Petition for Writ of Certiorari — Tyson Foods, Inc. v. Bouaphakeo ex rel. Situated, 135 S. Ct. 2806 (2015) (No. 14-1146)

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MAR 19 2015

14-1146 ===

No. 14-

IN THE

Supreme Court of the Anited States

TYSON Foops, INC..,

Petitioner,

PEG BOUAPHAKEO, et al., individually and on behalf

of all other similarly situated individuals,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL J. MUELLER CARTER G. PHILLIPS *

EMILY BURKHARDT JOSEPH R. GUERRA

VICENTE C, FREDERICK BECKNER III

EVANGELINE C. PASCHAL KATHLEEN MORIARTY

HUNTON & WILLLAMS MUELLER

2200 Pennsylvania CHRISTOPHER A. EISWERTH

Avenue, N.W. SIDLEY AUSTIN LLP

Washington, D.C. 20037 1501 K Street, N.W.

(202) 955-1500 Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

March 19, 2015 * Counsel of Record

QUESTIONS PRESENTED

I. Whether differences among individual class

members may be ignored and a class action certified

under Federal Rule of Civil Procedure 23(b)(3), or a

collective action certified under the Fair Labor

Standards Act, where liability and damages will be

determined with statistical techniques that presume

all class members are identical to the average

observed in a sample.

I]. Whether a class action may be certified or

maintained under Rule 23(b)(3), or a collective action

certified or maintained under the Fair Labor

Standards Act, when the class contains hundreds of

members who were not injured and have no legal

right to any damages.

(i)

PARTIES TO THE PROCEEDINGS

The petitioner is Tyson Foods, Inc. (“Tyson”), and

respondents are Peg Bouaphakeo, Mario Martinez,

Javier Frayre, Heribento Renteria, Jesus A. Montes,

and Jose A. Garcia, who filed suit on behalf of

themselves and other similarly situated individuals

at Tyson’s pork-processing plant in Storm Lake,

lowa.

RULE 26.9 STATEMENT

Tyson has no parent company, and no publicly held

corporation owns more than 10% of petitioner's stock.

TABLE OF CONTENTS

QUESTIONS PRESENTED..................cccccsscesseees

PARTIES TO THE PROCEEDINGS. ...................

RULE 26.9 STATEMENT .........0:sscccccssssesssssccseeees

TABLE OF AUTHORITIES .................cccccsseeseees

IIT sissenstsncnitinntiniemnniciicsitihtaneitiinag

FETE sctccseninesicciotnincnbenibinsivinaiteciannpinete

STATUTES AND RULES INVOLVED ...............

EE ticiensninniinisestnigansensiiniesincslsopseisisiedsbishaps

STATEMENT OF THE CASE...................scseseseees

REASONS FOR GRANTING THE PETITION...

Ul.

WHETHER CLASS OR COLLECTIVE

ACTIONS MAY BE CERTIFIED BASED

ON STATISTICS THAT ERRONEOUSLY

PRESUME ALL CLASS MEMBERS ARE

IDENTICAL TO AN AVERAGE

OBSERVED IN A SAMPLE IS AN

IMPORTANT AND RECURRING

QUESTION THAT HAS DIVIDED THE

Ca CII cicscictpnsosisiniinsiichitintiiadildssimiunst

THE CIRCUIT COURTS ARE DIVIDED

ON WHETHER A CLASS MAY BE

CERTIFIED WHERE THE CLASS

INCLUDES MEMBERS WHO WERE NOT

THE QUESTIONS PRESENTED ARE

IMPORTANT AND RECUR IN BOTH

CLASS ACTIONS UNDER RULE 23(B)\(3)

AND COLLECTIVE ACTIONS UNDER

TABLE OF CONTENTS—continued

SIE sipbissosssessicnssisccntensesbeinsannietinnsactsinmeets

APPENDICES

APPENDIX A: Bouaphakeo v. Tyson Foods,

Inc., 765 F.3d 791 (8th Cir. 2014) ............. ese

APPENDIX B: Bouaphakeo v. Tyson Foods,

Inc., No. 5:07-cv-04009 (N.D. Iowa Sept. 26,

APPENDIX C: Bouaphakeo v. Tyson Foods,

Inc., No. 5:07-cv-04009-JAJ (N.D. Iowa Aug.

Rt: ee ee een eee

APPENDIX D: Bouwaphakeo v. Tyson Foods,

Inc., No. CO7-04009-MWB (N.D. Iowa July 14,

APPENDIX E: Bouaphakeo v. Tyson Foods,

Inc., 564 F. Supp. 2d 870 (N.D. Iowa 2008)......

APPENDIX F: Bouaphakeo v. Tyson Foods,

Inc., No. 12-3753 (8th Cir. Nov. 19, 2014)........

APPENDIX G: Federal Statutes......................05.

APPENDIX H: Federal Rule..........................::008

APPENDIX I: Trial Exhibit.............................000+.

(iv)

TABLE OF AUTHORITIES

CASES Page

Amchem Prods., Inc. v. Windsor, 521 U.S.

a 25

Am. Express Co. v. Italian Color Rest., 133

5. SE RES race 31

Anderson v. Mt. Clemens Pottery Co., 328

U.S. 680 (1946), superseded on other

grounds by statute, Portal-to-Portal Act

of 1947, ch. 52, 61 Stat. 84, as recognized

in IBP, Inc. v. Alvarez, 546 U.S. 21

a catieaieeee teil cleachmoahanieceiie aacubibiataa 19

Broussard v. Meineke Disc. Muffler Shops,

Inc., 155 F.3d 331 (4th Cir. 1998)............. 19, 20

Carrera v. Bayer Corp., 727 F.3d 300 (3d

ERE Ta ert eco race U at 23

Cimino v. Raymark Indus., Inc.. 151 F.3d

I ae 21

Comcast v. Behrend, 133 S. Ct. 1426

ER EE nen ween ene ea 2,3

Coopers & Lybrand v. Livesay, 437 U.S.

ETERS ek aie ni Hever 31

In re Deepwater Horizon, 739 F.3d 790 (5th

Cir.), cert. denied sub nom. 135 S. Ct. 754

| SRE PSS SCE SEIN vn eens nese a EN 28

Denney v. Deutsche Bank AG, 443 F.3d 253

I, a emedueiaanial 28

DG ex rel. Stricklin v. Devaughn, 594 F.3d

I eee 27

Espenscheid v. DirectSat USA, LLC, 705

F.3d 770 (7th Cir. 20193)................ 16, 17, 18, 19

In re Fibreboard, 893 F.2d 706 (5th Cir.

