Tyson Foods, Inc. v. Bouaphakeo

Tyson Foods, Inc. v. Bouaphakeo
Argued 10 November, 2015
Decided 22 March, 2016
Full case name Tyson Foods, Inc., Petitioner v. Peg Bouaphakeo, et al., Individually and on Behalf of All Others Similarly Situated
Docket nos. 14-1146
Citations 577 U.S. ___ (more)
136 S. Ct. 1036; 194 L. Ed. 2d 124; 2016 U.S. LEXIS 2134
Argument Oral argument
Prior history Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th Cir. 2014)
Holding
The district court did not err in certifying and maintaining a class of employees who allege that the employer’s failure to pay them for donning and doffing protective gear violate the Fair Labor Standards Act, notwithstanding the employees’ reliance on “representative evidence” to determine the number of additional hours that each employee worked, when the employer had failed to keep adequate records.
Court membership
Chief Justice
John Roberts
Associate Justices
Anthony Kennedy · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan
Case opinions
Majority Kennedy, joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan
Concurrence Roberts, joined by Alito (joined as to Part II)
Dissent Thomas, joined by Alito

Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___ (2016),[1] was a United States Supreme Court case in which the Court affirmed the decision of the United States Court of Appeals for the Eighth Circuit, which held that representative evidence could be used to support the claims of the class.[2] The case arose as a class action lawsuit against Tyson Foods. The Supreme Court affirmed the Eighth Circuit's judgment that the class satisfied the predominance requirement of the Federal Rules of Civil Procedure Rule 23, and that the use of representative evidence was allowable in this case. The case has been cited by lower courts and has spawned significant academic discussion.

Facts and Procedural History

Tyson Foods employees brought suit in federal district court against Tyson Foods for violations of the Fair Labor Standards Act (FLSA) and the Iowa Wage Payment Collection Law.[3] The employees worked in an Iowa pork processing plant in the cut and retrim and kill departments.[3] As part of their work, the employees needed to wear protective gear, and the FLSA required that they be compensated for time spent doing things “integral and indispensable” to their work.[3] The employees claimed that the time spent putting on and taking off their protective gear—“donning and doffing”—met this standard, and Tyson Foods should have been paying them for the time they spent doing so.[3] Instead, Tyson Foods compensated some employees for four to eight minutes of this activity and others for none at all.[3] The employees sought to certify their class under Rule 23 of the Federal Rules of Civil Procedure.[3] Tyson Foods argued that the class should not be certified because of the individual variance in the employees’ protective gear.[4]

The district court held that there were sufficiently common questions so as to certify the class; for example, whether the donning and doffing qualified as work under the FLSA. [5] The case was tried and went to a jury.[5] The jury had to decide whether the donning and doffing qualified as work, and how much time it took that was not currently being paid by Tyson Foods.[5] The claims were based on overtime work, so only employees who, after including donning and doffing time, worked more than forty hours per week would be able to recover.[5] But Tyson Foods did not keep records of the time that each employee spent putting on and taking off their protective gear.[5] The employees, therefore, relied on employee statements, videos of people putting on and taking off protective gear, and a research study.[5] The study had people put on and take off gear, and averaged how long it took, which was considered “representative evidence.”[6] Tyson Foods asked the judge to bifurcate proceedings so that the jury would first answer whether the FLSA covered time it took to put on and take off protective gear and how long the donning and doffing took, and then the jury would determine which employees would be eligible to recover.[7] But Tyson Foods did not question the representative evidence used—for example, by moving for a Daubert hearing—and instead emphasized that there was too much individual variance for the issues to be resolved in a class.[7] The representative evidence presented would have supported an award of $6.7 million.[7] The jury found that donning and doffing was compensable under the FLSA, but only awarded $2.9 million to the class.[7]

Tyson moved to set aside the jury verdict, alleging improper class certification.[7] The Court of Appeals for the Eighth Circuit disagreed and affirmed the judgment.[8][7] It held that the use of representative evidence was appropriate in this case.[2]

