Opposition Brief — Kansas City Royals Baseball Corp., et al., Petitioners v. Aaron Senne, Individually and on Behalf of All Others Similarly Situated, et al.

No. 19-1339

IN THE

Supreme Court of the United States

__________

KANSAS CITY ROYALS BASEBALL CORP. ET AL.,

Petitioners,

v.

AARON SENNE ET AL., ON BEHALF OF

THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

Respondents.

__________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

__________

BRIEF IN OPPOSITION

__________

ROBERT L. KING

Counsel of Record

GARRETT R. BROSHUIS

KOREIN TILLERY LLC

One U.S. Bank Plaza

505 North 7th Street

Suite 3600

St. Louis, MO 63101

(314) 241-4844

rking@koreintillery.com

Counsel for Respondents

August 12, 2020

QUESTIONS PRESENTED

Petitioners’ two undisputed employment policies—

not to pay wages during training seasons and never to

pay overtime—cut across every owner, every team,

every player position, and thus every single minor

league player. In this wage-and-hour challenge to

those policies, the players offered an array of evidence

of hours worked that included team pre-game and

game schedules, travel itineraries, payroll data—and

also a survey of players’ arrival and departure times.

Under applicable state wage laws, compensable hours

worked include “all the time” an employee is “suffered

or permitted to work, whether or not required to do

so.” The players offered the survey to approximate

start and end times of a team’s typical workday. The

district court found that a team’s workday is similar

across teams and “routinized” across players. In Tyson

Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), the

Court held that wage-and-hour employees may use a

statistical average to establish the time employees engaged in uncompensated work activities, if the evidence would be admissible in an employee’s individual

action. On appeal, petitioners abandoned their challenge to the survey’s admissibility, arguing that expert evidence must satisfy a heightened “admissibility-plus” standard. Following Tyson, however, the

lower courts applied a “no reasonable juror” standard.

The questions presented are:

1. Whether under Tyson an admissible survey offered to establish hours worked in a wage-and-hour

class action must satisfy a higher standard than the

“no reasonable juror” standard.

2. Whether Rule 23(b)(2) has an extratextual “cohesiveness” component that requires a Rule 23(b)(3) predominance-like inquiry.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

INTRODUCTION ....................................................... 1

COUNTERSTATEMENT ........................................... 3

A. Factual Background .......................................... 3

B. Proceedings Below............................................. 5

C. The Ninth Circuit’s Decision ............................ 9

REASONS FOR DENYING THE PETITION ......... 15

I.

THE DECISION BELOW IS CORRECT

AND DOES NOT CONFLICT WITH WALMART OR FERRERAS. ..................................... 15

A. The decision in Tyson ...................................... 16

1. Tyson: an average of hours worked can

be used to prove a class’s hours worked ..... 18

2. Tyson: the persuasiveness of evidence

of average hours worked is a jury

question. ...................................................... 19

B. The decision below is a straightforward

application of Tyson. ....................................... 20

C. The Ninth Circuit created no wage-andhour Tyson-exception to Wal-Mart. ................ 21

D. The Ninth Circuit conducted the required

“rigorous analysis” of the survey. ................... 23

E. There is no split with the Third Circuit. ........ 25

iii

II. THERE IS NO CIRCUIT SPLIT AS TO

RULE 23(b)(2) COHESIVENESS. ..................... 26

III. THIS CASE IS A POOR VEHICLE FOR

CONSIDERING EITHER QUESTION. ............ 29

A. Both questions hinge on waived issues. ......... 30

1. Petitioners have waived key elements

of the survey question. ................................ 30

2. The “cohesiveness” question was

neither preserved nor decided below.......... 31

B. Reversal on either question would have

little or no practical effect on the outcome

of proceedings on remand. .............................. 32

1. The FLSA collective will proceed. .............. 32

2. The Rule 23 classes will proceed. ............... 32

CONCLUSION.......................................................... 34

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Campbell v. City of Los Angeles,

903 F.3d 1090 (9th Cir. 2018) ............................. 32

Ebert v. General Mills,

823 F.3d 472 (8th Cir. 2016) ............................... 29

Ferreras v. American Airlines, Inc.,

946 F.3d 178 (3d Cir. 2019) ........................1, 25, 26

Gates v. Rohm and Haas Co.,

655 F.3d 255 (3d Cir. 2011) ................................. 29

IBP, Inc. v. Alvarez,

546 U.S. 21 (2005) ............................................... 10

Kartman v. State Farm Mut. Auto. Ins. Co.,

634 F.3d 883 (7th Cir. 2011) ............................... 28

Padilla v. Hanft,

126 S. Ct. 1649 (2006) ......................................... 32

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000) ............................................. 25

Romberio v. Unumprovident Corp.,

385 F. App’x 423 (6th Cir. 2009) ....................28, 29

Shook v. Bd. of Cty. Comm’rs of El Paso,

543 F.3d 597 (10th Cir. 2008) ........................27, 28

v

Tyson Foods, Inc. v. Bouaphakeo,

136 S. Ct. 1036 (2016) .................................. passim

United States v. Williams,

504 U.S. 36 (1992) ............................................... 30

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ...................................... passim

Zivotofsky v. Clinton,

566 U.S. 189 (2012) ............................................. 30

Statutes

29 U.S.C. § 216(b) ..................................................... 32

Fla. Stat. § 448.110(3)............................................... 24

Other Authorities

29 C.F.R. § 778.223 ................................................... 24

29 C.F.R. § 790.6 ....................................................... 24

Ariz. Admin. Code R20-5-1202 ................................. 24

INTRODUCTION

Petitioners have a uniform training season policy:

no pay. They have a uniform overtime policy: no overtime pay. Those policies “touch and concern all members of the class” in precisely the same way—they uniformly deprive players of compensation. Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 359 n.10 (2011).

And the truth or falsity of the players’ claim that those

policies violate applicable wage laws will be determined for all class members “in one stroke,” despite

the drove of unimportant differences petitioners identify. The answer will not differ for a New York pitcher,

San Diego outfielder, or Chicago shortstop.

And in fact, as the case comes to this Court, petitioners have conceded Rule 23(a)(2) “commonality—the

rule requiring a plaintiff to show that ‘there are questions of law or fact common to the class.’” Wal-Mart,

564 U.S. at 349. As the Ninth Circuit noted, petitioners did not contest commonality on appeal. App.11 n.5.

And that concession disposes of petitioners’ claim that

the decision below conflicts with either Wal-Mart or

Ferreras v. American Airlines, Inc., 946 F.3d 178 (3d

Cir. 2019), because the “crux” of both those cases was

Rule 23(a)(2) commonality. 564 U.S. at 349; Ferreras,

946 F.3d at185-86. The Ninth Circuit here, by contrast, did not decide any commonality question because petitioners did not present one.

Petitioners’ first question is even more surprising

because it showcases not just one, but two issues conceded below. On appeal, petitioners also abandoned

their objections to the admissibility of the player survey, the focal point of their first question. App.51. Instead they argued that admissibility is not enough.

They contended that the survey “must satisfy a

‘heightened ‘admissibility-plus’ standard”—for which

they cited no authority.

2

The third strike for petitioners’ first question is that

it is academic. Even if the Court reversed on petitioners’ survey question, that decision would not undo the

certifications of any of the Rule 23(b)(3) classes here.

While the survey takes center stage in petitioners’ arguments, it assumes no such role in the players’ case.

As both courts below explained, the training classes

can establish their claims independently of the survey

through other voluminous evidence, like the hundreds

of team schedules already part of the record below.

And the third, California class can as well for a substantial portion of their claims. All three (b)(3) classes

will proceed regardless of how this Court answers the

first question presented.

Petitioners’ second question fares no better. Contrary to petitioners’ assertion, the court of appeals did

not hold that Rule 23(b)(2) has no “cohesiveness” requirement. More precisely, it held that (b)(2) requires

no (b)(3)-like predominance inquiry. This Court said

the same thing in Wal-Mart: “When a class seeks an

indivisible injunction benefiting all its members at

once, there is no reason to undertake a case-specific

inquiry into whether class issues predominate ….

Predominance and superiority are self-evident.”

564 U.S. at 362-63. And petitioners cite no decision in

which a circuit court has ever held that (b)(2) does require a (b)(3)-like predominance inquiry. Besides, that

question is also academic because petitioners’ sole

claim below that the (b)(2) class lacked cohesiveness

was based on choice-of-law, an issue not before this

Court. Petitioners’ second question, having been neither presented nor decided below, is thus waived.

Neither question merits this Court’s interlocutory

review. The petition for certiorari should be denied.

3

COUNTERSTATEMENT

A. Factual Background

Forty-five baseball players brought this wage-andhour class action challenging two wage policies that

apply to every player in the minor leagues: petitioners

pay no wages during training seasons and no overtime

at any time. The players allege that petitioners’ failure to pay them minimum and overtime wages violated state and federal wage-and-hour laws. App.5-6.

Minor League Baseball consists of professional

baseball leagues that compete at levels below Major

League Baseball. Each minor league team is affiliated

with one of thirty major league teams, and MLB and

the major league franchises employ minor league

players. App.2.

The structure of the minor league system, including

players’ employment terms, is governed by the Major

League Rules. Rule 3(b)(2) requires every minor

league player to sign a standardized contract—the

Uniform Player Contract—“to produce the similarity

of conditions necessary for keen competition.” App.2.

That contract obligates each player to “perform professional services” throughout the calendar year, even

though “salary payments are to be made only during

the actual championship playing season.” App.2. It

also provides a fixed, bimonthly salary during the

championship season, meaning a player’s pay does

not vary in amount, regardless of the number of hours

worked. App.49. Those provisions–a part of every

player’s contract–codifies petitioners’ no-pay policies.

As the court of appeals noted, petitioners no longer

“seriously contest” or “credibly dispute” either policy.

App. 45, 49.

Minor league teams follow the same, well-established calendar each year. App.3-4. Spring training

lasts four weeks, starting in early March at training

4

complexes in Florida or Arizona owned by the MLB

teams. App.3. After spring training, players assigned

to a team begin the regular “championship” season,

from April through September. App.4. Players not assigned to a team remain at their Florida or Arizona

training complex for extended spring training. App.4.

Fall Instructional Leagues follow the regular season

at the training complexes. App.5.

Although petitioners claim there is no typical minor

league workday, the players presented “a variety” of

representative evidence of the similarity of routines

across clubs, including “hundreds of team schedules,”

payroll data, and testimony from players and management. App.8; see App.174 (finding variations not “significant”). During training seasons, players work

seven days without a day off. App.3. Players arrive for

morning routines in preparation for daily games that

typically start at 1:00 p.m. App.3.-4. Games last about

three hours. App.105. The championship season is

similar, except most games are played in the evening

with a 6:00 to 7:00 start time. CA9.FER150;

CA9.FER054. Games are typically played seven days

per week with only a couple of scheduled “off days”

each month. App.4, 50. As in training seasons,

pregame drills precede each game. CA9.FER49-75.

There are practical reasons schedules are fairly homogeneous across clubs. Uniformity in routines is an

inherent part of baseball for the simple reason that it

is a team sport. Not only do players play together as

teams, they play against other teams, and the teams

all play the same nine-inning game according to

standardized rules. Players arrive several hours before

games to perform team-related activities, including

drills, team stretches, throwing, fielding practice, and

batting practice. CA9.FER025-29, 038-40, 49-61, 10204, 122-36, 179, 183-84. The home team performs its

pregame activities first, followed by the visiting team.

5

CA9.FER50-51, 55-56, 179, 183-84. And in both the

regular and training seasons, teams perform daily

pregame routines based on game times. CA9.ER214

(because of similar game times, “your pregame work

is going to be done [at] similar times”). One inescapable reality cuts across leagues, teams, positions, employers, and worksites: teams have to share a single

field before games. Workdays are similar as a matter of

necessity.

B. Proceedings Below

The players explained to the district court how they

would prove their claims on a classwide basis. Establishing employee status would be primarily based on

petitioners’ own documents in which they repeatedly

refer to players as “employees.” The Uniform Player

Contract also uses variants of “employ” time and

again. App.3. In addition, petitioners provide employee benefits, like health insurance, workers’ compensation, and pension plans. And during the season—when petitioners pay some wages—petitioners

deduct employment-related withholdings like taxes.

Proving hours worked would be less straightforward

because petitioners did not keep time records, and

that is because they consider themselves exempt from

wage laws and associated time-keeping requirements.

Nevertheless, a variety of internal records will “fill

[that] evidentiary gap.”1 App.8. Pre-game schedules,

game schedules, travel itineraries, recorded game

lengths, payroll data, and testimony of dozens of witnesses can prove the lion’s share of a typical minor

league workday. App.130.

1 See Tyson, 136 S. Ct. at 1040.

6

Many witnesses testified, however, that team schedules do not tell the whole story. 2 Required team activities began earlier and continued later than schedules

reflect, including things like team meetings. App.13031 n.4. To estimate start-of-day and end-of-day team

activities, the players commissioned a player survey.

App.99-106. And contrary to petitioners’ unsupported

assertions (at 2, 25), the survey sample was, indeed,

“random” in accordance with standard survey methodology, as the district court mentioned three times.

App.100, 139, 162. The survey asked players when

they most often arrived at and departed from their

ballparks or training complexes. The players suggested a jury could use “[t]he 10th percentile … to reveal when the required team work began because it

represents the time by which 90% of respondents had

already arrived at work.” App.130.

In early proceedings, the district court certified a

Fair Labor Standards Act (FLSA) collective. Later, the

players moved for Rule 23 certification of classes under the wage-and-hour laws of eight states, covering

not only training seasons and the championship season, but also winter conditioning. Petitioners simultaneously moved to decertify the FLSA collective. They

also filed a motion to exclude the player’s preliminary

“pilot” survey. The district court granted petitioners’

motions and denied plaintiffs’ motion for certification.