EET IT ee, SLE ME No 20, 21

Genesis Healthcare Corp. v. Symezyk, 133

ee rien 26

TABLE OF AUTHORITIES—continued

Page

Jimenez v. Allstate Ins. Co., 765 F.3d 1161

(9th Cir. 2014), petition for cert. filed, 83

U.S.L.W. 3638 (Jan. 27, 2015) (No. 14-

a cacti taille 21

Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672

OL 0 SE 26, 27

Krell v. Prudential Ins. Co. of Am., 148

-# ) f (¢ 27

Lindsey v. Normet, 405 U.S. 56 (1972)......... 23

Lujan v. Defenders of Wildlife, 504 U.S.

RES ERO RESTS Aa enes serie 25

Mazza v. Am. Honda Motor Co., 666 F.3d

tC >. 28

McLaughlin v. Am. Tobacco Co., 522 F.3d

215 (2d Cir. 2008), abrogated on other

grounds, UFCW Local 1776 v. Eli Lilly &

Co., 620 F.3d 121 (2d Cir. 2010)................ 20

In re Nexium Antitrust Litig., 777 F.3d 9

tf: & 26, 27

Ortiz v. Fibreboard Corp., 527 U.S. 815

(RSET: SESE Screen en Rene 26

In re Rail Freight Fuel Surcharge Antitrust

Litig., 725 F.3d 244 (D.C. Cir. 2013)........ 28, 29

In re Urethane Antitrust Litig., 768 F.3d

1245 (10th Cir. 2014), petition for cert.

filed sub nom. No. 14-1091 (Mar. 9,

IT a isicescncenmeniameninepanehenaennnnnasnunnaems 24, 27

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.

SED IEE... sentecneunadeenenideaneennbenbeielte passim

STATUTES

EI I a ce 3

aT) eee 1,6

Ea: 1

vii

TABLE OF AUTHORITIES—continued

Page

Iowa Code § 91A.1, ef Seq. ............ccccceceeeeeeeees 6

RULE

. & hs § Seen l

Fed. R. Civ. P. 23 advisory committee's

I UII ccsncecvieciieadblconeadaclitesaulipinnsicenommacettadel 32

SCHOLARLY AUTHORITY

Allan Erbsen, From “Predominance” to

“Resolvability”” A New Approach to

Regulating Class Actions, 58 Vand. L.

a 25

2 Joseph M. McLaughlin, McLaughlin on

Class Actions: Law and Practice (10th ed.

EES ES SLR ee eee AML 31

OTHER AUTHORITIES

The 2015 Carlton Fields -’orden Burt Class

Action Survey (2015), available at http://

classactionsurvey.com/pdf/2015-class-

I aniitrintetennvieenciiintinendinanaiia 31, 32

Laurent Badoux, ADP, Trends in Wage and

Hour Litigation Over Unpaid Work Time

and Precautions Employers Should Take

(2012), available at http://www.lb7.

uscourts.gov/documents/12-19431.pdf....... 32

PETITION FOR A WRIT OF CERTIORARI

Tyson respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Eighth Circuit.

OPINIONS BELOW

The Eighth Circuit's opinion is reported at 765 F.3d

791 and reproduced at Pet. App. la—24a. The Eighth

Circuit’s unpublished order denying rehearing is

reproduced at Pet. App. 114a—-13la. The district

court’s unpublished orders denying Tyson's motion to

decertify the class and Tyson's post-trial motion are

reproduced at Pet. App. 25a—30a and 3la—38a. The

district court’s opinion granting class certification

and conditional certification of a collective action is

reported at 564 F. Supp. 2d 870 and is reproduced at

Pet. App. 4la—113a.

JURISDICTION

The court of appeals entered judgment on August

25, 2014, Pet. App. la, and denied rehearing on

November 19, 2014, Pet. App. 114a. On January 29,

2015, Justice Alito extended the time for filing a

petition for a writ of certiorari to and including

March 19, 2015. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTES AND RULES INVOLVED

This case involves Federal Rule of Civil Procedure

23(b)(3) and the Fair Labor Standards Act (“FLSA”)

provisions that authorize a private cause of action for

damages for unpaid overtime compensation, 29

U.S.C. §§ 207(a), 216(b), which are reproduced at Pet.

App. 132a—136a.

INTRODUCTION

In this case, a deeply divided Eighth Circuit

sanctioned the use of seriously flawed procedures

that many district courts have used to permit

certification and adjudication of class actions under

Rule 23(b)(3) and collective actions under the FLSA.

Plaintiffs are hourly workers at a pork-processing

facility who alleged that they are entitled to overtime

compensation and liquidated damages because Tyson

failed to compensate them fully for time spent

“donning” and “doffing” personal protective

equipment and walking to and from their work

stations. The district court certified the class based

on the existence of common questions about whether

these activities were compensable “work,” even

though there were differences in the amount of time

individual employees actually spent on these

activities and hundreds of employees worked no

overtime at all. The court then allowed plaintiffs to

ignore these individual differences and “prove”

hability and damages to the class with “common”

statistical evidence that erroneously presumed that

all class members are identical to a_ fictional

“average employee. The end result of this

“undifferentiated presentation{] of evidence” was a

“single-sum class-wide verdict from which each

purported class member, damaged or not, will receive

a pro-rata portion of the jury’s one-figure verdict.”

Pet. App. 24a (Beam, J. dissenting).

The Eighth Circuit’s affirmance of that unjust

result warrants review because it exacerbates two

circuit splits and conflicts with this Court’s decisions

in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2561 (2011), and Comcast v. Behrend, 133 S. Ct. 1426

(2013). Wal-Mart and Comcast should have put a stop

to class certification premised on the notion that

classwide lability and damages can be established

through a “Trial by Formula,” Wal-Mart, 131 S. Ct. at

2561, and damages models that ignore the basis of

the defendant's putative liability to each class

member, Comcast, 133 S. Ct. at 1433. That lax

approach to class certification effectively evades Rule

23's predominance’ requirement’ and alters

substantive rights in violation of the Rules Enabling

Act, 28 U.S.C. § 2702.

The Second, Fourth, Fifth, Seventh, and Ninth

Circuits have properly held that no class may be

certified where plaintiffs seek to obtain an aggregate

damages award for the class by extrapolating from a

fictional “average” class member. Nevertheless,

plaintiffs in other circuits continue to obtain class

certification on the premise that they can “prove” the

defendant’s liability and damages for the class by

extrapolating from an unrepresentative sample. In

addition to the Eighth Circuit decision below, the

Tenth Circuit recently affirmed class certification

where plaintiffs obtained an aggregate damages

award by extrapolating from a sample of class

members who had varying degrees of injuries (and in

many cases no injuries at all). This Court’s review is

thus warranted to clear up the confusion and put an

end to this violation of the Rules Enabling Act and

the Due Process Clause.

