Wednesday, October 14, 2015
Four amicus briefs by law professors have been filed in the Supreme Court in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (to be argued November 10, 2015). Three of the law professors’ briefs support the respondent (the plaintiff class), and the fourth supports neither party.
The case has been a marathon, eight years and counting. In 2007, plaintiffs filed a class action (under Iowa state law and under Rule 23(b)(3)) and representative action (under the Fair Labor Standards Act) in the Northern District of Iowa. Plaintiffs sued on behalf of employees of Defendant Tyson Foods at its meat processing facility in Storm Lake, Iowa. The class sought unpaid overtime wages for uncompensated time spent donning and doffing clothing and protective equipment and other associated tasks.
In 2008, the district court certified both a collective action class and a Rule 23(b)(3) class, narrowing the class originally sought by the plaintiffs to include only those employees paid under a “gang time” compensation system in the Kill, Cut, or Retrim departments. Over 500 employees opted into the FLSA class. There are a few thousand members of the Rule 23(b)(3) class.
After losing the class certification motion, Tyson filed a motion to consolidate the case via multidistrict litigation with other, similar cases against Tyson. However, the Judicial Panel on Multidistrict Litigation denied consolidation because discovery was likely to “proceed on a plant-by-plant basis.”
The plaintiff class survived a motion for summary judgment and a motion to decertify the class in 2011.
After a nine-day jury trial, the jury returned a verdict for the class of $2,892,378.70. With liquidated damages, the final judgment totaled $5,785,757.40. The Eighth Circuit affirmed the judgment. Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 796 (8th Cir. 2014), cert. granted, 135 S. Ct. 2806 (2015).
As Tyson phrases them, the two Questions Presented in the Supreme Court are:
(1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and
(2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
Three of the law professors’ briefs address the first question:
(Allan Erbsen, Kevin M. Clermont, Richard D. Freer, Mark Moller, and Howard M. Wasserman)
(Jonah B. Gelbach, Stephen B. Burbank, J. Maria Glover, Arthur R. Miller, Alexander A. Reinert, Adam N. Steinman, and Tobias Barrington Wolff)
(Sergio J. Campos, Suzette M. Malveaux, David Rosenberg, Michael D. Sant’Ambrogio, Jay Tidmarsh, and Adam S. Zimmerman )
One of the law professors’ briefs addresses the second question: