Consumer Finance Insights
June 17, 2015

Supreme Court Will Address Use Of Statistical Sampling and Whether A Class Can Be Certified If It Contains Members Who Are Not Injured

Last week, the United States Supreme Court granted cert in Bouaphakeo v. Tyson Foods, Inc., a Fair Labor Standards Act (“FLSA”) case with potentially wide reaching implications in federal class actions.  In Bouaphakeo, plaintiffs alleged that they were entitled to overtime for time spent putting on (“donning”) and taking off (“doffing”) protective gear required for their jobs.  Bouaphakeo, 765 F.3d 791, 794 (8th Cir. 2014).  Tyson added a set amount of time (four minutes) to each employee’s daily time to account for donning and doffing.  Plaintiffs alleged that Tyson Foods failed to properly account for donning and doffing time, and that plaintiffs and a class of similarly situated employees were undercompensated as a result.  Id

Buaphakeo presented a number of individualized issues.  Employees in different departments—and even different employees within the same departments—wore different types of protective gear and spent different amounts of time donning and doffing it.  Bouaphakeo, 765 F.3d at 797.  Additionally, some employees who were members of the class did not actually work overtime even after accounting for donning and doffing.  Id.  Seeking to overcome these arguments, the plaintiffs presented statistical evidence regarding the amount of donning and doffing time.  They asserted that employees in the “kill department” spent an average of 21 minutes donning and doffing protective equipment, while employees in the “fabrication department” spent 18 minutes.  Id. at 797.  Further, they alleged that individual damages could be determined by applying the average time spent donning and doffing to individual timecards.  The United States District Court for the Southern District of Iowa certified a class under Rule 23(b)(3) and a collective action under the FLSA, and Tyson was ultimately found liable.  The Eight Circuit affirmed over a strong dissent by Judge Beam.

The Supreme Court granted cert on two questions in Bouaphakeo—whether putative class plaintiffs may meet their burden under Rule 23(b)(3) by using “statistical techniques that presume all class members are identical to the average observed in a sample,” and whether certification is appropriate where members of the putative class have not been injured.  Tyson Foods, Inc. Petition for a Writ of Certiorari, Case no. 14-1146 at (i).  The Court’s answers to those questions could have a significant impact on class-action litigants.  For instance, those answers may address how many or what types of individualized issues render a case inappropriate for class treatment, the extent to which statistical sampling can be used to demonstrate that a case is appropriate for class treatment, and the impact of including putative class members who have no independent claim to relief.  The Supreme Court will hear oral argument during the October 2015 term.