This Court’s review is also needed to resolve the

confusion among the lower courts on the question

whether a class may be certified when it includes

uninjured class members. The Second and Ninth

Circuits have held that all class members must have

standing to sue, and the D.C. Circuit recently held

that to obtain class certification, plaintiffs must be

able to show injury to all class members. The Third,

Seventh, and Tenth Circuits, in contrast, have held

that the requirements of Article III are satisfied as

long as a single class member was injured and has

standing to sue. Like the Eighth Circuit here, those

courts allow plaintiffs to use Rule 23(b)(3) to bring

damages claims on behalf of individuals who were not

injured and thus would have no viable individual

claim for damages.

Rule 23(b)(3) does not expand the jurisdiction of

federal courts or authorize an award of damages to

individuals who were not harmed simply because

their claims are aggregated with others who were

harmed. This Court should grant review to resolve

the confusion and put an end to this unlawful

practice.

STATEMENT OF THE CASE

1. Plaintiffs are current and former hourly

employees at Tysons Storm Lake, lowa, pork-

processing plant. Apdx.00684. These line employees

worked in two areas: on the Slaughter (or “Kill”) floor

and on the Processing (or “Fabrication” floor. Jd.

The Storm Lake facility employs approximately

1,300 emplovees, doing over 420 distinct jobs over two

shifts. Apdx.00684; Appellees’ Apdx.00149-172. Each

position requires the job-holder to perform certain

duties and to wear different sanitary items and

persona! protective equipment (“PPE”). Apdx.00684—

85; Apdx.00827-00851.

All employees wear a hard hat, hairnet, and ear

protection while on the production floor, Apdx.00685,

but the similarities end there. Processing employees

wear a frock, like a butcher's smock, while Slaughter

employees wear a company-issued white shirt-and-

pants uniform, id., or their own comparable clothing,

Tr. 263-64.

Additional items worn by employees depend on the

employee's job, Apdx.00685, and personal preference,

Tr. 156-57, 329, 498, 504, 511. Knife-wielding

employees in both areas don and doff, in varying

combination, plastic belly guards, mesh sleeves,

plexiglass arm guards, Polar gloves, Polar sleeves,

scabbards (or sheaths) for their knives, and steels

with which to maintain them. Apdx.00684.! Some

non-knife users, in contrast, choose to wear rubber

gloves, cotton gloves, or plastic aprons. Apdx.006835,

Tr. 156-57, 266-69, 444, 607, 651, 654. Further,

employees in both departments regularly elect to

wear other Tyson-provided items as a matter of

personal preference. See Tr. 157, 244, 260, 607, 651,

654. Thus, even employees working the same job may

be attired quite differently. Tr. 259-60, 266-68, 271.

747-48.

2.This case is brought by employees paid on

Tyson's “gang-time” system, which compensates them

from the time the first piece of product passes their

work stations until the last piece of product does so.

Tr. 178. Tyson also pays a fixed amount of extra time

each day called “K-Code time” (because it is given to

employees in departments using knives), Pet. App.

2a, that compensates employees for donning/doffing-

related activities.

From the beginning of the limitations periods until

February 2007, Tyson paid four minutes of K-Code

time per day to each employee who worked in a

department in which a knife was used.? Apdx.00686;

1 Approximately 70 percent of the class were knife-wielding

employees. Tr. 325.

2 The Slaughter and Processing floors were mainly comprised

of such departments; thus, most class members who worked

during this time period would have received four minutes per

Tr. 1358. From February 2007 to June 28, 2010,

Tyson paid only knife-wielding employees K-Code

time of four to eight minutes (depending on their

specific job for the shift). Apdx.00686.

In addition, some class members were compensated

for these donning/doffing and walking activities even

apart from any K-Code payments they received.

Specifically, employees who were assigned to come in

early to setup or stay late to teardown after gang

time were paid for the additional time, Tr. 547, and

were able to don/doff and clean their gear and walk

to/from the work station during that period of time,

Tr. 1457; Apdx.00108; Apdx.00136; Apdx.00139;

Apdx.00236.

3. Plaintiffs filed this action in 2007 for themselves

and other “similarly situated individuals,” alleging

that Tyson failed to compensate its employees for

overtime work, in violation of the FLSA, 29 U.S.C.

§ 207, and the Iowa Wage Payment Collection Law,

Iowa Code § 914.1, et seqg., which provides a state-law

basis to recover for FLSA claims. Apdx.00001-00002;

Apdx.00013-00014. Plaintiffs did not challenge the

gang-time system. They claimed, however, that the

K-Code times were too low, and they were entitled to

overtime compensation for unpaid time spent on

donning/doffing, washing, and walking when those

activities were undertaken by an employee who

worked more than 40 hours in a_ workweek.

Apdx.00009—00012.

Plaintiffs moved for the certification of a Rule

23(o)(3) class and an FLSA collective action.

Apdx.00017; Apdx.00040. Tyson objected, arguing

that liability and damages could be determined only

day they were on the job, regardless of whether they actually

worked a knife job. Apdx.00686; Tr. 390.

on an individual basis, Apdx.00065; Apdx.00461. The

district court agreed that “there [we]re some very big

factual differences among hourly employees at Tyson”

given that “the kinds of PPE worn, the types of tools

used, and the compensation system within the

departments are often different.” Pet. App. 87a.

Nevertheless, because the court viewed “the gang

time compensation system” as a “tie that binds” the

class together under a single, common question of

law, it certified a Rule 23 class that now contains

3,334 members, and conditionally certified an FLSA

collective action that now contains 444 members who

are also members of the Rule 23 class. Pet. App 87a,

110-11a; Apdx.00684.

4. After this Court decided Wal-Mart Stores, Inc. v.

Dukes, Tyson filed a motion to decertify the Rule 23

class. Dkt. 212. Tyson asserted that decertification

was necessary because plaintiffs had failed to show

that questions of liability or damages were “capable

of classwide resolution ... in one stroke.” Dkt. 212-1,

at 5 (quoting Wal-Mart, 131 S. Ct at 2551).

Plaintiffs opposed decertification, asserting, first,

that they could prove Tyson undercompensated the

class members with a time study by Dr. Kenneth

Mericle that purported to show the average amount

of time Tyson employees spent on donning/doffing-

related activities. Dkt. 223-1, at 22. Specifically,

Mericle identified eight donning/doffing-related

“activities” on the Processing side and six on the

Slaughter side. Apdx.00802—00803; Apdx.1084—85.

He then measured how much time a small sample of

employees took for each of these activities in both

areas. Tr. 1350. Finally, he computed the average

time for the donning/doffing-related activities he

identified, added an estimated walking time, and

calculated an “all-in” average of 18 minutes on the

Processing floor and 21.25 minutes on the Slaughter

floor. Apdx.0082-0083.

