Supreme Court Hears Argument in Tyson Foods v. Bouaphakeo—and a Blockbuster Class Certification Ruling Seems Less Likely

The Supreme Court on Tuesday heard oral argument in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, a case that has been closely watched for its potential to narrow the circumstances in which a class action may be certified under Federal Rule of Civil Procedure 23 and a collective action for unpaid wages certified under the Fair Labor Standards Act (FLSA). We previously described this case in prior blog posts. One of us attended the argument, and the other closely reviewed the transcript (pdf). Our combined reaction: The anticipated decision in this case may focus on an FLSA issue and, if so, then it seems unlikely to mark a sea change in the rules governing Rule 23 class actions.

In Tyson Foods, the district court certified a Rule 23(b)(3) class action and FLSA collective action for claims alleging that Tyson Foods had not paid its employees for all time spent donning and doffing protective gear. Plaintiffs sought to prove injury and damages using statistical evidence that averaged donning and doffing time, even though employees used different equipment and it was undisputed that hundreds of employees were not entitled to any additional compensation. A jury found Tyson Foods liable, but awarded only about half of the damages that plaintiffs' statistical experts had calculated were due.

The Supreme Court granted certiorari to decide two questions with potentially broad application to Rule 23(b)(3) class actions: (1) whether differences among individual class members may be ignored, and a class certified, when plaintiffs use statistical techniques that presume that all class members are identical; and (2) whether a class may be certified if it contains hundreds of members who were not injured and have no legal right to damages. At oral argument, however, it appeared that a number of the Justices—and perhaps a majority—may see the case as hinging on its specific employment-law context under the FLSA.

The United States argued in its amicus curiae brief (pdf) in support of the employees that representative adjudication was proper in Tyson Foods under the Court's precedent in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). Mt. Clemens, the government argued, established a burden-shifting framework for deciding FLSA cases in which the employer had not kept precise records of the time each employee worked (as Tyson Foods agreed it had not). If a class plaintiff were to show, using a sampling of employees, that unpaid work had been...