Days later, the main survey of over 700 players was

completed. App.99. It addressed the criticisms petitioners had made of the pilot survey, and the players

sought leave to propose a narrowed FLSA collective

and Rule 23 classes, which the district court granted.

2 See, e.g., CA9.FER214; CA9.FER063-67, 074, 211; CA9.FER162-

67; CA9.SER844; CA9.SER405-06; CA9.SER425-26; CA9.SER311;

CA9.SER361; and CA9.SER374.

7

App.99-106. The players narrowed their class proposals “significantly,” proposing two Rule 23(b)(3)

training classes under Arizona and Florida law, and

one championship season class for the California

League. App.106-07, 174. They also proposed a Rule

23(b)(2) injunctive relief class and FLSA collective

with definitions that tracked the narrowed (b)(3) classes. App.106-07.

Petitioners again moved to exclude the players’ survey on relevancy and Daubert grounds, raising a raft

of new criticisms since their earlier objections had

been addressed. App.138. Though they cursorily disputed Rule 23(a)(2) commonality in a footnote, petitioners’ primary focus was Rule 23(b)(3)’s predominance requirement. App.122, 124. First, they argued

that variances among players’ work activities and

schedules defeated predominance. App.122. Second,

they argued that choice-of-law questions would turn

on individualized inquiries. App.123.

This time, the district court denied petitioners’ motion to exclude the survey, concluding that it was relevant and had been conducted in accordance with accepted principles of survey methodology. App.154-57.

Specifically, the court held that under labor law’s “continuous workday” rule—which presumes all activities

after the “whistle blows” are compensable—the survey’s average player arrival and departure times would

“be helpful to the jury, especially when considered in

combination with other evidence such as the daily

schedules and witness testimony.” App.154-55.

With respect to all proposed classes and the FLSA

collective, the court found “a number of common and

central questions that are likely to give rise to common answers,” including:

1) whether the Clubs and MLB are joint employers; 2) whether the activities Minor

8

League players perform at the ballpark and/or

in connection with games constitute “work” …;

and 3) whether the common compensation policies applied to Minor Leaguers by Defendants

under the Minor League Rules and Uniform

Player Contracts—including failure to pay

players a salary outside the championship

season and failure to pay minimum wage and

overtime during the championship season—

violate the applicable wage and hour laws.

App.165-66.

The court also found that variances in player work

activities and workday length did not predominate

over the common questions. By focusing on team activities, the players “have significantly reduced the

variations” and “the remaining variations are not so

significant as to preclude a jury from addressing

Plaintiffs’ claims on a classwide basis.” App.173-74.

The court also found “that the activities of minor

league players are, in fact, routinized.” App.159. And

the court found that the survey, “in combination with

other evidence … may be sufficient to allow a jury to

draw conclusions based on reasonable inference as to

when players were required to be at the ballpark and

how long after games they were required to remain at

the ballpark.” App.176.

Since the FLSA collective action would obviously be

controlled by federal law, there were no choice-of law

issues that could defeat certification, and it recertified

the collective. App.195. Likewise, the court concluded

that the proposed California class presented no choiceof-law issues because California law applied to those

claims, so it also certified a California class. App.187.

But the court denied certification of Arizona and

Florida classes due to its uncertainty that only Arizona and Florida law would apply to work performed

9

exclusively in those states: “the choice of law questions

that are likely [to] arise in connection with the Florida

and Arizona classes defeat the predominance requirement as to those classes.” App.189, 192.

The court also denied certification of a Rule 23(b)(2)

class. Contrary to petitioners’ recitation (at 9), however, the court’s sole reason was choice-of-law concerns:

As discussed above, it is not apparent that [it]

is appropriate to apply the law of the states

where spring training is conducted to the

claims of all class members. As a consequence,

the Court could not necessarily adjudicate the

claims of the Rule 23(b)(2) classes or fashion a

remedy (assuming Plaintiffs’ claims are meritorious) based on the law of only one or two

states. Instead, it could potentially be required to apply the law of numerous states to

Plaintiffs’ claims, which undermines the cohesiveness of the class and makes certification of

Plaintiffs’ proposed (b)(2) class inappropriate.

App.192. The court found no other “cohesiveness” impediments to those classes.

Both sides petitioned for Rule 23(f) interlocutory review, and the parties’ appeals followed.

C. The Ninth Circuit’s Decision

Much of the Ninth Circuit’s decision focused on the

choice-of-law question. In its reversal on that issue,

the court of appeals held that Florida law governs the

wage-and-hour claims for work performed exclusively

in Florida, and the same for Arizona. App.33-34. That

ruling, , which is not before this Court, thus removed

the only obstacle the district court had found to certification of the Florida, Arizona, and (b)(2) classes.

With that issue resolved, the court turned to Rule

23(a)’s four threshold requirements—commonality,

10

typicality, numerosity and adequacy. The court noted

that “defendants contest only adequacy on appeal” (an

issue not raised in the petition) and therefore did not

consider commonality, instead focusing on petitioners’

(b)(3) predominance arguments. App.11 n.5.

As a preface to its predominance analysis, the court

explained two other rules upon which the players had

relied: the continuous workday rule and this Court’s

holding regarding the use of representative evidence

in a wage-and-hour class action in Tyson Foods, Inc.

v. Bouaphakeo, 136 S. Ct. 1036 (2016). The continuous

workday rule, recognized in IBP, Inc. v. Alvarez,

546 U.S. 21 (2005), “presumes that once the beginning

of the workday is triggered, an employee performs

compensable work throughout the rest of the day until

the employee completes their last principal activity …

whether or not the employee actually engages in work

throughout that entire period.” App.42. And in Tyson,

this Court held that “representative evidence” could

be used to prove liability in a wage-and-hour class action, so long as the evidence would be admissible in an

individual action. App.40-41.

The Ninth Circuit’s discussion addressed petitioners’ two main predominance arguments. First petitioners contended that because the survey “asked only

about arrival and departure times at the ballpark and

not about what activities the players actually performed while at the ballpark,” the players could not

rely on the continuous workday rule “because there is

no way to determine the beginning or end of the ‘workday.’” App.43-44. Second, they contended that “significant variations in players’ arrival and departure

times” defeated predominance. App.44.

With respect to the Florida and Arizona classes, the

court of appeals “easily” affirmed the district court’s

Rule 23(b)(3) finding that the common questions predominated over any individualized questions because

11

during those training seasons “virtually all players

are completely unpaid for their participation.” App.44.

Therefore—as the district court correctly held

—liability can be established simply by showing that the class members performed any compensable work. That is easily resolved on a

classwide basis by answering two questions:

(1) are the players employees of defendants,

and (2) do the minor league team activities during these periods constitute compensable work

under the laws of either Arizona or Florida? We

hold that these two “common, aggregation-enabling issues in the case are more prevalent

[and] important than the non-common, aggregation-defeating, individual issues,” therefore

making certification appropriate.