Second, plaintiffs said they would calculate

entitlement to overtime compensation and damages

with a report by Dr. Lies] Fox. Fox assumed that all

class members spent Mericle’s averaged amount of

time donning/doffing their equipment—i.e., that

everyone on the Processing floor spent 18 minutes

and everyone on the Slaughter floor spent 21.25

minutes on donning/doffing-related activities. Then,

using a computer program and Tyson's pay records,

she determined how much overtime compensation an

employee would be due, if any, if he or she were

credited for Mericle’s averaged donning/doffing time

each workday during the class period. Dkt. 226, Ex.

3, at 2. Finally, Fox totaled those numbers to arrive

at an aggregate damages award for each class.

Tyson objected that this purported proof would

result in a “trial by formula” expressly prohibited by

a unanimous Court in Wal-Mart. Dkt. 212-1, at 10—

12. Whether an employee was entitled to overtime

pay, Tyson argued, could be determined only on an

individualized basis because the employees donned/

doffed different equipment in a different order over

different amounts of time while working different

jobs. Dkt. 237, at 11. To determine Tyson’s liability

and damages based on the amount of time a

hypothetical “average” employee engaged in donning/

doffing-related activities vitiated the company’s nght

to demonstrate that individual class members were

not entitled to overtime. Jd. at 5.

The district court denied Tyson’s motion, finding

that whether “donning and doffing and/or sanitizing

of the PPE ... constitutes ‘work” was a common

question susceptible to common proof. Pet. App. 37a.

The court observed, without elaboration, that there

were “numerous factual similarities among the

employees paid on a ‘gang time’ basis.” Jd.

5. At trial, however, the few class members who

testified admitted that Tyson required employees to

wear different PPE, depending on their job, and that

employees chose to wear different items, depending

on their personal preferences. Tr. 611 (Lovan); Tr.

634 (Balderas); Tr. 705-06 (Brown). Additionally,

these employees testified that they don and doff these

pieces of equipment in a different order, in different

places, and that each piece requires a distinct amount

of time. Tr. 604, 628.

Nevertheless, plaintiffs purported to prove class

members’ entitlement to overtime compensation with

Dr. Mericle’s testimony regarding his averaged time

study. Mericle conceded that his time measurements

necessarily included employees who performed

different jobs and donned and doffed different

equipment. Tr. 897, 899, 1049, 1141. This resulted in

“a lot of variation.” Tr. 1158. For instance, when

Mericle measured the pre-shift donning of equipment

by Processing floor employees in the locker room, his

observed times ranged from approximately half a

minute to ten minutes. Pet. App. 137a. On the

Slaughter side, he similarly observed employees take

from 0.2 to 5.7 minutes to doff and clean equipment

after their shift. Jd. at 138a.

Mericle also conceded that this wide dispanty—

which repeated itself with each “activity” measured—

was because “some of [the workers] put on more

equipment than others.” Tr. 1144. On the Processing

floor, for example, Tyson required the employee in

one position to wear one belly guard, one scabbard,

one steel, one mesh glove, two Polar sleeves, and one

Plexiglass arm guard. Tr. 504—05. In contrast, the

employee in another position (also on the same

Processing floor) had to wear only one mesh apron,

one scabbard, one steel sharpener, one mesh glove,

one Polar sleeve, and one mesh sleeve, Tr. 507, while

a third employee in a different position on that floor

needed to don none of these pieces, id.

Mericle’s recorded measurements also showed that

Tyson's employees did not don their equipment in the

same place or in the same order. Tr. 897, 907. In fact,

Mericle measured employees continuing to don

equipment once they were on the disassembly line

(and, thus, already on paid gang-time), yet he

included them in his computations. Tr. 1003. Nor did

Mericle account for the fact that employees were

compensated for any donning/doffing-related

activities when they had setup or teardown

responsibilities. Tr. 1457.

By his own admission, Mericle did not pre-select

workers from a variety of jobs, Tr. 110508, or ensure

that his sample had the same proportion of knife and

non-knife wielding employees as Tyson’s workforce,

Tr. 1050. Instead, he and his team observed

whichever employees were performing a certain

activity at a given time, allowing the employees to

self-select into his study. Tr. 912. As a result, he

agreed that he did not study a “random sample.” Tr.

913.

'Dr. Fox testified that classwide damages were

$6,686,082.36 for the Rule 23 class and $1,611,702.44

Yor the FLSA collective if one assumed that every

tlass member worked Mericle’s “average” times. Tr.

1277-78; Apdx.00869. She conceded, however, that

the figures would be different if one assumed that

employees spent different amounts of time on

donning, doffing, sanitizing, and walking. Tr. 1307.

Fox also acknowledged that, even if one assumed

that every employee worked the average time from

Mericle’s study, the class included over 212 members

who suffered no injury at all; even adding the

estimated time did not result in those employees

working over 40 hours in a single week. She further

explained that, as Mericle’s average donning/doffing

times are reduced, the number of uninjured workers

would increase as more employees’ work hours fell

below 40 for a given week. Tr. 1351. This drop-off

happens in a non-linear fashion, id., so her

calculations were “all or nothing,” meaning that “if

the jury concludes the activities take [a different

number of minutes than Mericle calculated], you

have no idea what kind of back wage calculations

would result” without re-running the program, Tr.

1352.

At the close of plaintiffs’ case, Tyson asked the

court to decertify the class or grant judgment as a

matter of law because plaintiffs had not proved al!

class members were injured. Tr. 1398-1401: Dkt. 270.

The district court denied the motion, trial continued.

and the case was submitted to the jury.

6. The jury found that the class members were

“entitled to additional compensation for ... the

donning and doffing activities at issue in this case,”

and awarded damages in the amount. of

$2,892,378.70, substantially less than Fox had

calculated for the Rule 23 class. Tr. 1819.

After the verdict, Tyson requested judgment as a

matter of law and renewed its motion for

decertification of the class. The undisputed trial

testimony showed that the class contained employees

from numerous departments, “all of which were

comprised of many different positions, all requiring

different combinations of required and optional safety

or sanitary items.” Dkt. 304-1, at 9. These individual

differences and Mericle’s failure to account for them

in his study, Tyson contended, meant that Mericle’s

averaged times did not establish whether any given

employee was actually undercompensated. Jd. at 10.

Moreover, Fox’s testimony established that there are

at least 212 class members who had zero

uncompensated overtime, and the actual number of

uninjured employees was much higher. Because the

jury awarded a damages figure less than Fox

calculated, it necessarily found that Mericle’s average

times were overstated and, as Fox conceded at trial,

the number of uninjured class members rises if one

assumes that the amount of time spent on

donning/doffing, cleaning, and walking activities is

less than Mericle calculated. Jd. at 13 (citing Tr.

