In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court of the United States definitively answered the question of whether statistical “representative evidence” may be used in class actions to establish that “questions of law or fact common to class members predominate over any questions affecting only individual members” pursuant to Rule 23(b)(3). According to the Court’s much-anticipated opinion, the answer is yes: “Its permissibility turns not on the form a proceeding takes – be it a class or individual action – but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.”
In Tyson, employees had filed a class action suit against their employer, Tyson Foods, Inc., alleging violations of the Fair Labor Standards Act of 1938 based on the failure to pay required overtime compensation for the donning and doffing of protective gear necessary for their hazardous work. Because Tyson Foods did not maintain records of donning and doffing time, the employees relied on representative evidence, which included testimony, video recordings, and an expert study, to show the average amount of donning and doffing time for each employee. The jury awarded the class approximately $2.9 million for unpaid wages, and the judgment and award was affirmed by the Court of Appeals for the Eighth Circuit.
On appeal before the Supreme Court, the central dispute was whether “it can be assumed each employee donned and doffed for the same average time” set forth in the expert’s sample, thus eliminating the need for individual inquiries that would cause class certification to fail on Rule 23(b)(3) predominance grounds. Tyson Foods argued before the Court that the expert study improperly “manufactures predominance by assuming away the very differences that make the case inappropriate for classwide resolution” and “absolves each employee of the responsibility to prove personal injury.”
The Court ultimately rejected the opportunity to “announce a broad rule against the use in class actions of what the parties call representative evidence.” Rather, the Court explained that “[w]hether 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 type of underlying cause of action. The Court stated that one method for a plaintiff to show that representative evidence is permissible to establish classwide liability “is by showing that each class member could have relied on that sample to establish liability if he or she had brought an individual action.” “Once a district court finds evidence to be admissible, its persuasiveness is, in general, a matter for the jury.”
Tyson now makes clear that the use of representative evidence to establish classwide liability is not per se impermissible. Therefore, to challenge that type of evidence, a party defending against class certification should strongly consider whether to pursue the available avenues expressly noted by the Court – “move for a hearing regarding the statistical viability” of any expert evidence or “attempt to discredit the evidence with testimony from a rebuttal expert.” Stay tuned to this blog for updates on how representative evidence is used or rejected by federal courts going forward.