App.45 (quoting Tyson, 136 S. Ct. at 1045). The court

agreed “that as to these classes, many of defendants’

protests go to damages, not liability.” App.46.

The court further noted that the survey “was but one

piece of the plaintiffs’ representative evidence—evidence that also included hundreds of internal team

schedules and public game schedules, payroll data,

and the testimony of both players and league officials.” Id.; see App.44 (“despite defendants’ repeated

suggestions to the contrary, the representative evidence offered by plaintiffs was not limited to just the

Main Survey”). Even without the survey, “team schedules will serve to conclusively demonstrate that the

players spent time working for which they were uncompensated.” App.47-48.

The court also affirmed the district court’s finding

that common questions predominated for the California class. Because California class members “do get

paid, albeit not much,” their claims would require

12

more than just proof of “any compensable work,” unlike the Florida and Arizona classes. App.45, 48. But

even so, “team schedules alone—independent of the

Main Survey or any other evidence—may suffice to

show overtime liability” because “65-85% of California

League players had at least one workweek with games

on all seven days, and … nearly half of all workweeks

included games on all seven days. For those workweeks, the players would be entitled to overtime pay

for their work on the seventh day of the workweek.”

App.49-50.

The court also rejected petitioners’ survey-related

predominance arguments. Petitioners did not challenge the district court’s Daubert ruling, so the Ninth

Circuit did not consider any question concerning the

survey’s admissibility. Petitioners instead argued that

admissibility is not enough at the certification stage:

“The rigorous analysis of expert evidence proffered to

satisfy class … requirements is not a question of

threshold admissibility” because such evidence must

satisfy a “heightened ‘admissibility-plus’ standard.”

Def. Br. (ECF No. 38) at 45. The court of appeals disagreed, holding that under Tyson, “where the evidence

is admissible—for expert evidence, using the Daubert

standard—then the ‘no reasonable juror’ standard at

the class certification stage applies.” App.41.

Because defendants do not challenge the district court’s ruling on admissibility under

Daubert, the defects they have identified with

the Main Survey could only have defeated certification upon a conclusion that all of the representative evidence offered—the Main Survey, schedules, testimony, and the like—could

not have “sustained a reasonable jury finding

as to hours worked in each employee’s individual action.”

13

App.51 (quoting Tyson, 136 S. Ct. at 1046-47). The district court had “found the opposite”—that the survey

in combination with other evidence was sufficient to

sustain such a jury finding—so the Ninth Circuit then

considered “whether ‘the record here provides [a] basis

for [us] to second-guess that conclusion.’” App.51 (quoting Tyson, 136 S. Ct at 1049).

The Court looked to the definition of “hours worked,”

which “includes all the time the employee is suffered

or permitted to work, whether or not required to do

so.’” App.52; see also discussion at note 5, infra, (noting similarity of Arizona and Florida law). The court

concluded that California’s interpretation of those definitions entitle an employee to compensation for “all

time the employer ‘permit[s]’ an employee to work,

even if the work is not required.” App.53. (emphasis in

original). “Thus, a player who arrives early or stays

late at the ballpark of their own volition and performs

‘work’ activities during that time is still owed compensation because the player was ‘permitted’ to work, despite the work not being required.” App.53.

And under California law, “if players were expected

to arrive or depart at a particular time—whether that

requirement was de facto or official—it is immaterial

what activities the players actually engaged in while

at the ballpark.” App.53. So “[e]ven if the players

spent their time at the ballpark doing things like eating or showering, they were still … owed compensation.” App.53. Thus, the Court affirmed the district

court’s conclusion that the players may “use their representative evidence—especially the Main Survey and

the testimony of players and league officials—to persuade a jury that they were required to be at the ballpark at particular times.” App.51-52, 54.

Last, the court of appeals held that Rule 23(b)(2) has

no extra-textual (b)(3)-like “cohesiveness” requirement. App.34. The district court had held that because

14

“it could potentially be required to apply the law of numerous states” to the proposed (b)(2) class’s claims for

injunctive relief, the class was insufficiently “cohesive” for (b)(2) certification. App.192. The Ninth Circuit reversed: “Although we have never explicitly addressed whether ‘cohesiveness’ is required under Rule

23(b)(2), courts that have imposed such a test treat it

similarly to Rule 23(b)(3)’s predominance inquiry—

something we have previously rejected in no uncertain

terms.” App.34. The court “therefore remand[ed] for

the district court to consider anew whether to certify

the proposed Rule 23(b)(2) class.” App.35.

Judge Ikuta dissented, but only on state law

grounds (specifically choice-of-law grounds). App.6489. She expressed no disagreement with any other aspect of the majority’s Rule 23 analysis. Petitioners

moved for rehearing en banc, but no judge called for a

vote. App.90-91.

15

REASONS FOR DENYING THE PETITION

I.

THE DECISION BELOW IS CORRECT

AND DOES NOT CONFLICT WITH

WAL-MART OR FERRERAS.

This Court held in Wal-Mart, as did the Third Circuit in Ferreras, that the plaintiff-employees had

failed to demonstrate company-wide policies that resulted in the same injury to all members of those proposed classes. The plaintiffs had thus failed to establish any requisite Rule 23(a)(2) common question necessary to proceed as a class action.

In this case, by contrast, the players established

league-wide policies not to pay wages during training

seasons and never to pay overtime. The district court

found those policies give rise to common questions

that “give rise to common answers,” including whether

players are petitioners’ “employees,” whether their

baseball activities constitute “work,” and whether petitioners’ policies violate applicable wage-and-hour

laws. App.165. And because petitioners did not challenge that commonality finding on appeal, App.11 n.5,

the Ninth Circuit did not decide any commonality

question. Nor did the Ninth Circuit have reason to create an “exception” to Wal-Mart’s commonality holding.

The Ninth Circuit thus correctly held that petitioners’ challenge to the player survey in “reliance on WalMart is misplaced” and that a different decision of this

Court—Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct.

1036 (2016)—“controls.” App.55-56. In Tyson, this Court

held that statistical “representative” evidence may be

used in wage-and-hour class actions for “inferring the

hours an employee has worked … so long as the [evidence] is otherwise admissible,” even though individual

employees took different amounts of time to perform the

uncompensated task. Id. at 1047-49. But petitioners did

“not challenge the district court’s ruling on

16

admissibility” (App.51), and instead insisted that “[t]he

rigorous analysis of expert evidence proffered to satisfy

class … requirements is not a question of threshold admissibility” because such evidence must satisfy a

“heightened ‘admissibility-plus’ standard.” Def. Br.

(ECF No. 38) at 45. The court rejected that view, relying

on Tyson’s holding that “[o]nce a district court finds [representative] evidence to be admissible, its persuasiveness is, in general, a matter for the jury.” 136 S. Ct. at

1049. It is to be judged under the “no reasonable juror”

standard—“the same standard of proof that would apply

in any case.” Id. at 1051 (Roberts, C.J., concurring).