1302). Nonetheless, these uninjured plaintiffs were

included in the aggregate damages award, now

making it impossible to award damages accurately

after the jury rejected Fox's “all or nothing” damages

total. Jd. at 13-14.

The district court denied Tyson’s motion, saying

that “there [was] not a complete absence of probative

facts to support the [jury's] conclusion, nor did a

miscarriage of justice occur.” Pet. App. at 30a.

7. On appeal, a divided panel of the Eighth Circuit

affirmed. The majority recognized that “individual

plaintiffs varied in their donning and doffing

routines,” Pet. App. 8a, and that plaintiffs “rel[ied] on

inference from average donning, doffing, and walking

times” to calculate the amount of uncompensated

“work” time, id. at 1la. The majority reasoned,

however, that because “Tyson had a specific company

policy” and the “class members worked at the same

plant and used similar equipment,” “this inference

[was] allowable under Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 687 ... (1946).” Id. at 8a. In

the majority's view, plaintiffs’ application of Mericle’s

averaged donning/doffing times to _ individual

“employee time records to establish individual

damages” meant that “[t]hey [had] prove[d] liability

for the class as a whole.” Jd. at 10a.

The majority also rejected Tyson’s argument that

decertification was necessary “because evidence at

trial showed that some class members did not work

overtime and would receive no FLSA damages even if

Tyson under-compensated their donning, doffing, and

walking.” Pet. App. 8a. The majority said “Tyson

exaggerate[d] the [legal] authority for its contention,”

but provided no further analysis or explanation. /d.

at 9a.

Judge Beam dissented. He emphasized the myriad

differences between the class members, “differences

in [their] donning and doffing times, K-Code

payments, abbreviated gang time shifts, absenteeism,

sickness, vacation [and] other relevant factors.” Jd. at

23a (Beam, J., dissenting). “While ... all class

members were subject to a common policy—gang-

time payment,” there could be “no ‘common answer'{]’

arising from the evidence concerning the individual

overtime pay questions at issue in this case” because

Tyson, by issuing K-Code time, had already paid for

donning/doffing in many instances and because the

amount of time individual employees spent donning

and doffing varied. Id. Thus, the common evidence

could not “resolve[{] [the case] in ‘one stroke,” id.

(quoting Wal-Mart, 131 S. Ct. at 2551), and the class

“should have been decertified,” id.

In addition, Judge Beam found that class

certification was inappropriate because it was

undisputed that the class included hundreds of

uninjured employees. Pet. App. 22a. As he noted, “the

jury in returning only a single gross amount of

damages verdict, as instructed, discounted plaintiffs’

evidence by more than half, likely indicating that

more than half of the putative class suffered either no

damages or only a de minimis injury.” Jd.

Consequently, by certifying a class with hundreds of

uninjured employees the district court would force

Tyson to pay employees whom it had fully

compensated, a result that would be unfair to Tyson

and any class members who actually were injured. Jd.

8. Tyson's petition for rehearing or rehearing en

banc was denied by a vote of 6 to 5. In an opinion

respecting the denial of rehearing, Judge Benton

stated his view that “Mt. Clemens permits the use of

a reasonable inference to determine liability and

damages in this context” and that the plaintiffs

implicitly satisfied this standard by proffering expert

testimony of classwide average donning/doffing times.

Pet. App. 127a—128a & n.5 (Benton, J., respecting the

denial of rehr’g en banc). He also concluded that

“Tyson has no interest in how the fund is allocated

among class members,” so it is not relevant to the

appeal that hundreds of uninjured employees were

included in the class. Jd. at 131a.

Again, Judge Beam dissented, decrying the court’s

affirmance of “a professionally assembled class action

lurching out of control.” Jd. at 115a (Beam, J.,

dissenting from rehr’g denial). First, Judge Beam

faulted the majority for misreading Mt. Clemens,

which allows the use of a “just and reasonable

inference” in determining damages, but only after

plaintiffs carry the “individual burden of [proving] by

a preponderance of the evidence” that “each putative

class member” “performed work for which he was not

properly compensated.” Jd. at 120a (internal

quotation marks omitted). Applying that inference at

the liability stage by using an _é average

donning/doffing time, Judge Beam argued, relieved

plaintiffs of their burden and resulted in awarding

damages to hundreds of uninjured plaintiffs. Jd. at

120a—121a.

Second, Judge Beam emphasized that the inclusion

of these uninjured employees in the class—when

paired with the jury’s reduced aggregate damages

award—underscored the inappropriateness of

certifying the class in the first instance. By awarding

a reduced damages award, the jury necessarily found

Mericle’s time estimations inflated. As a result, “well

more than one-half the certified class of 3,344 persons

have no damages whatsoever and the balance have

markedly lower damages that are now virtually

impossible to calculate.” Pet. App. 125a. By upholding

the district court’s class certification, the entire

class—including the hundreds of members with “no

provable damages”—were made “joint beneficiaries”

of the “lump sum district court judgment” but

without a means to limit distributions for only proven

damages. Id.

REASONS FOR GRANTING THE PETITION

I. WHETHER CLASS OR COLLECTIVE

ACTIONS MAY BE CERTIFIED BASED ON

STATISTICS THAT ERRONEOUSLY PRE-

SUME ALL CLASS MEMBERS ARE

IDENTICAL TO AN AVERAGE OBSERVED

IN A SAMPLE IS AN IMPORTANT AND

RECURRING QUESTION THAT HAS

DIVIDED THE CIRCUIT COURTS.

This case presents this Court with the opportunity

to address the propriety of certifying a class under

Rule 23(b)(3), or an FLSA collective action, where

plaintiffs’ common “proof” of liability and damages is

statistical evidence that erroneously presumes that

all class members are identical to the average

observed in a sample. Notwithstanding this Court’s

guidance in Wal-Mart and Comcast, this recurring

issue has sharply divided the lower courts.

The undisputed evidence in this case showed that

there was substantial variance in the amount of time

individual employees spent in donning/doffing-related

activities each day. The three production workers

who testified at trial and gave time estimates,

explained that each wore different items and spent

different amounts of time on donning/doffing-related

activities. See Tr. 708-09 (more than 2 minutes for

Brown to don gear pre-shift); Tr. 598 (6-7 minutes for

Lovan); Tr. 641 (10-12 minutes for Balderas); see

also Tr. 1157 (Mericle conceding that in his time

study, there were “different [times] for every single

person [his] team measured’).

Calling each of the remaining 3,341 members of the

class to testify would have been impracticable. It also

would have demonstrated that the district court was

clearly wrong in thinking Tyson’s liability for

damages was “capable of classwide resolution” and

could be resolved “in one stroke.” Wal-Mart, 131 S.

