SUPREME COURT OF THE UNITED STATES
TYSON FOODS, INC., PETITIONER v.
BOUAPHAKEO, et al., individually and on behalfof all others
on writ of certiorari to the united states
court of appeals for the eighth circuit
[March 22, 2016]
Justice Thomas, with whom Justice Alito joins,
Our precedents generally prohibit plaintiffs
from maintaining a class action when an important element of
liability depends on facts that vary among individual class
members. This case concerns whether and when class-action
plaintiffs can overcome that general rule by using representative
evidence as common proof of an otherwise individualized issue. Our
precedents resolve that question: Before class-action plaintiffs
can use representative evidence in this way, district courts must
undertake a rigorous analysis to ensure that such evidence is
sufficiently probative of the individual issue to make it
susceptible to classwide proof. The District Court did not satisfy
that obligation here, and its failure to do so prejudiced defendant
Tyson Foods at trial. The majority reaches a contrary conclusion by
redefining class-action requirements and devising an unsound
special evidentiary rule for cases under the Fair Labor Standards
Act of 1938 (FLSA), 29 U. S. C. §201
I respectfully dissent.
“The class action is an exception to the
usual rule that litigation is conducted by and on behalf of the
individual named parties only.” Comcast Corp.
, 569 U. S. ___, ___ (2013) (slip op., at 5)
(internal quotation marks omitted). Plaintiffs thus “must
affirmatively demonstrate [their] compliance” with Rule 23.
Wal-Mart Stores, Inc.
, 564 U. S. 338,
350 (2011) . Where, as here, a putative class seeks money damages,
plaintiffs also must satisfy the “demanding” standard
of predominance, Comcast
at ___ (slip op., at
6), by proving that “questions of law or fact common to class
members predominate over any questions affecting only individual
members.” Fed. Rule Civ. Proc. 23(b)(3).
District courts must also ensure continued
compliance with Rule 23 throughout the case. When a district court
erroneously certifies a class, then holds a trial, reversal is
required when the record shows that improper certification
prejudiced the defendant. And an incorrect class certification
decision almost inevitably prejudices the defendant. When a
district court allows class plaintiffs to prove an individualized
issue with classwide evidence, the court relieves them of their
burden to prove each element of their claim for each class member
and impedes the defendant’s efforts to mount an effective
Here, the District Court misconstrued the
elements of the plaintiffs’ claims. And it failed to
recognize that one critical element of those claims raised an
individual issue that would predominate over any common issues. The
court therefore did not ask whether that individual issue was
susceptible to common proof. That error, at the class certification
stage, then prejudiced Tyson at trial. It was only at trial that
the plaintiffs introduced the critical evidence at issue in this
case. They introduced, as representative of the class, a study by
the plaintiffs’ expert, Dr. Kenneth Mericle. The District
Court still declined to consider whether this evidence was
appropriate common proof—even though the study showed wide
variations among class members on an important individual issue.
These errors prejudiced Tyson and warrant reversal.
The District Court erred at the class
certification stage by holding that the plaintiffs satisfied Rule
23’s predominance requirement. The plaintiffs alleged that
Tyson failed to adequately pay workers overtime for donning and
doffing protective gear, in violation of the Iowa Wage Payment
Collection Law, Iowa Code §91A.3 (2013). This Iowa law mirrors
] An employer
violates these laws if it employs someone “for a workweek
longer than forty hours” and fails to adequately compensate
him for the overtime. 29 U. S. C. §207(a)(1). Here, the
plaintiffs could establish Tyson’s liability to all class
members only if: (1) the donning and doffing at issue is
compensable work; (2) all employees worked over 40 hours, including
donning and doffing time; and (3) Tyson failed to compensate each
employee for all overtime.
The District Court should have begun its
predominance inquiry by determining which elements of the
plaintiffs’ claims present common or individual issues, and
assessed whether individual issues would overwhelm common ones. See
v. Erica P. John Fund, Inc.
U. S. ___, ___ (2014) (slip op., at 14–15); Erica P.
John Fund, Inc.
v. Halliburton Co.
