Today, the United States Supreme Court affirmed a basic
principal underlying lawsuits challenging mass wage theft – if employers fail
to keep records of employees’ work, then employees get to use their best
estimate to prove their employer’s wage theft, including estimates based on
statistical and representative evidence. The Court also confirmed that representative
evidence may be used beyond the wage and hour context.
As we wrote here,
the Court seemed unpersuaded at oral argument last fall that it should overrule
seventy years of precedent, first established in Anderson v. Mt. Clemens Pottery Co., that employees may use a “representative
sample to fill an evidentiary gap created by the employer’s failure to keep
adequate records.” Tyson Foods, Inc. v.
Bouaphakeo, No. 14-1146, 2016 WL 1092414, at *9 (Mar. 22, 2016). Writing
for a 6-2 majority, Justice Kennedy affirmed this long-standing and critical
rule of law.
Importantly, the
Court went beyond the lenient standard of proof established in Mt. Clemens, which is unique to the Fair
Labor Standards Act context, and thereby confirmed that representative evidence
can be used as common proof of classwide liability and damages in other legal contexts.
In particular, the Court clarified that Wal-Mart
Stores, Inc., v. Dukes, the infamous decision that struck down a nationwide
gender discrimination class action and has been the cause of much consternation
for worker and consumer advocates, “does not stand for the broad proposition
that a representative sample is an impermissible means of establishing
classwide liability.” Id. at *10.
Instead, the Court correctly recognized that representative evidence, like any
evidence, can be persuasive or unpersuasive to a jury depending “on the purpose
for which the sample is being introduced and on the underlying cause of
action.” Id. at *8. In cases where “each class member could have relied on
that sample to establish liability if he or she had brought an individual
action,” representative evidence is more appropriate in contrast to cases where
affected individuals are not sufficiently “similarly situated.” Id. at *8, *11. Thus, any doubt about
the propriety of representative evidence to prove classwide liability in the
wake of Wal-Mart and Comcast Corp. v. Behrend has been
dispelled. The new battleground appears to be not if, but when representative
evidence can be deployed to establish an element of a cause of action on a
classwide basis. Id. at *8.
Interestingly, the
Court observed that the district court would have erred in denying class
certification if its sole basis for denying class certification were the lower
court’s perception of the expert report as unpersuasive. Id. at *11. Only if the lower court “concluded that no reasonable
juror could have believed that the employees spent roughly equal time donning
and doffing” would denying class certification have been proper. Id. See
also Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct.
1184, 1194-95 (2013) (“Rule 23 grants courts no license to engage in
free-ranging merits inquiries at the certification stage.”) The takeaway appears
to be that the Court will require aggrieved plaintiffs seeking to use
representative evidence to first establish that they were “similarly situated”
such that the defendant’s harmful conduct affected them “roughly” in the same
way. Id. However, once this threshold
is met, the representative evidence may be used to establish classwide
liability if it is otherwise admissible – no “Trial by Formula” concerns in
sight.
Also, as anticipated
by comments at oral argument, the Court declined to consider the important
question of whether the possibility of uninjured class members prevents a
district court from certifying a class action because Defendants abandoned the
issue. The district court will have to address this issue in the first instance
on remand. If not addressed in this case, the issue of possibly uninjured class
members likely will continue to be raised by employers seeking to avoid
accountability for their wrongdoing by arguing that if they didn’t steal from each
of its employees, then its victims cannot stand together because unaffected
employees might possibly receive a windfall. Thus, the employer should be let
off the hook, or so the defense bar’s argument goes. A patently ridiculous
argument, but one that will be resolved another day.
Lastly, the
Court cautions that any representative evidence that relies upon expert
witnesses, sampling, and similar evidence remains subject to a Daubert challenge, and thus, must be
methodologically sound. This is in line with California Supreme Court jurisprudence
that a class action may be certified using representative evidence, but the
methodology behind the representative evidence must be credible and free of
defects such as sampling errors. See Duran
v. U.S. Bank Nat. Assn., 59 Cal. 4th 1, 13, 50-8 (2014) (Liu, J.,
concurring). See also here and here for discussion of the holding in Duran,
and issues relating to the use of representative proof to advance the cause of
workers.
Thus, Tyson Foods, far from spelling the end
of representative evidence in class actions, has breathed new life into class
actions used to protect the interests of consumers, workers, and the general public.
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