Ct. at 2551. So plaintiffs presented evidence that

purportedly would permit the jury to determine

liability and damages for all class members: Mericle’s

time study. In upholding class certification, the

Eighth Circuit panel majority allowed plaintiffs to

“prove” liability and damages based on Mericle’s

averaged times, and held that the variations among

individual plaintiffs did not “prevent [a] ‘one stroke’

determination” of liability and damages. Pet. App. 8a.

That erroneous decision is in direct conflict with the

Seventh Circuit’s decision in Espenscheid v. DirectSat

USA, LLC, 705 F.3d 770 (7th Cir. 2013). Plaintiffs in

Espenscheid were satellite dish technicians who

claimed that they were required “to do work for which

they were not compensated at all, and also to work

more than 40 hours a week without being paid

overtime for the additional hours” in violation of the

FLSA and parallel provisions of state law. Id. at 773.

The Seventh Circuit assumed, for purposes of appeal,

that “plaintiffs could prove that [the employer's]

policies violated the [law] in these ways.” Jd. But

even so, the court held that no class action could be

certified because the amount of damages actually

owed, if any, depended on the job duties and personal

circumstances of individual class members. 7d. at

773, 776.

In so holding, the Seventh Circuit expressly

rejected plaintiffs’ proposal “to get around the

problem of variance by presenting testimony at trial

from 42 ‘representative members of the class.” Jd. at

774. In that case (as here, see supra p. 10), there was

“no suggestion that sampling methods used in

statistical analysis were employed to create a random

sample of class members.” 705 F.3d at 774. But even

if by “pure happenstance” the number of unpaid

hours worked each week by the emplovees in the

sample “was equal to the average number of hours of

the entire class,” the sampling “would not enable the

damages of any members of the class other than the

42 to be calculated.” Jd. “To extrapolate from the

experience of the 42 to that of the 2341” other class

members, the court held,

would require that all have done roughly the

same amount of work.... No one thinks there was

such uniformity. And if for example the average

number of overtime hours per class member per

week was 5, then awarding 5 x 1.5 x hourly wage

to a class member who had only 1 hour of

overtime would confer a windfall on him, while

awarding the same amount of damages to a class

member who had 10 hours of overtime would

(assuming the same hourly wage) under-

compensate him by half.

Id.

That reasoning is equally applicable here.

Plaintiffs’ time study confirmed that there was wide

variation in the amount of time employees spent

donning and doffing different combinations of PPE.

For example, employees spent between 0.583 minutes

and 13.283 minutes donning equipment in the locker

room pre-shift, and between 1.783 minutes and 9.267

minutes doffing and storing equipment post-shift. See

Pet. App. 137a—138a. But even this understates the

individual variation among class members. The

undisputed record evidence shows that some

employees had time to don protective gear at their

station after the production line had commenced

operation—and thus were paid for that activity under

Tyson’s gang-time system. See supra p. 16. Some

employees were paid to come in before or after gang

time to set up or clean up the production line, and

when they did so, they donned and doffed their PPE

during the set up or clean up time for which they

were paid. See supra pp. 6, 10. Thus, had this case

been brought in the Seventh Circuit, class

certification would have been denied because

plaintiffs could prove entitlement to overtime and

damages only by using a time study based on

impermissible averaging.

The Eighth Circuit did not explain how its decision

was consistent with Espenscheid. Although it

acknowledged that the Seventh Circuit held that

class certification was “improper” when there were

variations in the class and “use of an average

conferred a ‘windfall’ on some class members,” the

panel majority dismissed the decision with a simple

“cf.” citation with no explanation. Pet. App. Qa.

Instead, it said that to apply the time study to

“individual! overtime claims did require inference, but

this inference is allowable under Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 687 ... (1946).”

Pet. App. 8a. That is simply incorrect.

Mt. Clemens requires a plaintiff seeking unpaid

overtime under the FLSA to prove “that he 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.” 328 U.S. at 687 (emphasis

added). As the Seventh Circuit recognized, nothing in

that decision allows an employee who was fully

compensated by the K-Code time he received to

recover damages by showing that K-Code time was

not sufficient to compensate another employee, much

less a fictional composite employee. See Espenscheid,

705 F.3d at 775 (“what can’t support an inference

about the work time of thousands of workers is

evidence of the experience of a small, unrepre-

sentative sample of them”).

Class certification also would have been denied had

this case been brought in the Fourth Circuit, which,

like the Seventh Circuit, does not permit class

certification where aggregate damages will be based

“on abstract analysis of ‘averages.” Broussard v.

Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 343

(4th Cir. 1998). Broussard was brought by

franchisees who sought lost profits allegedly caused

by the franchisor’s misuse of advertising funds. To

prove damages, plaintiffs called an expert who

computed “an average profit margin based on a

sample of franchisees’ financial data” and “an

estimate of ‘on average how many additional cars

would have come in per week in the typical Meineke

dealer’s shop had the additional advertising dollars

been spent.” Jd. This focus on a “fictional” “typical

franchisee operation,” the court held, was improper

where the actual “profits lost by franchisees” differed

“according to their individual business

circumstances.” /d. That this invalid “shortcut was

necessary in order for this suit to proceed as a class

action should have been a caution signal to the

district court that class-wide proof of damages was

impermissible.” Jd.

The Second Circuit in McLaughlin v. American

Tobacco Co., 522 F.3d 215 (2d Cir. 2008), similarly

held that a class cannot be certified based “on an

estimate of the average loss for each plaintiff.” Id. at

231. “[S]uch an aggregate determination,” the Second

Circuit explained, would likely result in a “damages

figure that does not accurately reflect the number of

plaintiffs actually injured” or “the amount of

economic harm actually caused by defendants.” Id. It

also poses the “danger of overcompensation” in that

some members of the class may benefit from the

recovery even though they were not injured. Jd. at

232. “This kind of disconnect offends the Rules

Enabling Act, which provides that the federal rules of

procedure, such as Rule 23, cannot be used to

‘abridge, enlarge, or modify any substantive right.”

Id. at 231 (quoting 28 U.S.C. § 2072(b)).

The Fifth Circuit, too, has recognized that class

certification based on such procedures results in an

impermissible “alteration of substantive” rights. See

In re Fibreboard, 893 F.2d 706, 712 (5th Cir. 1990).

Plaintiffs in Fibreboard were individuals suffering

diseases allegedly caused by exposure to asbestos.

The district court certified a class based on a trial

plan under which liability and damages would be

determined for approximately 3,000 class members

by “index[ing]” them to 41 test cases. Jd. at 711. The

Fifth Circuit reversed, holding the class “cannot be

certified” on this basis because it “create[d] the

requisite commonality for trial” by “submergefing]”

the “discrete components of the class members’ claims

and the asbestos manufacturers’ defenses.” Jd. at 712;

see also Cimino v. Raymark Indus., Inc., 151 F.3d

297, 311-29 (5th Cir. 1998) (finding plan to establish

classwide liability on damages based on extrapolation

violates defendants’ Seventh Amendment right to a

jury trial).