, 563 U. S. 804,
809 (2011) . The plaintiffs’ claims here had one element that
was clearly individualized: whether each employee worked over 40
hours without receiving full overtime pay. The amount of time that
employees spent on donning and doffing varied by person because
individuals take different amounts of time to don and doff the same
gear, and their gear varied. This issue was critical to determining
Tyson’s liability because some employees would not have
worked over 40 hours per week without counting time spent on
donning and doffing. The critical issue for class certification
thus was whether the individualized nature of employees’
donning and doffing times defeated predominance.
The District Court, however, certified a
3,344–member class without acknowledging the significance of
this individual issue, let alone addressing whether it was
susceptible to common proof. The court acknowledged that
“[i]ndividual questions may exist” and that Tyson was
objecting to being “forced to defend against un
evidence” because the plaintiffs had no common evidence
establishing what gear all employees wore “or how long [they]
spend donning and doffing their [gear].” 564 F. Supp. 2d
870, 900, 909 (ND Iowa 2008). But, in the District Court’s
view, common issues predominated because the plaintiffs could
establish classwide liability just by showing that Tyson was not
paying any employee for the time it took to don or doff basic gear.
at 909; see id.,
at 900, 904, 905 (similar).
The District Court thus did not give proper
consideration to the significance of variable donning and doffing
times. Establishing an FLSA violation across the entire class was
impossible without evidence that each
employee would have
worked over 40 hours per week if donning and doffing time were
included. But the District Court did not fully appreciate that this
was a critical individual issue that defined Tyson’s
liability, and it did not analyze, in any way, whether this issue
was susceptible to common proof. As a result, the District Court
erred when it certified the class.
It was only later at trial that the plaintiffs
introduced the critical evidence that they claimed could establish
all employees’ donning and doffing times on a classwide
basis. This evidence came from the plaintiffs’ expert, Dr.
Mericle, who studied how long certain Tyson employees took to don
and doff various gear. This was the “most important”
evidence at trial. Ante,
at 5. Without it, the plaintiffs
almost certainly could not have obtained a classwide verdict. But
rather than showing that employees’ donning and doffing times
were susceptible to classwide proof, Mericle’s evidence
showed that employees’ donning and doffing times varied
materially. Mericle’s evidence thus confirmed the
inappropriateness of class treatment.
Mericle used about 53 employees per donning- or
doffing-related activity to extrapolate averages for the
3,344–person class. By averaging the times that sample
employees spent per activity, Mericle estimated that all cut or
retrim department employees spent 18 minutes per day on
uncompensated activities (including donning and doffing), while
kill department employees averaged 21.25 minutes.
Mericle’s data, however, revealed material
variances in the amount of time that individual employees spent on
the same activities. Cut and retrim employees took between 0.583
minutes and over 10 minutes to don preshift equipment at their
lockers. Postshift doffing took one employee less than two minutes,
and another over nine minutes. Kill department employees had
similar variances. No two employees performed the same activity in
the same amount of time, and Mericle observed “a lot of
variation within the activity.” App. 387.
The plaintiffs’ trial evidence also showed
that variances in the amount of time that employees spent on
donning and doffing activities significantly affected the number of
class members who could assert overtime claims. The
plaintiffs’ other expert, Dr. Liesl Fox, added
Mericle’s average times to individual employees’
timesheets to determine which class members had overtime claims.
She discovered that 212 of the 3,344 class members had no claims at
all because they had not worked over 40 hours per week. If
Mericle’s averages even slightly overesti-mated average
donning and doffing times, another 282 class members would have no
overtime claims. If average donning or doffing times dropped from
18–21 minutes to 15 minutes, Fox stated, another 110
employees had no overtime claims. According to Fox, incremental
changes to donning and doffing times mattered so much that her
estimated damages figure ($6.6 million) would be meaningless if the
jury discounted Mericle’s data at all. Yet the jury
ultimately rejected that damages figure—seemingly disagreeing
that Mericle’s average times reflected the amount of time
that every class member spent donning and doffing.
Because the District Court did not evaluate
Mericle’s and Fox’s evidence in its initial class
certification decision, it should have revisited certification when
faced with this evidence at trial. It declined to do so even after
Tyson objected to using this evidence to establish the amount of
time all class members spent donning and doffing. See 2011 WL
3793962 (ND Iowa, Aug. 25, 2011) (rejecting decertification
motion); 2012 WL 4471119 (ND Iowa, Sept. 26, 2012) (summarily
denying post-trial decertification). The court thus never made
findings or analyzed whether, under Rule 23(b)(3), Mericle’s
study could be used as common proof of an individual issue that
would otherwise preclude class treatment.
