Law School Case Brief
Tyson Foods, Inc. v. Bouaphakeo - 136 S. Ct. 1036 (2016)
Fed. R. Civ. P. 23(b)(3) requires that, before a class is certified under that subsection, a district court must find that questions of law or fact common to class members predominate over any questions affecting only individual members. The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. This calls upon courts to give careful scrutiny to the relation between common and individual questions in a case. An individual question is one where members of a proposed class will need to present evidence that varies from member to member, while a common question is one where the same evidence will suffice for each member to make a prima facie showing or the issue is susceptible to generalized, class-wide proof. The predominance inquiry asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues. When one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.
Respondents, Bouaphakeo et al., employees of petitioner Tyson Foods, worked in the kill, cut, and retrim departments of a pork processing plant in Iowa. Bouaphakeo et al.’s work required them to wear protective gear, but the exact composition of the gear depended on the tasks a worker performed on a given day. Tyson Foods, Inc. compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities. Bouaphakeo et al. filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous work and that petitioner's policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). Bouaphakeo et al. also raised a claim under an Iowa wage law. They sought certification of their state claims as a class action under Federal Rule of Civil Procedure 23 and certification of their FLSA claims as a “collective action.” Petitioner objected to certification of both classes, arguing that, because of the variance in protective gear each employee wore, the employees' claims were not sufficiently similar to be resolved on a classwide basis. The District Court concluded that common questions, such as whether donning and doffing protective gear was compensable under the FLSA, were susceptible to classwide resolution even if not all of the workers wore the same gear. To recover for a violation of the FLSA’s overtime provision, the employees had to show that they each worked more than 40 hours a week, inclusive of the time spent donning and doffing. Because Tyson Foods, Inc. failed to keep records of this time, the employees primarily relied on a study performed by an industrial relations expert, Dr. Kenneth Mericle. Mericle conducted videotaped observations analyzing how long various donning and doffing activities took, and then averaged the time taken to produce an estimate of 18 minutes a day for the cut and retrim departments and 21.25 minutes for the kill department. These estimates were then added to the timesheets of each employee to ascertain which class members worked more than 40 hours a week and the value of classwide recovery. Tyson Foods, Inc. argued that the varying amounts of time it took employees to don and doff different protective gear made reliance on Mericle's sample improper, and that its use would lead to recovery for individuals who, in fact, had not worked the requisite 40 hours. The jury awarded the class about $2.9 million in unpaid wages. The award had not yet been disbursed to individual employees. On appeal, the Eighth Circuit affirmed the judgment and the award.
Was class certification proper?
The Court held that class certification was appropriate under Fed. R. Civ. P. 23(b)(3) where the employees' reliance on an expert's study as to how long various donning and doffing activities took did not deprive the employer of its ability to litigate individual defenses to the FLSA action, and the study could have been sufficient to sustain a jury finding as to hours worked if introduced in each employee's action. Moreover, it noted that in a case where representative evidence was relevant in proving a plaintiff’s individual claim, that evidence could not be deemed improper merely because the claim was brought on behalf of a class. When the concern about the proposed class was that it exhibited a fatal similarity, an alleged failure of proof as to an element of the plaintiffs’ cause of action, courts were to engage that question as a matter of summary judgment, not class certification.
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