The Ninth Circuit in Jimenez v. Allstate Insurance

Co., 765 F.3d 1161 (9th Cir. 2014), likewise realized

that it would alter rights and violate due process to

allow classwide damages to be determined through

,sampling” when there is substantial variance among

individual class members. Jd. at 1168. Jimenez was a

wage-and-hour class action brought by claims

adjusters who alleged that Allstate had an unofficial

policy requiring them to work unpaid off-the-clock

overtime. The district court certified a class to decide

whether such a policy existed, but bifurcated the

proceedings and “rejected the plaintiffs’ motion to use

representative testimony and sampling at the

damages phase.” Jd. “This split,” the Ninth Circuit

held, preserved “Allstate’s due process right to

present individualized defenses to damages claims.”

Id.3

3 Allstate has filed a petition for writ of certiorari seeking

review of this decision on the grounds that Rule 23 and the Due

Process Clause do not allow plaintiffs to establish classwide

liability through statistical “sampling” just as they do not allow

plaintiffs to use sampling to prove classwide damages. See

Allstate Ins. Co. v. Jimenez, 83 U.S.L.W. 3638 (Jan. 27, 2015)

In contrast, neither the district court nor the

Eighth Circuit took any steps to preserve Tyson’s

right to present defenses to individual claims. They

refused to decertify the class notwithstanding the

existence of undisputed differences in donning and

doffing times. And they allowed plaintiffs to “prove”

damages with a formula that applied average

donning/doffing times to all class members.

That the Eighth Circuit would allow such a

procedure is particularly surprising because it is so at

odds with this Court’s recent decisions in Wal-Mart

and Comcast. Comcast made clear that “courts must

conduct a rigorous analysis” of expert models

“purporting to serve as evidence of damages in [a]

class action,” and they must deny class certification

where the models employ flawed methodologies or

produce “arbitrary measurements.” 133 S. Ct. at 1433

(quotations omitted). To ignore defects in the model

and allow class certification as long as there is “any”

damages model, “no matter how arbitrary,” would

“reduce Rule 23(b)(3)’s predominance requirement to

a nullity.” Jd. (emphasis in original).

And Wal-Mart makes clear that a damages model

based on averaging is a flawed approach that cannot

be used to avoid individualized inquiries and permit

liability and damages to be determined on a

classwide basis. In Wal-Mart, this Court unanimously

reversed class certification where liability and

damages would be determined for a sample, and

“(tlhe percentage of claims determined to be valid

would then be applied to the entire remaining class,

(No. 14-910). Here, the Eighth Circuit upheld the district court’s

class certification with regard to both liability and damages.

Thus, if this Court were to grant certiorari and reverse in

Jimenez, that would a fortiori require vacatur of the Eighth

Circuit’s decision here.

and the number of (presumptively) valid claims thus

derived would be multiplied by the average backpay

award in the same set to arrive at the entire class

recovery—without further individualized proceed-

ings.” 131 S. Ct. at 2561. Such a “Trial by Formula,”

this Court held, would impermissibly abridge the

defendant’s nghts under the Due Process Clause and

the Rules Enabling Act. Jd.

Here, as in Wal-Mart, allowing classwide liability

and damages to be established on the basis of

statistical sampling precluded Tyson from raising its

“defenses to individual claims.” Jd.; see also Lindsey

v. Normet, 405 U.S. 56, 66 (1972) (“Due process

requires that there be an opportunity to present

every available defense.”); Carrera v. Bayer Corp..,

727 F.3d 300, 307 (3d Cir. 2013) (“A defendant in a

class action has a due process right to raise

individual challenges and defenses to claims, and a

class action cannot be certified in a way that

eviscerates this mght or masks individual issues.”). In

this class trial, Tyson lost the mght to show the jury

that individual class members had no unpaid

overtime. In an individual trial, Tyson could have

cross-exary;ned the employee and sought to prove

that the employee spent (or reasonably could have

spent) less time engaged in donning/doffing-related

activities than was claimed. Or Tyson could have

shown that the employee was compensated for such

activities by the K-Code payments or because he

performed them at times in which he was

compensated (i.e., when that employee’s “gang time”

had started or when Tyson paid the employee to

setup or clean up the production area). In a class

trial, however, Tyson was reduced to attacking the

methodology used by plaintiffs’ experts to determine

the “average” donning/doffing time.

The Eighth Circuit tried to distinguish Wal-Mart on

the grounds that “[hjere, plaintiffs do not prove

liability only for a sample set of class members. They

prove liability for the class as a whole, using

employee time records to establish individual

damages.” Pet. App. 10a; see also id. at 13a. That

plaintiffs’ expert added the average donning/doffing

times to the class members’ actual time records does

not change the fact that classwide liability was based

purely on extrapolation and an assumption—.e., that

each class member spent the same “average” amount

of time donning, doffing and walking—rather than

individualized proof as to how, if at all, each was

injured.

Unfortunately, the Eighth Circuit is not alone in its

refusal to follow Wal-Mart. The Tenth Circuit in Jn re

Urethane Antitrust Litigation, 768 F.3d 1245 (10th

Cir. 2014), affirmed class certification in an antitrust

case where plaintiffs “proved” damages with an

expert who applied average overcharges to disparate

transactions, including transactions for which there

were no overcharges. Jd. at 1257. The Tenth Circuit

thought that was an appropriate way to

“approximate” damages in a large class action, saying

“Wal-Mart does not prohibit certification based on the

use of extrapolation to calculate damages.”4 Jd.

This Court should grant review to resolve the

conflicts among the courts of appeals and put an end

to the practice of using averaging and extrapolation

from a sample to mask individual differences so that

*The Dow Chemical Company filed a petition for writ of

certiorari on March 9, 2014, seeking review of this issue. Dow

Chemical Co. v. Seegott Holdings, Inc., No. 14-1091. Thus, if this

Court were to grant certiorari and reverse in Dow, that would

require vacatur of the Eighth Circuit's decision here.

vast numbers of disparate individual liability and

damages claims can be aggregated together in a large

class action. Rule 23 is not a license for plaintiffs’

counsel to engage in this type of “claim fusion” in

“which claims in the aggregate merge to assume

characteristics that no individual claim possesses.”

Allan Erbsen, From “Predominance” to “Resolv-

ability”: A New Approach to Regulating Class Actions,

58 Vand. L. Rev. 995, 1003 (2005). Nor does it permit

district courts to engage in “ad hoc lawmaking”™ or

“the manipulation of substantive rules to assist in

resolving or preventing practical difficulties that

arise in the course of adjudicating dissimilar

questions of fact and law.” Jd. This Court’s review is

therefore needed to ensure that Rule 23 is

“interpreted in keeping with” the Due Process Clause

and the Rules Enabling Act, “which instructs that

rules of procedure ‘shall not abridge, enlarge or

modify any substantive right,’ 28 U.S.C. § 2072(b).”

