Tuesday, March 22, 2016
The Supreme Court today issued its decision in Tyson Foods v. Bouaphakeo. The Court upheld class certification on a state claim that parallels FLSA and the FLSA collective action (which is not a class action but an opt-in procedure) and reaffirmed its precedent that representative evidence can be used in FLSA cases. The Court's decision emphasizes that there is no one size fits all in the use of statistical evidence in class actions - whether evidence is appropriate is a question of evidence law that depends on the specific legal and factual requirements of the individual case. The case also supports the relatively narrow reading appellate courts have given the Court's decision in Comcast. The evidence presented, be it statistical or any other form of evidence, must fit the claims, but that does not mean that statistical analysis cannot help the court and the jury better understand what transpired.
What does Tyson portend for future trials, which Robert Klonoff predicted are going to be more common in class actions? A couple things. First, defendants will probably seek to bifurcate trials and make greater use of specific verdict forms rather than try to assault a lump sum verdict on appeal. Second, Daubert challenges are likely to continue to be contentious, and we'll see them twice: first on certification and again at trial.
Now the case goes back to the district court to determine an allocation plan, which I doubt defendants will challenge. The point of this appeal was to try to eliminate the use of statistical evidence in class actions and to broaden Comcast - otherwise why would fighting a 2.9 million dollar verdict be worth it for a defendant like Tyson? I can't think of a reason other than setting a precedent that prohibits the use of statistics in complex litigation will protect it and other defendants from class wage and hour claims, and potentially other claims. And note that the late Justice Scalia's dissent, if he had dissented, would have played little role in the outcome of the case as Justice Roberts joined the majority. It would have been 6 to 3 instead of 6 to 2.
One more thing: is this a business unfriendly decision? I think not. It is narrowly drawn to apply the law (FLSA) to employers, but an employer such as Tyson Foods can protect itself by keeping records that would obviate the need for representative evidence.