US Supreme Court Allows Use Of Sampling On Certification: What Does This Mean To Canada?

Last week, the US Supreme Court affirmed a $5.8 million judgment and upheld the District Court's decision to certify a class action on behalf of pork-processing workers employed by Tyson Foods Inc., the second largest meat producer in the world.1 Of note, the Court ruled that workers could use statistical sampling, averages and other statistical analyses to support certification. Given that some of these methods are not currently permitted on certification in Ontario and Canada, those practicing in class actions should consider the possible relevance of the US Supreme Court's decision to their practices.

In 2011, an Iowa federal jury had awarded workers $2.9 million, which was subsequently raised to $5.8 million, for uncompensated time spent putting on (i.e. donning) and taking off (i.e. doffing) required uniforms and protective clothing or equipment, as well as time spent walking.2 This judgment was upheld in 2014 by an Eighth Circuit panel. In both instances, the workers relied on a study that analyzed how long various donning and doffing activities took, averaged the time, and then added the estimates to the timesheets of each employee to ascertain which class members worked more than 40 hours a week and the value of damages across the class.

Tyson Foods appealed to the Supreme Court, arguing that the decisions of the lower courts ran counter to such landmark cases as Wal-Mart Stores Inc. v. Dukes,3 in which Justice Scalia found that a class action should only be allowed where the damages suffered by the class are identical to those of the named plaintiff. The judgment of the lower courts in Tyson relied on "extrapolation and averaging" where there was in fact some variance in the amount of time it took various workers to put on and take off their protective equipment. Thus not all cases were identical.

However, Justice Kennedy, writing for a 6-2 majority, found that the statistical analyses were necessary to fill an evidentiary gap left by the lack of records kept by Tyson Foods regarding don-doff times. If any worker had commenced an individual action, Justice Kennedy found that they would have had to rely on similar studies to prove the additional hours worked and thus damages suffered. The fact that this action was brought on behalf of a class should not bar the plaintiffs from using statistical methods if appropriate.

Justice Kennedy did caution that the acceptance of statistical evidence in cases that do not involve inferences of...