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SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1146
_________________
TYSON FOODS, INC., PETITIONER
v. PEG
BOUAPHAKEO, et al., individually and on behalfof all others
similarly situated
on writ of certiorari to the united states
court of appeals for the eighth circuit
[March 22, 2016]
Justice Kennedy delivered the opinion of the
Court.
Following a jury trial, a class of employees
recovered $2.9 million in compensatory damages from their employer
for a violation of the Fair Labor Standards Act of 1938 (FLSA),
52Stat. 1060, as amended, 29 U. S. C. §201
et seq. The employees’ primary grievance was that they
did not receive statutorily mandated overtime pay for time spent
donning and doffing protective equipment.
The employer seeks to reverse the judgment. It
makes two arguments. Both relate to whether it was proper to permit
the employees to pursue their claims as a class. First, the
employer argues the class should not have been certified because
the primary method of proving injury assumed each employee spent
the same time donning and doffing protective gear, even though
differences in the composition of that gear may have meant that, in
fact, employees took different amounts of time to don and doff.
Second, the employer argues certification was improper because the
damages awarded to the class may be distributed to some persons who
did not work any uncompensated overtime.
The Court of Appeals for the Eighth Circuit
concluded there was no error in the District Court’s decision to
cer-tify and maintain the class. This Court granted certiorari. 576
U. S. ___ (2015).
I
Respondents are employees at petitioner Tyson
Foods’ pork processing plant in Storm Lake, Iowa. They work in the
plant’s kill, cut, and retrim departments, where hogs are
slaughtered, trimmed, and prepared for shipment. Grueling and
dangerous, the work requires employees to wear certain protective
gear. The exact composition of the gear depends on the tasks a
worker performs on a given day.
Until 1998, employees at the plant were paid
under a system called “gang-time.” This compensated them only for
time spent at their workstations, not for the time required to put
on and take off their protective gear. In response to a
federal-court injunction, and a Department of Labor suit to enforce
that injunction, Tyson in 1998 began to pay all its employees for
an additional four minutes a day for what it called “K-code time.”
The4-minute period was the amount of time Tyson estimated employees
needed to don and doff their gear. In 2007, Tyson stopped paying
K-code time uniformly to all employees. Instead, it compensated
some employees for between four and eight minutes but paid others
nothing beyond their gang-time wages. At no point did Tyson record
the time each employee spent donning and doffing.
Unsatisfied by these changes, respondents filed
suit in the United States District Court for the Northern District
of Iowa, alleging violations of the FLSA. The FLSA requires that a
covered employee who works more than 40 hours a week receive
compensation for excess time worked “at a rate not less than one
and one-half times the regular rate at which he is employed.” 29
U. S. C. §207(a). In 1947, nine years after the FLSA was
first enacted, Congress passed the Portal-to-Portal Act, which
clarified that compensable work does not include time spent walking
to and from the employee’s workstation or other “preliminary or
postliminary activities.” §254(d). The FLSA, however, still
requires employers to pay employees for activities “integral and
indispensable” to their regular work, even if those activities do
not occur at the employee’s workstation.
Steiner v.
Mitchell, 350 U. S. 247, 249, 255 (1956) . The FLSA
also requires an employer to “make, keep, and preserve . . .
records of the persons employed by him and of the wages, hours, and
other conditions and practices of employment.” §211(c).
In their complaint, respondents alleged that
donning and doffing protective gear 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
FLSA. Respondents also raised a claim under the Iowa Wage Payment
Collection Law. This statute provides for recovery under state law
when an employer fails to pay its employees “all wages due,” which
includes FLSA-mandated overtime. Iowa Code §91A.3 (2013); cf.
Anthony v.
State, 632 N. W. 2d 897, 901–902
(Iowa 2001).
Respondents sought certification of their Iowa
law claims as a class action under Rule 23 of the Federal Rules of
Civil Procedure. Rule 23 permits one or more individ-uals to sue as
“representative parties on behalf of all mem-bers” of a class if
certain preconditions are met. Fed. Rule Civ. Proc. 23(a).
Respondents also sought certification of their federal claims as a
“collective action” under 29 U. S. C. §216. Section 216
is a provision of the FLSA that permits employees to sue on behalf
of “themselves and other employees similarly situated.”