Decision of the Court

The Supreme Court affirmed the decision of the Eighth Circuit.[9] The parties disputed whether the class met the predominance inquiry required by Federal Rule of Civil Procedure 23(b)(3).[10] Under that rule, the district court must ask whether common questions predominate over individual ones.[11] This examination is meant to ensure that it makes sense to adjudicate the claims as a class.[9] The predominance inquiry is different than the commonality inquiry in class actions: it asks not simply whether there are common questions, but whether the common, class-wide issues are more important or arise more frequently than the individual ones.[9] Tyson Foods maintained that the common questions did not predominate because the questions of each individual’s work time predominated.[11] The employees, by contrast, argued that the representative evidence could be used in lieu of individual inquiries.[11] The permissibility of the representative evidence, therefore, was central to the case.[12] The Court looked to the practical need for representative evidence—recognizing that in some cases it is the only evidence available.[13] Here, Tyson Foods had failed to keep records on employee time, so representative evidence was needed.[13] The key inquiry, according to the Court, was whether the employees would have similarly used the representative evidence in individual lawsuits, if they had brought individual suits instead of a class action.[13] It was on this point that the Court distinguished Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In Wal-Mart, the class failed to meet the more basic commonality requirement of class actions.[14] The plaintiffs wanted to use representative evidence to show that there was a common policy of discretion in employment.[14] But in that case, the employees were not similarly situated, so they would not have been able to use the representative evidence even if they had brought individual lawsuits.[14] Here, however, the representative evidence could be used to support a finding for individual plaintiffs.[14]

The Court noted that Tyson Foods did not challenge the expert testimony or the study on which the plaintiffs relied.[15] Tyson Foods did additionally argue that, because not all class members would be found to be injured and receive compensation, the employees needed to show a clear mechanism by which the district court could identify which class members were not injured and should not recover.[16] This question was not presented in the courts below and the record was not developed on this point, however, so the Court remanded for further proceedings on that matter.[17]

Concurrence

Chief Justice Roberts concurred, joined by Justice Alito in Part II.[18] In Part I, the Chief suggested that the Court in this case was not relaxing rules for representative evidence, but had found that the study met the required standard of proof.[19] In Part II, the Chief (joined by Justice Alito), expressed concern that there is no clear way to determine how much time the jury thought should be compensated for donning and doffing, since they awarded a sum lower than the study suggested was appropriate.[19] To be compensated, each employee must have gone uncompensated for some of the donning and doffing time, and must have worked overtime once that time is factored in.[20] But the jury did not report how much time they found should be compensated for the different departments, so it is unclear how the district court would be able to award damages only to employees the jury found were injured.[21]

Dissent

Justice Thomas dissented, joined by Justice Alito.[22] The dissent believed the district court was wrong in finding that the class satisfied Rule 23’s predominance requirement because it did not recognize that whether each employee worked overtime was a critical individual issue.[23] Because the district court did not appropriately analyze the class certification requirements, according to the dissent, Tyson Foods could be held liable to a large group without proof that each individual within the class was injured..[23] The dissent suggested that the majority opinion improperly construed the predominance inquiry, relaxed the rule for representative evidence, and failed to adhere to prior precedent.[24]

Implications

Tyson Foods made headlines when it reached the Supreme Court.[25] Legal commentators also blogged about the case.[26]

Though a relatively recent case, Tyson Foods has already been cited in cases and been a popular topic of legal scholarship. Experts continue to discuss Tyson’s legacy—in particular, how the case will impact the predominance inquiry, and whether the use of representative evidence will expand.

Selected Supreme Court and Federal Courts of Appeals Cases

Selected Scholarship

Selected Treatises and Manuals

  • ANNOTATED MANUAL FOR COMPLEX LITIGATION § 21.28 (4th ed., May 2018) (noting that in Tyson Foods, the Court held that representative evidence could be used to satisfy the class certification predominance inquiry).
  • NEWBERG ON CLASS ACTIONS § 4:50 (5th ed., Dec. 2017) (citing Tyson Foods for the definition of an individual question).
  • 5 FED. PROC. FORMS § 11:32 (citing Tyson Foods for a description of the predominance inquiry).

