UNITED STATES – The United States Supreme Court has agreed to review a decision of the Eighth Circuit that upheld a $5.8 million judgment in favor of a class consisting of Tyson Foods employees who alleged Tyson underpaid them for time spent putting on and taking off protective equipment necessary for their jobs.
Among other issues raised, Tyson challenged plaintiffs’ use of statistical evidence to establish liability and damages. Relying on the Supreme Court’s rejection of “Trial by Formula” in Wal-Mart Stores, Inc. v. Dukes, 564 US 277, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011), Tyson argued that the trial court impermissibly allowed plaintiffs to establish liability and damages by resort to a formula based on individual timesheets and average times calculated from a sample of observations of employee putting on and taking off protective equipment. But in a 2-1 decision, the Eighth Circuit’s majority was quick to note that “[u]sing statistics or samples in litigation is not necessarily trial by formula.” Distinguishing Duke, the Eighth Circuit stated that plaintiffs do not prove liability only for a sample set of class members. They prove liability for the class as a whole.” The Eighth Circuit acknowledged plaintiffs’ reliance “on inference from average donning, doffing, and walking times,” but determined this evidence to be “comparable to a jury applying testimony from named plaintiffs to find classwide liability (a practice approved by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946).
The Tyson dissent insisted that the class should never have been certified in the first place, citing Rule 23’s requirement of “questions of law or fact common to the class.” Commonality, wrote the dissent, is not simply a matter of common questions, but “‘rather the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.'” Quoting Dukes, 131 S.Ct. at 2551. Here the dissent argued that commonality could not possibly exist because of the many differences in which class members sustained damages and in what amounts. In this regard, the dissent observed that the plaintiff’s own evidence established that at least 212 members of the purported class had no damages, while there was a vast discrepancy in the amount of damages among those who had claims for damages. Moreover, the dissent noted plaintiff’s failure to establish the number of purported class members who were fully compensated by payments made by Tyson and the number who were not fully compensated even though “many class employees fit within each category and all were apparently included as beneficiaries of the single damages verdict returned by the jury.”
The Supreme Court will decide the appeal during the next term (beginning in October 2015).