The District Court’s jury instructions did
not cure this deficiency. No instruction could remedy a
court’s failure to address why an individual issue was
susceptible to common proof. In any event, the court instructed the
jury that “expert testimony”—like
Mericle’s—should get “as much weight as you think
it deserves.” App. 471. The court also let the jury rely on
representative evidence to establish each class member’s
claim even if the jury believed that employees’ donning and
doffing times varied considerably. See ibid.
In sum, the plaintiffs at no time had to justify
whether the variability among class members here was too much for
representative evidence to fill the gap with common proof. Nor did
the District Court address whether Mericle’s
study—which showed significant variability in how much time
employees spent on donning and doffing—was permissible common
proof. These errors created an unacceptable risk that Tyson would
be held liable to a large class without adequate proof that each
individual class member was owed overtime. Before defendants can be
forced to defend against a class action, courts must be sure that
Rule 23’s criteria are met. The District Court’s
failure to do so warrants reversal.
The majority reaches a contrary result by
erring in three significant ways. First, the majority alters the
predominance inquiry so that important individual issues are less
likely to defeat class certification. Next, the majority creates a
special, relaxed rule authorizing plaintiffs to use otherwise
inadequate representative evidence in FLSA-based cases by
v. Mt. Clemens Pottery Co.
U. S. 680 (1946) . Finally, the majority points to
Tyson’s litigation strategy and purported differences from
prior Rule 23 precedents. None of these justifications withstands
The majority begins by redefining the
predominance standard. According to the majority, if some
“ ‘central issues’ ” present
common questions, “ ‘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.’ ” Ante
, at 9 (quoting, 7AA C.
Wright, A. Miller, & M. Kane, Federal Practice & Procedure
§1778, pp. 123–124 (3d ed. 2005; footnotes
We recently—and correctly—held the
opposite. In Comcast,
we deemed the lack of a common
methodology for proving damages fatal to predominance because
“[q]uestions of individual damage calculations will
inevitably overwhelm questions common to the class.” 569
U. S., at ___ (slip op., at 7).[2
] If, as the majority states, this case presents
“no occasion” to announce “broad and categorical
rules governing the use of representative and statistical evidence
in class actions,” ante,
at 15, it should most
certainly not present an occasion to transform basic aspects of the
The majority further errs in concluding that
the representative evidence here showed that class members’
claims were susceptible to common proof. See ante,
8–15. As the majority observes, representative evidence can
be used to prove an individual issue on a classwide basis if each
class member, in an individual action, could rely on that evidence
to prove his individual claim. Ante,
at 11. But that premise
should doom the plaintiffs’ case. Even testifying class
members would seem unable to use Mericle’s averages. For
instance, Mericle’s study estimated that kill department
employees took an average 6.4 minutes to don equipment at their
lockers before their shift—but employee Donald Brown
testified that this activity took him around 2 minutes. Others also
testified to donning and doffing times that diverged markedly from
Mericle’s estimates. So Mericle’s study could not
sustain a jury verdict in favor of these plaintiffs, had they
brought individual suits.
According to the majority, this disparity
between average times and individual times poses no problem because
v. Mt. Clemens Pottery Co.
, 328 U. S.
680 , allows plaintiffs to use such representative evidence as
common proof. See ante,
at 11–14. In the
majority’s view, Mt. Clemens
(1) if the employer did not record the time that employees
spent on compensable work, employees can use representative
evidence to establish the employer’s liability, ante,
at 11–12; and (2) employees can use “the
experiences of a subset of employees” to establish “the
experiences of all of them” if “each employee worked in
the same facility, did similar work[,] and was paid under the same
The majority’s reliance on Mt.
is questionable given that decision’s shaky
foundations. Seventy years ago, Mt. Clemens
FLSA broadly to vindicate the Court’s understanding of the
FLSA’s “remedial” purposes. 328 U. S., at
687. Within a year, Congress rejected that interpretation. Citing
the “emergency” this Court had created by spurring
“excessive and needless litigation,” Congress
repudiated this Court’s understanding of what the FLSA meant
by “work” and the “workweek” and limited
employees’ ability to sue collectively. 29 U. S. C.
