The All-Important Last Session on the Tyson Foods Opinion

The All-Important Last Section of the Tyson Foods Opinion

By Thomas Doyle, Wexler Wallace

Sometimes, the most important part of a Supreme Court opinion is widely overlooked.

Recently, the United States Supreme Court decided a high-profile class action case, Tyson Foods Inc. v. Bouaphakeo.1 That case did not involve an antitrust claim, but it did involve a larger question under Rule 23, regarding when a class plaintiff could prove a class-wide claim with representative proof.

The backdrop to the Tyson Foods case is now familiar. A group of workers at an Iowa pork processing facility sued their employer, alleging that they were owed pay for the time they spent suiting up with (and removing) required safety gear. The District Court certified the case as class action under Rule 23, and the class included more than 3,000 workers. At trial, the District Court permitted the plaintiffs to present expert testimony showing that the average worker spent 18-21 minutes on unpaid safety procedures for each shift. The jury returned a verdict for the class for $2.9 million in unpaid wages. The Eighth Circuit Court of Appeals affirmed the trial verdict, holding that the expert study provided a basis for the jury to draw reasonable inferences about the class as a whole. The Supreme Court then took the case, and lawyers everywhere watched closely to see if the case might shed light on class action procedure.

On March 22, 2016, the Supreme Court issued its decision. In the main part of the opinion, the Supreme Court declined to issue a blanket rule prohibiting evidence based on a statistical sample of a class, ruling further that a jury could rely on such a study to infer how much the entire class was owed for unpaid work. More broadly, the Court held that representative proof may be admissible in class cases, depending on the purpose for which it is offered.2

But the Supreme Court included a second question when it granted the employer’s request for certiorari review: “whether a class action may be certified or maintained under Rule 23 ... when the class contains hundreds of members who were not injured and have no legal right to any damages.” In briefing and arguing the issue in the Supreme Court, the employer contended that when a plaintiff cannot prove that 100 percent of the class suffered injury, the plaintiff seeking to bring class-wide claims must identify a mechanism “to ensure that uninjured class members (1) do not contribute to the size of any damages award and (2) cannot recover any such damages.” The Supreme Court expressly rejected that argument. Instead, the Supreme Court held that those issues were not properly raised until the disbursement stage of a class action, when the trial court would determine how to allocate the class-wide award between and among the class members.3 (Like the rest of the Tyson Foods opinion, a six-Justice majority joined in this section of the opinion.)

This last section of Tyson Foods is important. The Supreme Court ruled that the “uninjured class member” question should be deferred until the disbursement stage, because then the record will show which class members can share in a class-wide award. This means that, when deciding a pre-trial class certification motion, a trial court does not need to develop the specific procedures for class member participation in any eventual class-wide recovery.

There are at least two implications for all class actions, including antitrust class actions.

First, Tyson Foods means that a trial court should not automatically deny class certification if some of the class members did not suffer an injury. This issue has divided lower courts in recent years. The Seventh Circuit has permitted class certification even if the class likely includes some uninjured members (so long as the class definition does not include people who could not have been injured.4 But other courts have required plaintiffs to show—before certification—that the proposed class includes no uninjured members.5 After Tyson Foods, the possibility of uninjured class members should not preclude certifying or maintaining a case as a class action.

Second, Tyson Foods resolves some of the recent disagreement among the Courts of Appeals regarding “ascertainability” at the class certification stage. In recent years, the Third Circuit has adopted a set of rules that class membership must be “ascertainable” at the class certification stage, including a requirement that a plaintiff must articulate an “administratively feasible” mechanism for determining who is in the class, in order to prevent uninjured people from participating in the class-wide recovery.6 But the Seventh Circuit has rejected that rigorous “ascertainability” rule for class certification motions, concluding that the eligibility procedures for class participation can be handled best after a class-wide judgment has been entered.7 Tyson Foods now resolves at least some of that controversy. Now, a plaintiff who files a class certification motion does not need to articulate the mechanism that class members will use at the end of the case when they seek to participate in a class-wide recovery. Those procedures are best considered after the class-wide verdict, when the trial court apportions any class-wide relief.

The coverage of the Tyson Foods decision has mostly overlooked this last section of the Court’s opinion. Antitrust practitioners should study that section carefully, because it gives important guidance on uninjured class members and ascertainability. That guidance may be the most important part of the Tyson Foods decision.

Endnotes
1Tyson Foods Inc. Bouaphakeo, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016).
2136 S.Ct. at 1049, 194 L.Ed.2d at 138.
3136 S.Ct. at 1050, 194 L.Ed.2d at 138-39.
4See, e.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 824 (7th Cir. 2012).
5See, e.g., In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 252 (D.C. Cir. 2013).
6Carrera v. Bayer Corp., 727 F.3d 300, 307-11 (3rd Cir. 2013).
7Mullins v Direct Digital, LLC, 795 F.3d 654, 667-68 (7th Cir. 2015); see also Byrd v. Aaron’s Inc., 784 F.3d 154, 176-77 (3rd Cir. 2015) (concurring opinion).

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