As my colleague, Katherine Kayatta, alluded to in her detailed post earlier this week, much of the initial commentary on the Supreme Court’s Tyson Foods decision has been to the effect that the decision may crack open the door to representative proof in class cases. While plaintiffs will no doubt seek to use it that way, I don’t read the decision as providing a lot of meaningful support for such an effort. And, indeed, I think defendants should embrace rather than fear the decision in many respects.
The injury issues that will be at issue on remand are crucial (especially in the First Circuit, since they seem to conflict with In re Nexium), and they merit a separate post. Apart from those, however, I am principally encouraged by the majority’s repeated emphasis on needing to assess the proffered representative evidence just as the court would in an individual case. If every court assessing class certification made such express determinations about the applicable law and the admissibility of the proffered evidence under that law, I suspect far fewer cases would be certified.
Of course, even accepting the determination that the representative evidence is admissible does not resolve the class question. What of Tyson Foods’ ability to rebut the evidence by proving that particular class members took less time to don and doff such that they did not work overtime and thus were not injured? The Court did not exactly tackle that question head on, so one has to read between the lines a bit for the answer. And how the courts below read between the lines will make a key difference for how they will apply it.
In my view, the right reading of the Court’s decision is that Tyson Foods offered no substantial individualized evidence and therefore, on the particular factual record, common issues predominated. I infer this from the Court’s conclusion – notably, by a vote of 6 to 2 – that admitting the representative evidence “did not deprive petitioner of its ability to litigate individual defenses” because its “primary defense was to show that Mericle’s study was unrepresentative or inaccurate,” as well as from its statement that the district court did not conclude that “no reasonable juror could have believed that the employees spent roughly equal time donning and doffing.” That inference gains some further support from the Court’s statement in distinguishing Wal-Mart that the employees in Tyson Foods “worked in the same facility, did similar work, and [were] paid under the same policy,” i.e., that there was little reason to suspect meaningfully different donning and doffing times across the board. Simply put, it seems that the Court found that each individual case would turn on the representative evidence, and the abstract but unrealized right to rebut that evidence was not sufficient to defeat certification. That finding is a reminder of three lessons for defendants.
First, don’t forget about the equities. The best theoretical class defense is unlikely to prevail if the court concludes that the defendant’s actions have harmed the class.
Second, the more detailed the facts in support of the class opposition, the better. Generalized affidavits about ways that facts might vary are not nearly as persuasive as detailed demonstrations of the varying facts applicable to particular persons.
Third, don’t forget about Daubert. Tyson Foods may well have had good reason here not to bring a Daubert challenge, but a challenge to the admissibility of the evidence coupled with a demonstration of the individualized issues that would exist even were the evidence admitted can be a powerful one-two punch.