§216(b).
Tyson objected to the certification of both
classes on the same ground. It contended 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 rejected that position. It concluded
there were common questions susceptible to classwide resolution,
such as “whether the donning and doffing of [protective gear] is
considered work under the FLSA, whether such work is integral and
[in]dispensable, and whether any compensable work is
de
minim[i]s.” 564 F. Supp. 2d 870, 899 (ND Iowa 2008). The
District Court acknowledged that the workers did not all wear the
same protective gear, but found that “when the putative plaintiffs
are limited to those that are paid via a gang time system, there
are far more factual similarities than dissimilarities.”
Id., at 899–900. As a result, the District Court certified
the following classes:
“All current and former employees of
Tyson’s Storm Lake, Iowa, processing facility who have been
employed at any time from February 7, 2004 [in the case of the FLSA
collective action and February 7, 2005, in the case of the
state-law class action], to the present, and who are or were paid
under a ‘gang time’ compensation system in the Kill, Cut, or Retrim
departments.”
Id., at 901.
The only difference in definition between the
classes was the date at which the class period began. The size of
the class certified under Rule 23, however, was larger than that
certified under §216. This is because, while a class under Rule 23
includes all unnamed members who fall within the class definition,
the “sole consequence of conditional certification [under §216] is
the sending of court-approved written notice to employees . . . who
in turn become parties to a collective action only by filing
written consent with the court.”
Genesis HealthCare Corp. v.
Symczyk, 569 U. S. ___, ___ (2013) (slip op., at 8). A
total of 444 employees joined the collective action, while the Rule
23 class contained 3,344 members.
The case proceeded to trial before a jury. The
parties stipulated that the employees were entitled to be paid for
donning and doffing of certain equipment worn to protect from knife
cuts. The jury was left to determine whether the time spent donning
and doffing other protective equipment was compensable; whether
Tyson was required to pay for donning and doffing during meal
breaks; and the total amount of time spent on work that was not
compensated under Tyson’s gang-time system.
Since the employees’ claims relate only to
overtime, each employee had to show he or she worked more than 40
hours a week, inclusive of time spent donning and doffing, in order
to recover. As a result of Tyson’s failure to keep records of
donning and doffing time, however, the employees were forced to
rely on what the parties describe as “representative evidence.”
This evidence included employee testimony, video recordings of
donning and doffing atthe plant, and, most important, a study
performed by an industrial relations expert, Dr. Kenneth Mericle.
Mericle conducted 744 videotaped observations and analyzed how long
various donning and doffing activities took. He then averaged the
time taken in the observations to produce an estimate of 18 minutes
a day for the cut and retrim departments and 21.25 minutes for the
kill department.
Although it had not kept records for time spent
donning and doffing, Tyson had information regarding each
employee’s gang-time and K-code time. Using this data, the
employees’ other expert, Dr. Liesl Fox, was able to estimate the
amount of uncompensated work each employee did by adding Mericle’s
estimated average donning and doffing time to the gang-time each
employee worked and then subtracting any K-code time. For example,
if an employee in the kill department had worked 39.125 hours of
gang-time in a 6-day workweek and had been paid an hour of K-code
time, the estimated number of compensable hours the employee worked
would be: 39.125 (individual number of gang-time hours
worked) + 2.125 (the average donning and doffing hours
for a 6-day week, based on Mericle’s estimated average of 21.25
minutes a day) – 1 (K-code hours) = 40.25. That
would mean the employee was being undercompensated by a quarter of
an hour of overtime a week, in violation of the FLSA. On the other
hand, if the employee’s records showed only 38 hours of gang-time
and an hour of K-code time, the calculation would be:
38 + 2.125 – 1 = 39.125. Having
worked less than 40 hours, that employee would not be entitled to
overtime pay and would not have proved an FLSA violation.
Using this methodology, Fox stated that 212
employees did not meet the 40-hour threshold and could not recover.
The remaining class members, Fox maintained, had potentially been
undercompensated to some degree.
Respondents proposed to bifurcate proceedings.