So, the court of appeals held that the concededly admissible player survey could, in combination with

other evidence, be used in this wage-and-hour class

action to establish the average hours players worked.

It also held that the players’ evidence of hours

worked—not just the survey in isolation—must be

judged by the “no reasonable juror” standard applicable in any other case. The decision below is thus a

straightforward application of Tyson and does not

merit this Court’s review.

A. The decision in Tyson

“Whether and when statistical evidence can be used

to establish classwide liability will depend on the purpose for which the evidence is being introduced and on

the elements of the underlying cause of action.” Tyson,

136 S. Ct. at 1046 (internal punctuation omitted). In a

wage-and-hour class action involving an employer’s

violation of its duty to keep time records, statistical

proof of the average time employees spent in uncompensated work activities is admissible if that evidence

would be admissible in an individual employee’s case,

even though individual employees took different

amounts of time to perform the uncompensated work.

Id. at 1047-49.

17

In Tyson, employees at a pork processing plant filed

a class action for unpaid, off-the-clock time spent donning and doffing protective gear. Id. at 1042. Class

members performed different work, worked in different departments, and wore different protective gear:

“The exact composition of the gear depend[ed] on the

tasks a worker perform[ed] on a given day.” Id. (kill,

cut, and retrim departments, where hogs are slaughtered, trimmed, or prepared for shipment). And “employees in different departments donned and doffed

for different amounts of time.” Id. at 1052 (Roberts,

C.J., concurring) (emphasis added). Because Tyson

had not kept records of time spent donning and doffing, the workers offered “representative evidence”

from a sample, based on an expert’s estimation of the

average time workers spent donning and doffing. Id.

at 1043-44.

Tyson did not challenge “the statistical validity” of

the workers’ studies under Daubert, but instead argued “that the varying amounts of time it took employees to don and doff different protective equipment

made the lawsuit too speculative for classwide recovery.” Id. at 1044. It objected to class certification “because of the variance in protective gear each employee

wore,” which meant “the employees’ claims were not

sufficiently similar to be resolved on a classwide basis.” Id. at 1043.

Tyson also did “not dispute that there [were] important questions common to all class members, the

most significant of which is whether time spent donning and doffing the required protective gear is compensable work.” Id. at 1045-46. But because every employee needed to prove that time spent donning and

doffing resulted in overtime for which they had not

been paid, Tyson argued “that these necessarily person-specific inquiries into individual work time pre-

18

dominate over the common questions raised by respondents’ claims, making class certification improper.” Id. at 1046.

The employees contended that “individual inquiries

are unnecessary because it can be assumed each employee donned and doffed for the same average time

observed.” Id. Tyson argued “that [the] study manufactures predominance by assuming away the very

differences that make the case inappropriate for

classwide resolution. Reliance on a representative

sample, petitioner argues, absolves each employee of

the responsibility to prove personal injury, and thus

deprives petitioner of any ability to litigate its

defenses to individual claims.” Id.

1. Tyson: an average of hours worked can

be used to prove a class’s hours worked

Whether a jury could “assume[] each employee

donned and doffed for the same average time” was

“the central dispute” in Tyson. 136 S. Ct. at 1046. And

in a wage-and-hour action involving an employer’s violation of its statutory duty to keep time records, the

Court held, such an inference is permissible:

Instead of punishing “the employee by denying

him any recovery on the ground that he is unable to prove the precise extent of uncompensated work,” … “an employee has carried out

his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence

to show the amount and extent of that work as

a matter of just and reasonable inference.” Under these circumstances, “[t]he burden then

shifts to the employer to come forward with evidence of the precise amount of work performed

19

or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence.”

Id. at 1047 (citations omitted) (quoting Anderson v.

Mt. Clemens Pottery Co., 328 U.S. 680 (1946)).

So according to Tyson, an average donning-and-doffing time constituted “sufficient evidence” under Mt.

Clemens “to show the amount and extent of … work as

a matter of just and reasonable inference.” That kind

of representative evidence, the Court held, could thus

also be used in a class action because it would have

been “sufficient to sustain a jury finding as to hours

worked if it were introduced in each employee’s individual action.” Id. at 1048.

2. Tyson: the persuasiveness of evidence of

average hours worked is a jury question.

The Court also addressed the standard for judging

the sufficiency of evidence of average hours worked in

a wage-and-hour class action at certification:

Once a district court finds evidence to be admissible, its persuasiveness is, in general, a

matter for the jury. Reasonable minds may

differ as to whether the average time [an expert] calculated is probative as to the time actually worked by each employee. Resolving

that question, however, is the near-exclusive

province of the jury. The District Court could

have denied class certification on this ground

only if it concluded that no reasonable juror

could have believed that the employees spent

roughly equal time donning and doffing. The

District Court made no such finding, and the

record here provides no basis for this Court to

second-guess that conclusion.

136 S. Ct. at 1049 (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250-52 (1986)).

20

B. The decision below is a straightforward

application of Tyson.

Given the posture of this case before the Ninth Circuit, the court correctly held that “Tyson controls.”

App.55. Both are “wage and hour cases where the employer has failed to keep proper records.” App.55. In

both cases, “the employees … were paid under the

same policy”—or rather not paid under common policies. 136 S. Ct. at 1040, 1042. Here, players were never

paid overtime and not paid at all during training seasons pursuant to uniform policies that petitioners no

longer “seriously contest” or “credibly dispute.”3

App.45-49. In both cases, the employers conceded the

existence of Rule 23(a)(2) common questions, questions that can be resolved for all class members in “one

stroke.” Wal-Mart, 564 U.S. at 350.

And in both cases, the employers conceded the admissibility of the statistical studies offered as representative evidence of hours worked. Although petitioners initially moved to exclude the player survey

here, the district court denied their motion, and petitioners did not challenge that ruling on appeal.

App.51. The consequence of that concession under Tyson is clear and dispositive of petitioners’ first question:

though “[r]easonable minds may differ as to whether

the average” arrival and departure time “is probative

as to the time actually worked by each employee,”

“[r]esolving that question … is the near-exclusive

province of the jury.” 136 S. Ct. at 1049.

3 Petitioners say players “were paid under different compensa-

tion terms.” Pet. at i, 35. But the wages players received is not at

issue; at issue is the pay players did not receive, and that does

not vary from class member to class member. None received pay

during training seasons, and none were paid overtime. So like

the workers in Tyson, all players were denied compensation

“under the same policy.” 136 S. Ct. at 1048.

21

As the Ninth Circuit explained, because petitioners

did “not challenge the district court’s ruling on admissibility under Daubert, the defects they have identified with the Main Survey could only have defeated

certification upon a conclusion that all of the representative evidence offered—the Main Survey, schedules, testimony, and the like—could not have ‘sustained a reasonable jury finding as to hours worked in

each employee’s individual action.’” App.51 (emphasis

added). Which also disposes of petitioners’ contrived

claim (at 16) that “[u]nder the Ninth Circuit’s view, …

supposedly ‘representative’ evidence suffices to justify

class certification so long as it is minimally probative,

even if it would plainly not suffice in a class member’s

individual action.” The court expressly acknowledged

that representative evidence of hours work must be

capable of sustaining a jury finding “in each employee’s individual action.” App.51.