See also

References

  1. ↑ Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 577 U.S. ___, 136 S. Ct. 1036 (2016).
  2. 1 2 Tyson Foods, 136 S. Ct. at 1044-45.
  3. 1 2 3 4 5 6 Tyson Foods, 136 S. Ct. at 1042.
  4. ↑ Tyson Foods, 136 S. Ct. at 1042-43.
  5. 1 2 3 4 5 6 Tyson Foods, 136 S. Ct. at 1043.
  6. ↑ Tyson Foods, 136 S. Ct. at 1043-44.
  7. 1 2 3 4 5 6 Tyson Foods, 136 S. Ct. at 1044.
  8. ↑ Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th Cir. 2014).
  9. 1 2 3 Tyson Foods, 136 S. Ct. at 1045.
  10. ↑ Tyson Foods, 136 S. Ct. at 1045-46.
  11. 1 2 3 Tyson Foods, 136 S. Ct. at 1046.
  12. ↑ Tyson Foods, 136 S. Ct. at 1046-47.
  13. 1 2 3 Tyson Foods, 136 S. Ct. at 1047.
  14. 1 2 3 4 Tyson Foods, 136 S. Ct. at 1048.
  15. ↑ Tyson Foods, 136 S. Ct. at 1049.
  16. ↑ Tyson Foods, 136 S. Ct. at 1049-50.
  17. ↑ Tyson Foods, 136 S. Ct. at 1050.
  18. ↑ Tyson Foods, 136 S. Ct. at 1050 (Roberts, C.J., concurring in part).
  19. 1 2 Tyson Foods, 136 S. Ct. at 1051 (Roberts, C.J., concurring in part).
  20. ↑ Tyson Foods, 136 S. Ct. at 1051-52 (Roberts, C.J., concurring in part).
  21. ↑ Tyson Foods, 136 S. Ct. at 1052-53 (Roberts, C.J., concurring in part).
  22. ↑ Tyson Foods, 136 S. Ct. at 1053 (Thomas, J., dissenting).
  23. 1 2 Tyson Foods, 136 S. Ct. at 1054 (Thomas, J., dissenting).
  24. ↑ Tyson Foods, 136 S. Ct. at 1056 (Thomas, J., dissenting).
  25. ↑ Adam Liptak, Supreme Court Hears Case for Tyson Foods Class-Action Lawsuit, THE N.Y. TIMES (Nov. 10, 2015), https://www.nytimes.com/2015/11/11/business/supreme-court-hears-tyson-foods-class-action-labor-case.html; Adam Liptak, Supreme Court Upholds Worker Class-Action Suit Against Tyson, THE N.Y. TIMES (Mar. 22, 2016), https://www.nytimes.com/2016/03/23/business/supreme-court-upholds-worker-class-action-suit-against-tyson.html.
  26. ↑ Dan Kohrman et al., Supreme Court Allows Class Action to Proceed Based on “Representative” Proof, AARP FOUND., https://www.aarp.org/aarp-foundation/our-work/legal-advocacy/info-2016/Tyson-Foods-v-Bouaphakeo.html (last visited May 27, 2018); Lyle Denniston, Argument Preview: New Woe for Class-Action Lawsuits?, SCOTUSBLOG (Nov. 7, 2015, 12:33 AM), http://www.scotusblog.com/2015/11/argument-preview-new-woe-for-class-action-lawsuits/; Lyle Denniston, Argument Analysis: Big Test of Class Action—Maybe Not so Big, SCOTUSBLOG (Nov. 10, 2015, 1:48 PM), http://www.scotusblog.com/2015/11/argument-analysis-big-test-of-class-action-maybe-not-so-big/; Lyle Denniston, Opinion Analysis: Group Lawsuits get a (Modest?) Boost, SCOTUSBLOG (Mar. 22, 2016, 7:07 PM), http://www.scotusblog.com/2016/03/opinion-analysis-group-lawsuits-get-a-modest-boost/.
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