Last Tuesday, the U.S. Supreme Court handed down its keenly anticipated decision in Tyson Foods, Inc. v. Bouaphakeo, another in its recent run of class action cases. Siding 6-2 with the plaintiffs-respondents, the majority held that the employees at one Tyson pork processing plant could extrapolate how much overtime class members had worked from statistical evidence estimating how long it took an “average” employee to “don and doff” protective gear. In other words, the Court agreed that the plaintiffs could use inferences drawn from “representative sampling” methods to smooth over employee-specific differences—even though such variations directly impacted whether Tyson was liable to any given class member for overtime pay.
Tyson Foods begs to be read in dialogue with the Court’s landmark decision in Wal-Mart Stores v. Dukes, in which the late Justice Antonin Scalia criticized the use of representative sampling in class actions at the expense of a defendant’s right to litigate individualized defenses to liability. Does the Tyson Foods holding mark a departure from recent precedent, including Wal-Mart’s critique of “Trial by Formula”? And could this ruling have broader implications for class actions in other areas of the law, particularly consumer fraud and false advertising cases?
In short: No, and not likely. The lopsided 6-2 margin from a markedly divided Court is a clue to just how narrowly cabined Tyson’s holding is. True, Justice Anthony Kennedy, writing for the majority, did refuse to announce a “categorical exclusion” of the use of so-called “representative evidence” in class actions—but he likewise refused to adopt any broad exception to Wal-Mart v. Dukes and its maxim of “No Trial by Formula.”
Instead, the Court made clear that “whether a representative sample may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action.” As Justice Kennedy explained, one test is to ask whether each individual “class member could have relied on that sample to establish liability if he or she had brought an individual action.” And in overtime cases specifically, courts had long relaxed the evidentiary burdens on individual plaintiffs where the employer—like Tyson—had not kept complete records of the hours its employees worked.
By contrast, for many other causes of action, statistical evidence would not help individual plaintiffs meet their burden—and so would not survive the Tyson test. In consumer fraud and false advertising cases, for example, individual plaintiffs would not be able to use a representative sample to prove what proportion of class members actually relied on a defendant’s representations. Nor would sampling be useful in a case in which a defendant’s labels and advertisements of its products varied in important ways over the class period, so that each class member’s right to recovery depended on which specific label or ad she saw for each relevant product she purchased.
Tyson Foods also left open the important question of whether sampling was still permissible if it meant that uninjured class members—that is, those who worked fewer hours than the classwide “average”— might receive damages at the defendant’s expense. The majority found that this question was “not yet fairly presented,” as the district court had not begun distributing damages according to the employees’ sampling-based method. But at least one vote may switch if this issue arises in Tyson or future cases: in his concurring opinion, Chief Justice John Roberts expressed concern that such sampling might not support “a method for awarding damages only to those class members who suffered an actual injury,” as required by Article III of the Constitution.
Tyson Foods, in sum, may raise as many thorny questions as it answers. And in consumer class actions specifically, it is unlikely to resolve the still-raging battle over the use of statistical evidence to prove liability on a classwide basis.
Photo courtesy of Flickr/Roman Boed