They requested that, first, a trial be conducted on the questions
whether time spent in donning and doffing was compensable work
under the FLSA and how long those activities took to perform on
average; and, second, that Fox’s methodology be used to determine
which employees suffered an FLSA violation and how much each was
entitled to recover. Petitioner insisted upon a single proceeding
in whichdamages would be calculated in the aggregate and by the
jury. The District Court submitted both issues of liability and
damages to the jury.
Petitioner did not move for a hearing regarding
the statistical validity of respondents’ studies under
Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509
U. S. 579 (1993) , nor did it attempt to discredit the
evidence with testimony from a rebuttal expert. Instead, as it had
done in its opposition to class certification, petitioner argued to
the jury that the varying amounts of time it took employees to don
and doff different protective equipment made the lawsuit too
speculative for classwide recovery. Petitioner also argued that
Mericle’s study overstated the average donning and doffing time.
The jury was in-structed that nontestifying members of the class
could only recover if the evidence established they “suffered the
same harm as a result of the same unlawful decision or policy.”
App. 471–472.
Fox’s calculations supported an aggregate award
of approximately $6.7 million in unpaid wages. The jury returned a
special verdict finding that time spent in donning and doffing
protective gear at the beginning and end of the day was compensable
work but that time during meal breaks was not. The jury more than
halved the damages recommended by Fox. It awarded the class about
$2.9 million in unpaid wages. That damages award has not yet been
disbursed to the individual employees.
Tyson moved to set aside the jury verdict,
arguing, among other things, that, in light of the variation in
donning and doffing time, the classes should not have been
certified. The District Court denied Tyson’s motion, and the Court
of Appeals for the Eighth Circuit affirmed the judgment and the
award.
The Court of Appeals recognized that a verdict
for the employees “require[d] inference” from their representative
proof, but it held that “this inference is allowable under
Anderson v.
Mt. Clemens Pottery Co., 328 U. S.
680 –688 (1946).” 765 F. 3d 791, 797 (2014). The Court of Appeals
rejected petitioner’s challenge to the sufficiency of the evidence
for similar reasons, holding that, under the facts of this case,
the jury could have drawn “a ‘reasonable inference’ of class-wide
liability.”
Id., at 799 (quoting
Anderson v.
Mt.
Clemens Pottery Co., 328 U. S. 680, 687 (1946) ). Judge
Beam dissented, stating that, in his view, the class should not
have been certified.
For the reasons that follow, this Court now
affirms.
II
Petitioner challenges the class certification
of the state- law claims and the certification of the FLSA
collective action. The parties do not dispute that the standard for
certifying a collective action under the FLSA is no more stringent
than the standard for certifying a class under the Federal Rules of
Civil Procedure. This opinion assumes, without deciding, that this
is correct. For purposes of this case then, if certification of
respondents’ class action under the Federal Rules was proper,
certification of the collective action was proper as well.
Furthermore, as noted above, Iowa’s Wage Payment
Collection Law was used in this litigation as a state-law mechanism
for recovery of FLSA-mandated overtime pay. The parties do not
dispute that, in order to prove a violation of the Iowa statute,
the employees had to do no more than demonstrate a violation of the
FLSA. In this opinion, then, no distinction is made between the
requirements for the class action raising the state-law claims and
the collective action raising the federal claims.
A
Federal Rule of Civil Procedure 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
.”
Amchem Products, Inc. v.
Windsor, 521 U. S. 591, 623 (1997) . 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.” 2 W. Rubenstein, Newberg on Class Actions §4:50,
pp. 196–197 (5th ed. 2012) (internal quotation marks omitted). 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.”
Id., §4:49, at 195–196. 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.” 7AA C. Wright, A. Miller, &
M. Kane, Federal Practice and Procedure §1778, pp. 123–124 (3d ed.
2005) (footnotes omitted).
Here, the parties do not dispute that there are
important questions common to all class members, the most
significant of which is whether time spent donning and doffing the
required protective gear is compensable work under the FLSA. Cf.
IBP, Inc. v.
Alvarez, 546 U. S. 21 (2005)
(holding that time spent walking between the locker room and the
production area after donning protective gear is compensable work
under the FLSA). To be entitled to recovery, however, each employee
must prove that the amount of time spent donning and doffing, when
added to his or her regular hours, amounted to more than 40 hours
in a given week. Petitioner argues that these necessarily
person-specific inquiries into individual work time predominate
over the common questions raised by respondents’ claims, making
class certification improper.
