By the Numbers: Certifying Class Actions Based on Statistics

Abstract

This article analyzes two major class action issues the Supreme Court will consider in Tyson Foods, Inc. v. Bouaphakeo, argued November 10, 2015. The underlying litigation involves the claims of workers at a Tyson Foods poultry processing facility concerning alleged overtime wage discrimination for so-called "donning and doffing" activities of the workers. The Court will consider whether, in certifying a class action under Federal Rule 23(b)(3) or a collective action under the Fair Labor Standards Act, a court may rely on representative proof based on statistical methodology to determine a defendant’s liability and damages, presuming all class members to be identical to the sample average. In evaluating the use of statistical methodology to ascertain classwide damages, the Court may revisit its pronouncements on "trial by formula" repudiated by the Court in Wal-Mart v. Dukes. In addition, the Court also may determine whether a class or collective action may be certified where numerous class members allegedly have suffered no injury and have no right to damages. Assessment of the status of so-called "no injury" classes may entail consideration of standing requirements in class action jurisprudence.

Keywords: Class actions, Rule 23(b)(3), Fair Labor Standards Act, statistical proof of damages, donning and doffing, damage averaging, non-injury class, Tyson Foods v. Bouaphakeo, Wal-Mart v. Dukes, FSLA, classwide damages, class action standing