C. The Ninth Circuit created no wage-andhour Tyson-exception to Wal-Mart.

The decision below does not conflict with Wal-Mart,

and because there is no conflict, the court of appeals

had no reason to create—and did not create—any kind

of exception to Wal-Mart. “The crux” of Wal-Mart, a

Title VII sex discrimination case, was “commonality—

the rule requiring a plaintiff to show that ‘there are

questions of law or fact common to the class.’” 564 U.S.

at 349. In a sex discrimination case, a would-be class

representative must provide “significant proof ” of an

employer’s policy of discrimination, which acts as

“glue” in a class action, so that “all the class members’

claims for relief will produce a common answer to the

crucial question why was I disfavored.” Id. at 352-53.

The plaintiffs in Wal-Mart lacked such a discriminatory policy, so they proposed to use statistical evidence

of disparate impact on the female-employee class. This

22

Court held that “[m]erely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice” to demonstrate a discriminatory policy. 564 U.S. at 357. At bottom, “[b]ecause respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we

have concluded that they have not established the existence of any common question.” Id. at 359.

In Tyson, this Court said Tyson’s “reliance on WalMart” was “misplaced” because in Wal-Mart “this

Court did not reach Rule 23(b)(3)’s predominance

prong, holding instead that the class failed to meet

even Rule 23(a)’s more basic requirement that class

members share a common question of fact or law.”

136 S. Ct. at 1048. Without a common policy of discrimination, the employees could not “have prevailed

in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers.” Id.

“In contrast, the study [in Tyson] could have been sufficient to sustain a jury finding as to hours worked if

it were introduced in each employee’s individual action.” Id.

The same is true here. Average arrival and departure times would be admissible in an individual players’ case to estimate the beginning and ending of team

activities, just as average donning and doffing times

would have been admissible in a Tyson worker’s individual case. And like Tyson, the decision below does

not conflict with Wal-Mart because Wal-Mart is a commonality case; this case is not. Petitioners have conceded commonality, no doubt because of their two undisputed policies not to pay minimum and overtime

wages—league-wide policies that further distinguish

this case from Wal-Mart. The players here never

needed statistical evidence to overcome the absence of

23

common policy, and the Ninth Circuit did not pass on

any such question. There is no conflict with Wal-Mart.

D. The Ninth Circuit conducted the required “rigorous analysis” of the survey.

Both lower courts conducted the “rigorous analysis”

Rule 23 requires. And under Tyson, the required analysis of representative evidence of hours worked in a

wage-and-hour case has two components: “admissibility under Daubert and its appropriateness for meeting

class certification requirements under Tyson.” App.55.

Here, because petitioners did not challenge the district court’s admissibility ruling, the Ninth Circuit

proceeded directly to the Tyson analysis and applied

“the same standard of proof that would apply in any

case”—the “no reasonable juror” standard. Tyson,

136 S. Ct. at 1051 (Roberts, C.J., concurring). “Once a

district court finds [representative] evidence to be admissible, … [t]he District Court could have denied

class certification on this ground only if it concluded

that no reasonable juror could have believed that the

employees spent roughly equal time” working. That is

precisely the analysis the Ninth Circuit conducted.

App.51-54.

Instead of engaging the court’s analysis, petitioners

ridicule the survey (at 15), suggesting that a measure

of players’ arrival and departure times is “borderline

irrelevant.” But as the Ninth Circuit explained, arrival and departure times are probative of “hours

worked” under California law: “‘hours worked’ includes all time the employer ‘permit[s]’ an employee to

work, even if the work is not required and the employee is not under the employer’s control.” App.53

(quoting Morillion v. Royal Packing Co., 995 P.2d 139,

143 (Cal. 2000)). “ Thus, a player who arrives early or

stays late at the ballpark of their own volition and performs ‘work’ activities during that time is still owed

24

compensation because the player was ‘permitted’ to

work, despite the work not being required.”4

The “rigorous analysis” this Court’s precedents require “generally involves considerations that are enmeshed in the factual and legal issues comprising the

plaintiff ’s cause of action.” Wal-Mart, 564 U.S. at 351.

That is precisely what the Ninth Circuit did—it considered “the factual and legal issues comprising the

plaintiff ’s cause of action.” It is petitioners who undertake no such analysis, resorting instead to analysisby-labels, like their assertion that the survey is “borderline irrelevant.” Putting aside their relevancy

waiver, petitioners never explain by what standard—

if any—they judge the survey’s relevancy.

And petitioners’ urge “rigorous analysis” of the survey in isolation from all other evidence of hours

worked, but that would be improper. In Wal-Mart, for

example, the Court reviewed all the evidence the employees proffered. 564 U.S. at 346 (“three forms of

proof,” statistical, anecdotal, and testimonial). That is

4 The court’s discussion focused on California law because of

its earlier determination that “the Arizona and Florida classes

can demonstrate liability simply by showing they worked any

hours,” while proving some of the California overtime claims

might require use of the survey. App.49. But the survey is certainly relevant under both Arizona and Florida law, too. See Ariz.

Admin. Code R20-5-1202 (defining “hours worked” as “including

all time during which an employee is on duty or at a prescribed

work place and all time the employee is suffered or permitted to

work”); Fla. Stat. § 448.110(3) (incorporating federal law “as interpreted by applicable federal regulations”); 29 C.F.R. § 778.223

(requiring compensation for “(a) [a]ll time during which an employee is required to be … on the employer’s premises or at a prescribed workplace; and (b) [a]ll time during which an employee is

suffered or permitted to work whether or not he is required to do

so”); § 790.6(b) (defining “workday” and “includ[ing] all time

within” the workday “whether or not the employee engages in

work throughout all of that period”).

25

what the “no reasonable juror” standard requires and

exactly what the lower courts did here. App.51.; see

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150-51 (2000).

E. There is no split with the Third Circuit.

Petitioners attempt to invent a circuit split, arguing

the decision below conflicts with the Third Circuit’s

later decision in Ferreras v. American Airlines, Inc.,

946 F.3d 178 (3d Cir. 2019). But Ferreras, like WalMart, is a Rule 23(a)(2) commonality case in which the

plaintiffs could not “satisfy even the commonality

standard.” 946 F.3d at 185. So, for all the same reasons that the Ninth Circuit’s decision is not in conflict

with Wal-Mart, it is also not in conflict with Ferreras.

