and circumstances.” The facts and circumstances that the Supreme Court emphasized in Tyson were the employer’s failure to comply with its statutory duty to keep proper records, the difficulty in proving their claims without representative evidence, the “remedial purpose” of the FLSA, and the employer’s failure to challenge the validity of the representative evidence through a Daubert hearing or rebuttal expert testimony.
Ultimately, Tyson is a win for class and collective action plaintiffs because it makes it easier for them to join together to pursue their claims. It also fills the gap left open after Wal-Mart v. Dukes by clarifying the standards that must be satisfied—and the factors that must be considered—in determining whether class or collective actions present common questions of law or fact. Based on the lack of a categorical rule governing the use of representative evidence, class and collective action plaintiffs will likely litigate in the lower courts and test the bounds of Tyson in claims outside the FLSA.
Every class or collective action is different. But the main takeaway of Tyson is that it makes it easier for class and collective action plaintiffs to join together and transform individual issues into common ones through representative evidence. It may also make it easier for trial courts to defer resolving dispositive issues traditionally resolved at the class certification stage. Following Tyson, class and collective action defendants should closely scrutinize and challenge the validity of expert studies and representative evidence through pre-trial Daubert hearings or rebuttal experts.
If you have questions about the decision, would like a copy of it, or have a general question about class or collective actions, do not hesitate to contact a member of our Environmental/Mass Tort/Class Action or Employment Liability Practice Groups.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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