Respondents counter that these individual
inquiries are unnecessary because it can be assumed each employee
donned and doffed for the same average time observed in Mericle’s
sample. Whether this inference is permissible becomes the central
dispute in this case. Petitioner contends that Mericle’s study
manufactures predominance by assuming away the very differences
that make the case inappropriate for classwide resolution. Reliance
on a representative sample, petitioner argues, absolves each
employee of the responsibility to prove personal injury, and thus
deprives petitioner of any ability to litigate its defenses to
individual claims.
Calling this unfair, petitioner and various of
its
amici maintain that the Court should announce a broad
rule against the use in class actions of what the parties call
representative evidence. A categorical exclusion of that sort,
however, would make little sense. A representative or statistical
sample, like all evidence, is a means to establish or defend
against liability. 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. See Fed. Rules Evid.
401, 403, and 702.
It follows that the Court would reach too far
were it to establish general rules governing the use of statistical
evidence, or so-called representative evidence, in all class-
action cases. Evidence of this type is used in various substantive
realms of the law. Brief for Complex Litigation Law Professors as
Amici Curiae 5–9; Brief for Economists et al. as
Amici Curiae 8–10. Whether 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,”
Erica P. John Fund, Inc. v.
Halliburton Co., 563 U. S. 804, 809 (2011) .
In many cases, a representative sample is “the
only practicable means to collect and present relevant data”
establishing a defendant’s liability. Manual of Complex Litigation
§11.493, p. 102 (4th ed. 2004). In a case where representative
evidence is relevant in proving a plaintiff’s individual claim,
that evidence cannot be deemed im-proper merely because the claim
is brought on behalf of a class. To so hold would ignore the Rules
Enabling Act’s pellucid instruction that use of the class device
cannot “abridge . . . any substantive right.” 28
U. S. C. §2072(b).
One way for respondents to show, then, that the
sample relied upon here is a permissible method of proving
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. If the sample could have sustained a
reasonable jury finding as to hours worked in each employee’s
individual action, that sample is a permissible means of
establishing the employees’ hours worked in a class action.
This Court’s decision in
Anderson v.
Mt. Clemens explains why Mericle’s sample was permissible in
the circumstances of this case. In
Mt. Clemens, 7 employees
and their union, seeking to represent over 300 others, brought a
collective action against their employer for failing to compensate
them for time spent walking to and from their workstations. The
variance in walking time among workers was alleged to be upwards of
10 minutes a day, which is roughly consistent with the variances in
donning and doffing times here. 328 U. S., at 685.
The Court in
Mt. Clemens held that when
employers violate their statutory duty to keep proper records, and
employees thereby have no way to establish the time spent doing
uncompensated work, the “remedial nature of [the FLSA] and the
great public policy which it embodies . . . militate
against making” the burden of proving uncompensated work “an
impossible hurdle for the employee.”
Id., at 687; see also
Hoffmann-La Roche Inc. v.
Sperling, 493 U. S.
165, 173 (1989) (“The broad remedial goal of the statute should be
enforced to the full extent of its terms”). Instead of punishing
“the employee by denying him any recovery on the ground that he is
unable to prove the precise extent of uncompensated work,” the
Court held “an employee has carried out his burden if he proves
that he has in fact performed work for which he was improperly
compensated and if he produces sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable
inference.” 328 U. S., at 687. Under these circumstances,
“[t]he burden then shifts to the employer to come forward with
evidence of the precise amount of work performed or with evidence
to negative the reasonableness of the inference to be drawn from
the employee’s evidence.”
Id., at 687–688.
In this suit, as in
Mt. Clemens,
respondents sought to introduce a representative sample to fill an
evidentiary gap created by the employer’s failure to keep adequate
records. If the employees had proceeded with 3,344 individual
lawsuits, each employee likely would have had to introduce
Mericle’s study to prove the hours he or she worked. Rather than
absolving the employees from proving individual injury, the
representative evidence here was a permissible means of making that
very showing.