§§251(a)–(b); see Integrity Staffing Solutions,
, 574 U. S. ___, ___ (2014) (slip op.,
at 3–5) (noting repudiation in the Portal-to-Portal Act of
1947); Hoffmann-La Roche Inc.
U. S. 165, 173 (1989) (noting repudiation of representative
actions). Since then, this Court has decided many FLSA cases, but
has never relied on Mt. Clemens
to do so.[3
Putting these concerns aside, the majority today
goes beyond what Mt. Clemens
held. First, Mt. Clemens
does not hold that employees can use representative evidence in
FLSA cases to prove an otherwise uncertain element of liability.
involved an employer’s alleged failure to
pay employees for time they spent walking to and from their work
spaces and on preshift preparatory activities. See 328 U. S.,
at 684–685. The Court held that the FLSA required employers
to compensate employees for those activities. Id.,
690–692 (overruled by 29 U. S. C. §§252,
254). The employer was thus presumptively liable to all employees
because they all claimed to work 40 hours per week. See Record in
, O.T. 1945, No. 342 (Record), pp. 10–11
(complaint). All additional uncompensated work was necessarily
unpaid overtime. That explains why the Court “assum[ed] that
the employee has proved that he has performed work and has not been
paid in accordance with the statute.” 328 U. S., at
also rejected the notion that
employees who had already
established the employer’s
liability had to prove damages using precise, employee-specific
, at 687. Rather, if the employer failed to keep
records but its liability was certain, employees could use evidence
that “show[s] the amount and extent of that work as a matter
of just and reasonable inference.” Ibid.
however, limited this holding to instances where the
employer’s FLSA violation was “certain,” as in
at 688; see ibid.
(inference permissible “as to the extent of the
damages”). Mt. Clemens
does not justify the use of
representative evidence in this case, where Tyson’s liability
to many class members was uncertain.
Second, the majority misreads Mt. Clemens
as “confirm[ing]” that when employees “worked in
the same facility, did similar work and w[ere] paid under the same
policy,” representative evidence can prove all of their
, at 14. Mt. Clemens
said nothing about
whether or why the employees there shared sufficient similarities
for their claims to be susceptible to common proof. The Mt.
plaintiffs were the local union and seven employees.
See 328 U. S., at 684. They brought a representative action, a
type of collective action that allowed employees to designate a
union to pursue their claims for them. See §16(b), 52Stat.
1069; Record 7 (complaint). Some 300 employees did so. See Mt.
Clemens Pottery Co.
, 149 F. 2d, 461
(CA6 1945); Record 33–41. The District Court did not make
findings about what made these employees similar, instead reasoning
that the FLSA’s broad objectives supported a liberal approach
to allowing class suits. Record 29–32 (June 13, 1941, order).
This Court also said nothing about whether the employees suffered
the same harm in the same manner; that issue was not before it. In
’ aftermath, however, Congress eliminated
representative actions, like the one in Mt. Clemens
required too few similarities among plaintiffs and allowed
plaintiffs “not themselves possessing claims” to sue.
, at 173. Mt. Clemens
thus offers no guidanceabout what degree of similarity among
employees suffices for representative evidence to establish all
In any event, Mt. Clemens
did not accept
that the representative evidence there would be probative even were
the employees sufficiently similar. All Mt. Clemens
was that the lack of precise data about the amount of time each
employee worked was not fatal to their case. 328 U. S., at
686–687. The Court then remanded the case, leaving the lower
courts to “draw whatever reasonable inferences can be drawn
from the employees’ evidence,” if any. Id.
therefore does not support the majority’s
conclusion that representative evidence can prove thousands of
employees’ FLSA claims if they share a facility, job
functions, and pay policies. See ante,
By focusing on similarities irrelevant to
whether employees spend variable times on the task for which they
are allegedly undercompensated, the majority would allow
representative evidence to establish classwide liability even where
much of the class might not have overtime claims at all. Whether
employees work in one plant or many, have similar job functions, or
are paid at the same rate has nothing to do with how fast they
walk, don, or doff—the key variables here for FLSA
The majority suggests that Mt.
