Class action plaintiffs lawyers can breathe a bit of a sigh of relief today as the U.S. Supreme Court handed down a decision in one of several class action cases before the court this term, ruling in Tyson Foods, Inc. v. Bouaphakeo that in certain circumstances representative and statistical evidence can be used to establish classwide liability.
With the ruling, the high court disabused attorneys of the notion that its 2011 decision in Wal-Mart Stores Inc. v. Dukes precluded the use of any such evidence in class actions. In Wal-Mart, the court rejected a class of more than a million female employees claiming pay discrimination, with a majority of the justices finding that the women had distinct and different employment experiences and thus lacked the commonality needed to proceed as a class.
In Tyson Foods, some 3,000 hourly workers at an Iowa pork processing plant sued the company, alleging that the company failed to pay them for time spent “donning and doffing” protective equipment and walking to and from the job floor. The district court certified the workers as a class based upon the common question of whether those activities constituted compensable work, despite differences in the amount of time workers spent on these tasks, and allowed the workers to prove their case with statistical evidence of the time an average employee would spend donning and doffing — gleaned from their expert’s filming and timing of workers doing just that.
Tyson Foods argued that the court’s decision in Wal-Mart limited the use of that evidence.
Rejecting Wal-Mart as setting down such a bright line test and writing for a majority that included Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Anthony Kennedy said:
[T]he Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class action cases. Evidence of this type is used in various substantive realms of the law. Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on the elements of the underlying cause of action.
Read the full decision here.