Reliance on Mericle’s study did not deprive
petitioner of its ability to litigate individual defenses. Since
there were no alternative means for the employees to establish
their hours worked, petitioner’s primary defense was to show that
Mericle’s study was unrepresentative or inaccurate. That defense is
itself common to the claims made by all class members. Respondents’
“failure of proof on th[is] common question” likely would have
ended “the litigation and thus [would not have] cause[d] individual
questions . . . to overwhelm questions common to the
class.”
Amgen Inc. v.
Connecticut Retirement Plans and
Trust Funds, 568 U. S. ___, ___ (2013) (slip op., at 11).
When, as here, “the concern about the proposed class is not that it
exhibits some fatal dissimilarity but, rather, a fatal
similarity—[an alleged] failure of proof as to an element of the
plaintiffs’ cause of action—courts should engage that question as a
matter of summary judgment, not class certification.” Nagareda,
Class Certification in the Age of Aggregate Proof, 84
N. Y. U. L. Rev. 97, 107 (2009)
.
Petitioner’s reliance on
Wal-Mart Stores,
Inc. v.
Dukes, 564 U. S. 338 (2011) , is misplaced.
Wal-Mart does not stand for the broad proposition that a
representative sample is an impermissible means of establishing
classwide liability.
Wal-Mart involved a nationwide Title VII
class of over 11∕2 million employees. In reversing class
certification, this Court did not reach Rule 23(b)(3)’s
predominance prong, holding instead that the class failed to meet
even Rule 23(a)’s more basic requirement that class members share a
common question of fact or law. The plaintiffs in
Wal-Mart
did not provide significant proof of a common policy of
discrimination to which each employee was subject. “The only
corporate policy that the plaintiffs’ evidence convincingly
establishe[d was] Wal-Mart’s ‘policy’ of allowing discretion by
local supervisors over employment matters”; and even then, the
plaintiffs could not identify “a common mode of exercising
discretion that pervade[d] the entire company.”
Id., at
355–356 (emphasis deleted).
The plaintiffs in
Wal-Mart proposed to
use representative evidence as a means of overcoming this absence
of a common policy. Under their proposed methodology, a “sample set
of the class members would be selected, as to whom liability for
sex discrimination and the backpay owing as a result would be
determined in depositions supervised by a master.”
Id., at
367. The aggregate damages award was to be derived by taking the
“percentage of claims determined to be valid” from this sample and
applying it to the rest of the class, and then multiplying the
“number of (presumptively) valid claims” by “the average backpay
award in the sample set.”
Ibid. The Court held that this
“Trial By Formula” was contrary to the Rules Enabling Act because
it “ ‘enlarge[d]’ ” the class members’
“ ‘substantive right[s]’ ” and deprived defendants of
their right to litigate statutory defenses to individual claims.
Ibid.
The Court’s holding in the instant case is in
accord with
Wal-Mart. The underlying question in
Wal-Mart, as here, was whether the sample at issue could
have been used to establish liability in an individual action.
Since the Court held that the employees were not similarly
situated, none of them could have prevailed in an individual suit
by relying on depositions detailing the ways in which other
employees were discriminated against by their particular store
managers. By extension, if the employees had brought 11∕2 million
individual suits, there would be little or no role for
representative evidence. Permitting the use of that sample in a
class action, therefore, would have violated the Rules Enabling Act
by giving plaintiffs and defendants different rights in a class
proceeding than they could have asserted in an individual
action.
In contrast, the study here could have been
sufficient to sustain a jury finding as to hours worked if it were
introduced in each employee’s individual action. While the
experiences of the employees in
Wal-Mart bore little
relationship to one another, in this case each employee worked in
the same facility, did similar work, and was paid under the same
policy. As
Mt. Clemens confirms, under these circumstances
the experiences of a subset of employees can be probative as to the
experiences of all of them.
This is not to say that all inferences drawn
from representative evidence in an FLSA case are “just and
reason-able.”
Mt. Clemens, 328 U. S., at 687.
Representativeevidence that is statistically inadequate or based on
implausible assumptions could not lead to a fair or accurate
estimate of the uncompensated hours an employee has worked.
Petitioner, however, did not raise a challenge to respondents’
experts’ methodology under
Daubert; and, as a result, there
is no basis in the record to conclude it was legal error to admit
that evidence.
