Today, the Supreme Court issued its opinion in Tyson Foods v. Bouaphakeo, addressing the use of statistical evidence in class actions. The plaintiffs’ bar will undoubtedly claim the decision as a victory because class certification was upheld. But I don’t think that’s right. The decision (a  6-2 opinion by Justice Kennedy, with Justices Thomas and Alito dissenting) stands for principles that defendants can use to defend many class actions successfully.

The heart of the Court’s decision is that we should think of class actions conceptually as if they were hundreds or thousands (or millions, as the case may be) of separate individual suits. If the statistical evidence being offered could be properly used to prove entitlement to relief in individual cases, then it can all be used in a class action. But if the evidence would not be sufficient in an individual case, then it will not pass muster in a class action either. This is because the procedural device of a class action cannot alter substantive rights, under the Rules Enabling Act.

Tyson Foods involved a claim under the Fair Labor Standards Act. The plaintiffs alleged that Tyson Foods failed to pay for time  spent putting on and taking off (“donning and doffing” in the legal lingo) protective equipment at overtime rates where the employee worked more than 40 hours per week including the “donning and doffing” time. The plaintiffs’ expert watched video recordings of employees taking their equipment on and off, and measured and averaged the times for the different departments. The Court found that this evidence, which had not been challenged by the defendant under Daubert, would be admissible in an individual lawsuit. This was because, in Anderson v. Mt. Clemens Pottery Co., the Court established a burden-shifting framework, under which, if the employer fails to satisfy its statutory duty to keep adequate time records, the employee can establish a prima facie case with evidence sufficient to make a “just and reasonable inference” about the amount of time worked. The burden then shifts to the employer to rebut that inference.

The Court distinguished the “Trial By Formula” method that was rejected in Wal-Mart Stores, Inc. v. Dukes because the putative class members in that sex discrimination case could not have properly used deposition evidence regarding practices of individual store managers in stores they did not work in to prevail in individual suits.

The Court declined to create any broad rule, explaining that “[w]hether 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.” (Slip op., at 15.) The Court also declined to decide the second issue in the case – whether uninjured class members could recover from the aggregate jury verdict. The Court found that issue premature, where the district court had not yet allocated the award. Chief Justice Roberts wrote a concurrence (joined by Justice Alito on this point) suggesting that there was no way of knowing how the jury reached its verdict and thus how it could be allocated without providing relief to uninjured plaintiffs. He wrote that “Article III does not give federal courts the power to order relief to any uninjured plaintiff, class action or not,” and “if there is no way to ensure that the jury’s damages award goes only to injured class members, that award cannot stand.” (Slip op. of Roberts, C.J., concurring, at 5-6.)

So how can defendants use this decision in defending against class certification? Here are a few thoughts:

  • In many cases, the law does not permit any type of burden shifting in individual suits. In addition, in many other cases (such as many insurance and financial services class actions), defendants have detailed records of individual interactions with the putative class members. In these situations, statistical evidence often cannot properly be used to prove an individual case. Tyson Foods supports defendants’ position in these cases.
  • Tyson Foods recognizes that the court cannot “deprive [defendant] of its ability to litigate individual defenses.” (Slip op. at 12.) While it appears that the defense was presented using common evidence in Tyson Foods, the defendant should be entitled to introduce individual evidence to support its defenses to individual putative class members’ claims. In some cases, this may result in decertification of the class if the trial becomes unmanageable due to the defendant’s right to put on its individual defenses. As Tyson Foods further explains, it “violate[s] the Rules Enabling Act [to] giv[e] plaintiffs and defendants different rights in a class proceeding than they could have asserted in an individual action.” (Slip op. at 14.) Where the defendant will use individual evidence to defendant against the named plaintiffs’ claims and/or some class members’ claims, it is entitled under Tyson Foods and Wal-Mart to use that same evidence in defending itself at the trial of a certified class action.
  • The presence of uninjured class members, although still an open question, is an important one. The Chief Justice’s concurrence on this point is likely to carry significant weight in the lower courts. Defendants can continue to press this issue.


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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.