’ evidentiary rule is limited to cases where the
employer breaches its obligation to keep records of
employees’ compensable work. See ante,
But that limitation is illusory. FLSA cases often involve
allegations that a particular activity is uncompensated work. Just
last Term, we re-jected class-action plaintiffs’ theory that
waiting in an antitheft security screening line constitutes work.
See Integrity Staffing Solutions, Inc.
, 574 U. S. at
___ (slip op., at 1). The majority thus puts employers to an
untenable choice. They must either track any time that might be the
subject of an innovative lawsuit, or they must defend class actions
against representative evidence that unfairly homogenizes an
individual issue. Either way, the major-ity’s
misinterpretation of Mt. Clemens
will profoundly affect
future FLSA-based class actions—which have already increased
dramatically in recent years. Erichson, CAFA’s Impact On
Class Action Lawyers, 156 U. Pa. L. Rev. 1593, 1617 (2008).
The majority makes several other arguments why
Mericle’s study was adequate common proof of all class
members’ experiences. None has merit.
First, the majority contends that, because
Tyson’s trial defense—that Mericle’s study was
unrepresentative or inaccurate—was “itself
common,” Tyson was “not deprive[d] . . . of its ability
to litigate individual defenses.” Ante,
at 12. But
looking to what defenses remained available is an unsound way to
gauge whether the class-action device prevented the defendant from
mounting individualized defenses. That Tyson was able to mount only
defense confirms its disadvantage. Testifying class
members attested to spending less time on donning and doffing than
Mericle’s averages would suggest. Had Tyson been able to
cross-examine more than four of them, it may have incurred far less
liability. See supra
, at 9–10.
Second, the majority argues that Tyson’s
failure to challenge Mericle’s testimony under Daubert
v. Merrell Dow Pharmaceuticals, Inc.
, 509 U. S. 579
(1993) , left to the jury any remaining questions about the value
of this evidence. Ante,
at 14–15. But Comcast
rejected this argument. Failing to challenge evidence under
precludes defendants from “argu[ing] that
[the] testimony was not admissible,” but it does not preclude
defendants from “argu[ing] that the evidence failed to show
that the case is susceptible to awarding damages on a class-wide
569 U. S.,
n. 4 (slip op., at 5, n. 4) (internal quotation marks
Finally, the majority’s attempts to
distinguish this case from Wal-Mart
are unavailing. See
at 13–14. Wal-Mart
involved a nationwide
Title VII class action alleging that Wal-Mart’s policy of
delegating employment decisions to individual store managers let
managers exercise their discretion in a discriminatory manner. See
564 U. S., at 342. We held that discretionary decisionmaking
could not be a common policy uniting all class members’
claims because managers presumptively exercise their discretion in
an individualized manner. See id.
, at 355–356. Some
may rely on performance-based criteria; others may use tests; yet
others might intentionally discriminate. Ibid.
this variability, “demonstrating the invalidity of one
manager’s use of discretion will do nothing to demonstrate
the invalidity of another’s.” Ibid.
Moreover, the Wal-Mart
representative evidence—120 employee anecdotes—did not
make this individualized issue susceptible to common proof.
at 358. Using 120 anecdotes to represent the
experiences of 1.5 million class members was too far below the 1:8
ratio of anecdotes to class members that our prior cases accepted.
Thus, this representative evidence was “too weak
to raise any inference that all the individual, discretionary
personnel decisions are discriminatory.” Ibid
The plaintiffs’ reliance on
Mericle’s study fails for the same reasons. Just as
individual managers inherently make discretionary decisions
differently, so too do individual employees inherently spend
different amounts of time donning and doffing. And, just as 120
employee anecdotes could not establish that all 1.5 million class
members faced discrimination, neither can Mericle’s study
establish that all 3,344 class members spent the same amount of
time donning and doffing. Like the 120 Wal-Mart anecdotes,
Mericle’s study—which used about 57 employees per
activity to extrapolate times for 3,344—falls short of the
1:8 ratio this Court deems “significant” to the
probative value of representative evidence. See id.,
I agree with the majority’s conclusion in
Part II–B that we should not address whether a class action
can be maintained if a class contains uninjured members. Given that
conclusion, however, I am perplexed by the majority’s
readiness to suggest, in dicta, that Tyson’s opposition to
bifurcating the proceedings might be invited error. Ante
17. I see no reason to opine on this issue.
* * *
I respectfully dissent.