Tyson Foods One Year Later—Representative Evidence in Class Actions.
Last year in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), the Supreme Court endorsed use of representative evidence to establish liability in a Fair Labor Standards Act collective and class action. Noting that “[e]vidence of this type is used in various substantive realms of the law,” the Supreme Court held 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 elements of the underlying cause of action.’” As the Court said,“[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data,’” and “[i]n a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class.” The Court also noted that “[o]nce a district court finds evidence to be admissible, its persuasiveness is, in general, a matter for the jury.”
In the short period since Tyson Foods was decided, lower courts have begun applying its holdings in a number of disputes:
- In Bernstein v. Virgin America, Inc., No. 15-CV-02277-JST, 2016 WL 6576621 (N.D. Cal. Nov. 7, 2016), the court, citing Tyson Foods, approved survey evidence in a wage and hour case to establish the average time spent performing unpaid tasks for which the employer did not keep adequate records, such as time class members spent taking mandatory drug tests. Similarly, in Ridgeway v. Wal-Mart Stores, Inc., No. 08-CV-05221-SI, 2016 WL 4529430 (N.D. Cal. Aug. 30, 2016), another wage and hour case where the employer failed to record time spent performing unpaid tasks, the court also accepted representative liability evidence and noted that, where an employer fails to keep adequate records, a representative sample may be the only practical means for employees to establish liability.
- By contrast, in two other wage and hour actions, lower courts determined that variations in the defendants’ procedures across different company offices made use of representative evidence inappropriate: In Davenport v. Charter Communications, LLC, No. 4:12CV00007 AGF, 2017 WL 878029 (E.D. Mo. Mar. 6, 2017), the court denied the plaintiffs’ attempt to establish liability through a study that determined average unpaid time spent turning computers on and off and loading required programs. The court reasoned that, because of variations in the defendant’s procedures across its offices, no plaintiff could rely on another plaintiff’s experience to establish how he or she clocked in or out. And in Arnold v. DirecTV, LLC, No. 4:10-CV-352-JAR, 2017 WL 1251033 (E.D. Mo. Mar. 31, 2017), the court denied the plaintiffs’ attempt to establish liability through representative evidence, because the defendant’s allegedly illegal pay practices varied across subclasses and from plaintiff to plaintiff. The court found these variations precluded the reliability of representative evidence to determine if any particular class member had been injured by the challenged practices.
- Another court assessing a wage and hour claim found the propriety of representative evidence turned largely on the extent of the defendant company’s obligation to maintain records. In Atis v. Freedom Mortgage Corp., No. CV 15-3424 (RBK/JS), 2016 WL 7440465 (D.N.J. Dec. 27, 2016), the court reasoned that Tyson Foods found representative evidence appropriate because the employer violated its duty to record employee hours. Finding that the defendant in Atis owed no similar obligation to track hours worked, the court concluded Tyson Foods was inapposite and rejected the use of representative evidence.
- In In re: Syngenta AG MIR 162 Corn Litigation, No. 14-MD-2591-JWL, 2016 WL 5371856 (D. Kan. Sept. 26, 2016), the court, citing Tyson Foods, allowed the plaintiffs to show classwide liability and damages through representative evidence a class action under the Lanham Act and various state laws. The holding was guided by the court’s determination that the plaintiffs could have relied on the representative evidence to show liability and damages in an individual suit.