Once a district court finds evidence to be
admissible, its persuasiveness is, in general, a matter for the
jury. Reasonable minds may differ as to whether the average time
Mericle calculated is probative as to the time actually worked by
each employee. Resolving that question, however, is the
near-exclusive province of the jury. The District Court could have
denied class certification on this ground only if it concluded that
no reasonable juror could have believed that the employees spent
roughly equal time donning and doffing. Cf.
Anderson v.
Liberty Lobby, Inc., 477 U. S. 242 –252 (1986). The
District Court made no such finding, and the record here provides
no basis for this Court to second-guess that conclusion.
The Court reiterates that, while petitioner,
respondents, or their respective
amici may urge adoption of
broad and categorical rules governing the use of representative and
statistical evidence in class actions, this case provides no
occasion to do so. Whether a representative sample may be used to
establish classwide liability will depend on the purpose for which
the sample is being introduced and on the underlying cause of
action. In FLSA actions, inferring the hours an employee has worked
from a study such as Mericle’s has been permitted by the Court so
long as the study is otherwise admissible.
Mt. Clemens,
supra, at 687; see also Fed. Rules Evid. 402 and 702. The
fairness and utility of statistical methods in contexts other than
those presented here will depend on facts and circumstances
particular to those cases.
B
In its petition for certiorari petitioner
framed its second question presented as whether a class may be
certified if it contains “members who were not injured and have no
legal right to any damages.” Pet. for Cert. i. In its merits brief,
however, petitioner reframes its argument. It now concedes that
“[t]he fact that federal courts lack authority to compensate
persons who cannot prove injury does not mean that a class action
(or collective action) can never be certified in the absence of
proof that all class members were injured.” Brief for Petitioner
49. In light of petitioner’s abandonment of its argument from the
petition, the Court need not, and does not, address it.
Petitioner’s new argument is that, “where class
plaintiffs cannot offer” proof that all class members are injured,
“they must demonstrate instead that there is some mechanism to
identify the uninjured class members prior to judgment and ensure
that uninjured members (1) do not contribute to the size of any
damage award and (2) cannot recover such damages.”
Ibid.
Petitioner contends that respondents have not demonstrated any
mechanism for ensuring that uninjured class members do not recover
damages here.
Petitioner’s new argument is predicated on the
assumption that the damages award cannot be apportioned so that
only those class members who suffered an FLSA violation recover.
According to petitioner, because Fox’s mechanism for determining
who had worked over 40 hours depended on Mericle’s estimate of
donning and doffing time, and because the jury must have rejected
Mericle’s estimate when it reduced the damages award by more than
half, it will not be possible to know which workers are entitled to
share in the award.
As petitioner and its
amici stress, the
question whether uninjured class members may recover is one of
great importance. See,
e.g., Brief for Consumer Data
Industry Association as
Amicus Curiae. It is not, however, a
question yet fairly presented by this case, because the damages
award has not yet been disbursed, nor does the record indicate how
it will be disbursed.
Respondents allege there remain ways of
distributing the award to only those individuals who worked more
than 40 hours. For example, by working backwards from the damages
award, and assuming each employee donned and doffed for an
identical amount of time (an assumption that follows from the
jury’s finding that the employees suffered equivalent harm under
the policy), it may be possible to calculate the average donning
and doffing time the jury necessarily must have found, and then
apply this figure to each employee’s known gang-time hours to
determine which employees worked more than 40 hours.
Whether that or some other methodology will be
successful in identifying uninjured class members is a question
that, on this record, is premature. Petitioner may raise a
challenge to the proposed method of allocation when the case
returns to the District Court for disbursal of the award.
Finally, it bears emphasis that this problem
appears to be one of petitioner’s own making. Respondents proposed
bifurcating between the liability and damages phases of this
proceeding for the precise reason that it may be difficult to
remove uninjured individuals from the class after an award is
rendered. It was petitioner who argued against that option and now
seeks to profit from the difficulty it caused. Whether, in light of
the foregoing, any error should be deemed invited, is a question
for the District Court to address in the first instance.
* * *
The judgment of the Court of Appeals for the
Eighth Circuit is affirmed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.