The Law of Averages: In a Narrow Ruling, the Supreme Court Allows Representative Evidence “to Fill Evidentiary Gaps” in Tyson Foods, Inc.

    View Author March 2016

    The US Supreme Court yesterday handed down a highly anticipated decision in Tyson Foods, Inc. v. Bouaphakeo et al., No. 14-1146,  the second of three cases this term that were expected to have a broad impact on class action practice. Tyson Foods, involving a class action and Fair Labor Standards Act collective action on behalf of Tyson employees for unpaid overtime, seemed to present the Court with the opportunity to address uncertainty in the federal courts regarding whether a class action may be maintained when the class contains members who were not injured or have no legal right to any damages.

    The Court declined to rule broadly on that question, instead issuing a narrow 6-2 ruling that the district court did not err in allowing workers to rely on statistical analysis to show average hours worked for purposes of establishing class-wide liability under the Fair Labor Standards Act (FLSA).  

    The use of statistical evidence as common proof in class actions has been very controversial, and even though Justice Kennedy’s majority opinion rejects any such claim: “[T]his case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions,” many plaintiffs’ lawyers will, nevertheless, argue Tyson Foods gives them broad license to substitute statistical studies for proper evidence. Tyson Foods and the ongoing threat posed by the use of statistics in class action litigation is another reason companies should look for specific class action defense expertise.