Ferreras is also distinguishable because American

Airlines had a policy of paying for the work at issue,

so long as it was approved by a supervisor as an “exception” to “ordinary work hours.” Id. at 181. Unlike

here, the Ferreras plaintiffs did not allege that the

“overarching [American] policy regarding exceptions

has deprived anyone in particular of compensation to

which he or she was entitled.” Id. at 185. American’s

policy to pay for supervisor-approved time is the very

opposite of the players’ claim here of petitioners’ policies not to pay.5

Petitioners also claim (at 27) that “the Third Circuit

held that survey evidence of arrival and departure

times was not sufficient to allow the employees to litigate their claims on a classwide basis.” That is untrue.

The Ferreras plaintiffs offered no representative evidence, yet another critical difference between this case

5 The lack of a common policy also led inescapably to the court’s

conclusion that the plaintiffs had failed to show predominance.

946 F.3d at 186.

26

and Ferreras. Id. at 187. There is no conflict between

the Ninth Circuit’s decision and Ferreras.

II.

THERE IS NO CIRCUIT SPLIT AS

TO RULE 23(b)(2) COHESIVENESS.

Rule 23(b)(2) authorizes injunctive relief classes

when “final injunctive relief … is appropriate respecting the class as a whole.” The Ninth Circuit rejected

any (b)(3)-like “predominance” inquiry masquerading

as an extratextual (b)(2) “cohesiveness” requirement:

“Although we have never explicitly addressed whether

‘cohesiveness’ is required under Rule 23(b)(2), courts

that have imposed such a [cohesiveness] test treat it

similarly to Rule 23(b)(3)’s predominance inquiry—

something we have previously rejected in no uncertain

terms.” App.34.

That holding is unquestionably correct. Even petitioners do not deny that “Rule 23(b)(2) does not contain

a separate requirement that ‘questions of law or fact

common to class members predominate.’” Pet. at 29.

The Ninth Circuit’s view of (b)(2) mirrors what this

Court has held:

The procedural protections attending the

(b)(3) class—predominance, superiority, mandatory notice, and the right to opt out—are

missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class.

When a class seeks an indivisible injunction

benefiting all its members at once, there is no

reason to undertake a case-specific inquiry

into whether class issues predominate …. Predominance and superiority are self-evident.

27

Wal-Mart, 564 U.S. at 362-63 (emphasis in original).6

Neither this Court nor the court below held that a

(b)(2) class need not be “cohesive,” but they both explicitly held that (b)(2) does not require predominance

inquiries to ensure (b)(2) “cohesiveness.” In other

words, “cohesiveness” is a built-in feature of Rule

23(b)(2)’s text, which achieves all the cohesiveness required because predominance is “self-evident.”

In the nine years since this Court decided Wal-Mart,

no circuit has held that Rule 23(b)(2) requires a predominance-like inquiry. And in the year since the

Ninth Circuit issued its decision, no court has disputed its holding that Rule 23(b)(2) does not require a

predominance-like inquiry. Nor do petitioners. Pet. at

29 (“Rule 23(b)(2) does not contain a separate requirement that ‘questions of law or fact common to class

members predominate”). And though the Ninth Circuit mentioned other “courts,” it did not name any

courts, nor did it say that a sister circuit had engaged

in a (b)(3)-like predominance inquiry under the guise

of a (b)(2) cohesiveness requirement.

Petitioners cite five circuit decisions as conflicting

with the decision below. The outcome in none turned

on the application of a (b)(3)-like predominance inquiry. Three of the decisions pre-date Wal-Mart, so

even if they did conflict, further percolation in the

lower courts would likely resolve the split, once those

circuits consider the issue in light of Wal-Mart.

The Tenth Circuit’s decision in Shook v. Bd. of Cty.

Comm’rs of El Paso, 543 F.3d 597 (10th Cir. 2008),

does not conflict with Wal-Mart or the decision below.

Although the court held that “Rule 23(b)(2) demands

a certain cohesiveness among class members with respect to their injuries,” id. at 604, it did not undertake

6 In Wal-Mart, the Court addressed both Rule 23(a)(2) com-

monality and the (b)(2) requirement for an injunctive relief class.

28

a predominance-like inquiry under the rubric of “cohesiveness.” It instead adhered to the text of Rule 23(b)(2).

As then-Judge Gorsuch explained, “[t]he latter half

of Rule 23(b)(2) requires that final injunctive relief be

appropriate for the class as a whole.” Id. (emphasis in

original). “[U]nder Rule 23(b)(2) the class members’

injuries must be sufficiently similar that they can be

addressed in a single injunction that need not differentiate between class members.” Id. Though the court

couched that textual requirement in terms of “cohesiveness,” the court conducted no (b)(3)-like predominance inquiry. The court instead noted that the plaintiffs’ “prayer for relief asks the district court to craft

an injunction that takes into account the specific circumstances of individual inmates’ plights.” Id. at 605.

So “different injunctions would be required to establish the appropriate behavior towards different groups

of class members.” Id. “[D]ifferences in proof or individualized issues” can defeat (b)(2) certification, and

when they do, it is for “failure to meet Rule 23(b)(2)’s

requirement that relief apply to the class as a whole.”

Id. at 608. There is no conflict between Shook and the

decision below. What the court wrote in Shook is essentially what Wal-Mart said later: the cohesiveness

Rule 23(b)(2) requires is an integral feature of the

rule’s requirement “that final injunctive relief be appropriate for the class as a whole.”

Nor did the Seventh Circuit approve a (b)(3)-like

predominance inquiry in Kartman v. State Farm Mut.

Auto. Ins. Co., 634 F.3d 883 (7th Cir. 2011). That court

observed, “Where a class is not cohesive such that a

uniform remedy will not redress the injuries of all

plaintiffs, class certification is typically not appropriate.” 634 F.3d at 893 n.8 (citing Shook). Which is no

more than a faithful restatement of the Rule’s text.

In Romberio v. Unumprovident Corp., 385 F. App’x

423 (6th Cir. 2009), the court expressly acknowledged

29

that “Rule 23(b)(2), unlike Rule 23(b)(3), contains no

predominance requirement.” Id. (citing Barnes v. Am.

Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998)). And

the court undertook no predominance-like inquiry.7 It

instead found (b)(2) certification inappropriate because the constructive trust the plaintiffs’ sought

could not be imposed for the class as a whole “without

individualized review of every claim.” Id.

Neither of the two post-Wal-Mart cases on which petitioners rely come close to conflicting with the decision below. In both, the courts expressly held that “a

Rule 23(b)(2) class need not meet the additional predominance and superiority requirements of Rule

23(b)(3).” Ebert v. General Mills, 823 F.3d 472, 480

(8th Cir. 2016); see Gates v. Rohm and Haas Co., 655

F.3d 255, 263-64 (3d Cir. 2011). Ebert, quoting WalMart, explained that for a (b)(2) class, “the relief

sought must perforce affect the entire class at once.”

823 F.3d at 480. And Gates relied on Wal-Mart’s holding that “[t]he key to the (b)(2) class is ‘the indivisible

nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can

be enjoined or declared unlawful only as to all of the

class members or as to none of them.” 655 F.3d at 264.

Both cases adhere to Rule 23(b)(2)’s text, and neither

employed nor approved a (b)(3)-like predominance inquiry. There is no circuit split.

