SUPREME COURT OF THE UNITED STATES
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 Thomas, with whom Justice Alito joins, dissenting.
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 et seq.
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,
. 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 defense.
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 the FLSA.[1
] 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 Halliburton Co.
v. Erica P. John Fund, Inc.
, 573 U. S. ___, ___ (2014) (slip op., at 14–15); Erica P. John Fund, Inc.
v. Halliburton Co.
563 U. S. 804,
. 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
common 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. Id.,
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 misreading Anderson
v. Mt. Clemens Pottery Co.
328 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 scrutiny.
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 omitted)).
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 predominance inquiry.
The majority further errs in concluding that the representative evidence here showed that class members’ claims were susceptible to common proof. See ante,
at 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 Anderson
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
established that (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 policy,” ante,
The majority’s reliance on Mt. Clemens
is questionable given that decision’s shaky foundations. Seventy years ago, Mt. Clemens
construed the 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, Inc.
, 574 U. S. ___, ___ (2014) (slip op., at 3–5) (noting repudiation in the Portal-to-Portal Act of 1947); Hoffmann-La Roche Inc.
493 U. S. 165,
(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. Mt. Clemens
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.,
at 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 Mt. Clemens
, 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 688.
also rejected the notion that employees who had already
established the employer’s liability had to prove damages using precise, employee-specific records. Id.
, 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.
The Court, however, limited this holding to instances where the employer’s FLSA violation was “certain,” as in Mt. Clemens
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
“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 claims. Ante
, 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. Clemens
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),
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 Mt. Clemens
’ aftermath, however, Congress eliminated representative actions, like the one in Mt. Clemens
that required too few similarities among plaintiffs and allowed plaintiffs “not themselves possessing claims” to sue. Hoffman-La Roche
, at 173. Mt. Clemens
thus offers no guidanceabout what degree of similarity among employees suffices for representative evidence to establish all employees’ experiences.
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
decided 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.
, at 693–694.[4
] Mt. Clemens
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 liability.
The majority suggests that Mt. Clemens
’ evidentiary rule is limited to cases where the employer breaches its obligation to keep records of employees’ compensable work. See ante,
at 11–12. 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 a common
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 Daubert
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 basis.” Comcast,
569 U. S.,
at ___, n. 4 (slip op., at 5, n. 4) (internal quotation marks omitted).
Finally, the majority’s attempts to distinguish this case from Wal-Mart
are unavailing. See ante,
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.
Because of 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
plaintiffs’ representative evidence—120 employee anecdotes—did not make this individualized issue susceptible to common proof. Id.,
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. Ibid.
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
, at 17. I see no reason to opine on this issue.
* * *
I respectfully dissent.