III.

THIS CASE IS A POOR VEHICLE FOR

CONSIDERING EITHER QUESTION.

Both questions presented involve intractable waiver

problems, arising from issues abandoned or not raised

below and not considered by the court of appeals.

7 The dissent’s criticisms did not accuse the majority of utiliz-

ing a (b)(3)-like predominance inquiry under the guise of (b)(2)

cohesiveness. 385 F. App’x at 433 (Clay, J., dissenting).

30

Equally problematic is that resolution of either question is not only premature, but will also not impact the

certification of any class. A reversal on question one

will not result in the decertification of any (b)(3) class,

and a reversal on question two will have no effect on

(b)(2) proceedings on remand. Interlocutory review in

this case implicates many of the problems this Court

has repeatedly identified in interlocutory petitions.

For these reasons alone, the petition should be denied.

A. Both questions hinge on waived issues.

The Court’s “traditional rule” is to deny certiorari

“when the question presented was not pressed or

passed upon below.” United States v. Williams,

504 U.S. 36, 41 (1992) (internal quotation marks omitted). Ordinarily, the Court does “not decide in the first

instance issues not decided below,” “without the benefit of thorough lower court opinions to guide [its] analysis of the merits. Ours is ‘a court of final review and

not first view.’” Zivotofsky v. Clinton, 566 U.S. 189,

201 (2012).

1. Petitioners have waived key elements of

the survey question.

Petitioners have waived key elements of the question “whether Tyson sanctions the use of statistical

surveys to establish commonality and predominance

for a wage-and-hour class.” As already noted, petitioners abandoned any challenge to Rule 23(a) commonality below. Without ever acknowledging what the common questions are, petitioners repeatedly insisted

that the common questions were swamped by individualized questions.8 The court of appeals noted that petitioners did not contest commonality, so it unsurprising that the court did not pass on the question. App.11

n.5. Petitioners’ commonality arguments are waived.

8 Def. Br. (ECF No. 38) at 3, 24, 28, 59, 62, 75.

31

Question one is also an attempt to resuscitate the

issue of “the use of statistical surveys.” Petitioners say

(at 3) the players’ “purportedly ‘representative’ evidence … would never suffice to establish liability (or

even be admissible) in an individual action,” but that,

too, is a waived issue because petitioners did “not challenge the district court’s ruling on admissibility.”

App.51. Nor did they appeal the district court’s finding that the survey “may be helpful to the jury, especially when considered in combination with other evidence such as the daily schedules and witness testimony.” App.155. Even in this Court, petitioners concede the survey’s relevance, however grudgingly. Pet.

15 (survey is “borderline-irrelevant”). No question of

the survey’s admissibility was presented to or decided

by the court of appeals.

Commonality and admissibility are central components of question one. The question is thus waived.

2. The “cohesiveness” question was neither

preserved nor decided below.

Petitioners’ second question—“whether cohesiveness is required for class certification under Rule

23(b)(2)”—is not an issue they pressed below. Nor did

the Ninth Circuit hold that (b)(2) does not require “cohesiveness,” petitioners’ contrary assertion notwithstanding. The court narrowly held that Rule 23(b)(2)

requires no (b)(3)-like predominance inquiry. App.34-35.

Petitioners barely mentioned “cohesiveness” in the

lower courts. They did argue that choice-of-law issues

“undermine the cohesiveness of the class.” Def. Br.

(ECF No. 38) at 76-77. But in response to the players’

challenge to the district court’s adoption of a (b)(2) predominance-like “cohesiveness” requirement,9 petition-

9 See Plf. Br. (ECF No. 16) at 45.

32

ers did not defend the district court’s ruling. They neutrally footnoted that a “majority of the Circuits have

expressly recognized a ‘cohesiveness’ requirement in

Rule 23(b)(2).” Id. at 77 n.21. Even then they took no

position on the question and did not argue that the

proposed (b)(2) class is not cohesive, apart from their

choice-of-law argument. Thus, the question presented

to this Court, having not been pressed or decided below, is not preserved.

B. Reversal on either question would have

little or no practical effect on the outcome of proceedings on remand.

1. The FLSA collective will proceed.

Petitioners discuss FLSA collectives at length in

their petition, but neither question presented does.

They are both Rule 23 questions. FLSA collectives are

certified under the FLSA, not Rule 23. The “FLSA permits employees to bring lawsuits on behalf of ‘themselves and other employees similarly situated.’

29 U.S.C. § 216(b).” App.56. Under Ninth Circuit precedent, the FLSA’s standard differs from Rule 23 because it does not include the rule’s “predominance, adequacy, and superiority requirements.” See Campbell

v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018).

The Ninth Circuit thoughtfully “address[ed] whether

the district court properly certified the FLSA collective action,” and petitioners present no question challenging that ruling. Petitioners have thus waived any

question regarding the FLSA collective.

2. The Rule 23 classes will proceed.

There are “strong prudential considerations disfavoring the exercise of the Court’s certiorari power”

when the parties’ rights “would be unaffected” or the

question presented “hypothetical.” Padilla v. Hanft,

126 S. Ct. 1649, 1650 (2006) (Kennedy, J., concurring

33

in denial of certiorari). A reversal here on either question would not affect any class certification on remand.

Taking the second question first, no (b)(2) class has

even yet been certified, much less an allegedly “incohesive” one. The Ninth Circuit remanded the question

of (b)(2) certification with only one directive: that the

district court not conduct a (b)(3) predominance inquiry as part of its reconsideration. App.35. So until a

(b)(2) class is certified over some yet-to-be-discovered

“cohesiveness” objection, there is no question about

(b)(2) “cohesiveness” this Court can resolve that could

conceivably “affect the rights” of the parties here.

Petitioners’ first question is similarly flawed. A reversal would not undo any of the (b)(3) class certifications. It could not affect the Arizona or Florida classes

because those certifications did not depend on use of

the survey. Both are training season classes “during

which virtually all players are completely unpaid for

their participation” (App.44), so both can establish liability “simply by showing that the class members

performed any compensable work.” App.45-47.

The California class can also prove many of their

claims through “team schedules alone—independent

of the Main Survey or any other evidence.” App.49.

Working seven days in a workweek constitutes overtime under California law, and “approximately 6585% of California League players had at least one

workweek with games on all seven days” and half the

season included seven-day workweeks, all of which

can be established without the survey. App.48-49, 50.

The “strong prudential considerations disfavoring

the exercise of the Court’s certiorari power” when the

parties” rights “would be unaffected,” could scarcely

be stronger than in the context of this case: an interlocutory appeal from a class certification decision that

would not be impacted by a decision of this Court.

34

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ROBERT L. KING

Counsel of Record

GARRETT BROSHUIS

KOREIN TILLERY LLC

One U.S. Bank Plaza

505 North 7th Street

Suite 3600

St. Louis, MO 63101

(314) 241-4844

(rking@koreintillery.com)

August 12, 2020

Counsel for Respondents