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613

(1997).

Il. THE CIRCUIT COURTS ARE DIVIDED ON

v WHETHER A CLASS MAY BE CERTIFIED

WHERE THE CLASS INCLUDES MEM-

BERS WHO WERE NOT INJURED.

Plaintiffs who seek to invoke the jurisdiction of the

federal courts have the burden of establishing that

they have standing to sue. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). To meet that

burden, plaintiffs must show, among other things,

that they suffered an “injury in fact’"—an invasion of

a legally protected interest” that is “concrete and

particularized” and “actual or imminent.” Jd. at 560.

“This requirement ensures that the Federal Judiciary

confines itself to its constitutionally limited role of

adjudicating actual and concrete disputes, the

resolutions of which have direct consequences on the

parties involved.” Genesis Healthcare Corp. v.

Symezyk, 133 S. Ct. 1523, 1528 (2013).

Although this Court has held that Rule 23 “must

be interpreted in keeping with Article III

constraints” on standing, Ortiz v. Fibreboard Corp.,

527 U.S. 815, 831 (1999) (quoting Amchem, 521 U.S.

at 613), the lower courts are divided about what that

entails. Specifically, the circuit courts disagree about

whether plaintiffs must show that all class members

were injured by the defendants’ allegedly unlawful

actions, or whether a class may be certified even

though it includes members who were not injured

and thus have no claim for damages.

The lead decision allowing certification of classes

that include members with no plausible claim to

damages is Kohen v. Pacific Investment Management

Co., 571 F.3d 672 (7th Cir. 2009). Although the

Seventh Circuit recognized that “injury is a

prerequisite to standing,” it held that “as long as one

member of a certified class has a plausible claim to

have suffered damages, the requirement of standing

is satisfied.” Id. at 676.

A divided panel of the First Circuit recently agreed

that the “possibility or indeed inevitability” that

some class members were not injured “does not

preclude class certification.” Jn re Nexium Antitrust

Litig., 777 F.3d 9, 25 (1st Cir. 2015) (quoting Kohen,

571 F.3d at 677). The court thus affirmed class

certification in an antitrust case in which 2.4% of the

class likely had no injury, id. at 32, which, as the

dissent noted, would be “at least 24,000 people,” and

“nobody knows who the 24,000 are,” id. at 32, n.29, 25

(Kayatta, J., dissenting).®

The Tenth Circuit also has cited Kohen in holding

that “Rule 23’s certification requirements neither

require all class members to suffer harm or threat of

immediate harm nor Named Plaintiffs to prove class

members have suffered such harm.” DG ex rel.

Stricklin v. Devaughn, 594 F.3d 1188, 1198 (10th Cir.

2010). And the Tenth Circuit recently affirmed class

certification in an antitrust case in which it expressly

acknowledged that some class members “avoid/ed]

injury altogether.” Jn re Urethane, 768 F.3d at 1254.

The Third Circuit reached a similar result in Krell

v. Prudential Insurance Company of America, 148

F.3d 283 (3d Cir. 1998), a case involving allegedly

fraudulent sales practices by an insurance company.

The district court certified the class despite

defendants objections that it included “both injured

and uninjured policyholders.” Jd. at 306. The Third

Circuit affirmed, holding that if “the named plaintiffs

satisfy Article III,” the “absentee class members are

not required to make a similar showing.” Jd. at 307.

5 To be sure, Kohen and its progeny have stated that a district

court may decline to certify a class that “contains a great many

persons who have suffered no injury at the hands of the

defendant.” 571 F.3d at 677. But it reached that conclusion not

because of the limitations imposed by Article IT] (or due process

or any substantive law), or because the presence of uninjured

class members is a warning sign that individualized inquiry is

required, but “because of the in terrorem character of a class

action,” which, “by aggregating a large number of claims,” can

“impose a huge contingent liability upon a defendant.” Jd. at

678. Nexium demonstrates this ad hoc and standardless test

imposes no meaningful constraint on class certification of

classes with thousands of uninjured members, even when the

district court has no plan for ensuring that they do not

contribute to the defendant’s liability or share in the judgment.

In contrast, the Second Circuit held in Denney v.

Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006), that

“no class may be certified that contains members

lacking Article III standing.” Rather, the class must

“be defined in such a way that anyone within it would

have standing.” Jd. at 264. The Ninth Circuit has

agreed with this test. See Mazza v. Am. Honda Motor

Co., 666 F.3d 581, 594 (9th Cir. 2012) (citing Denney,

443 F.3d at 264).®

More recently, in Jn re Rail Freight Fuel Surcharge

Antitrust Litigation, 725 F.3d 244 (D.C. Cir. 2013),

the D.C. Circuit vacated the district court's

certification of a class where plaintiffs could not

“prove, through common evidence, that all class

members were in fact injured.” Jd. at 252. The district

court in Rail Freight had not been troubled by the

presence of uninjured class members, because it

looked to cases like Kohen and held that “[c]lass

certification is not precluded simply because a class

may include persons who have not been injured by

the defendant’s conduct.” Jd. at 255 (alterations in

original) (quotations omitted). The D.C. Circuit

expressly disapproved of that approach, noting that

Kohen was decided before this Court’s decision in

Comcast when “the case law was far more

accommodating to class certification under Rule

23(b)(3).” Id. Instead, the court held that if plaintiffs

cannot show with “common evidence” that “all class

members suffered some injury,” then class

6 As the Fifth Circuit noted in Jn re Deepwater Horizon, 739

F.3d 790 (5th Cir.), cert. denied sub nom. 135 S. Ct. 754 (2014),

the Seventh, Eighth, and Ninth Circuits have not been entirely

consistent on the question, with some decisions adopting the

Kohen test and others citing Denney. Id. at 800-01 & nn.27-30.

Considering all the decisions, there is a “roughly even split of

circuit authority.” Jd. at 801.

certification must be denied because “individual

trials” would be necessary “to establish whether a

particular [class member] suffered harm.” Jd. at 252.

Thus, if Tyson’s plant were located in the Second or

D.C. Circuits, the district court could not have

certified the class because plaintiffs could not prove,

with common evidence, that all class members were

injured. Quite the contrary, plaintiffs’ damages

expert admitted that the class contained at least 212

employees who were not injured because they did not

work any unpaid overtime even under Mericle’s

assumed averages. See supra p. 11. The actual

number of uninjured class members is even larger. As

Judge Beam explained in dissent, the fact that the

jury awarded plaintiffs less than half the damages

they requested indicates that the jury disagreed with

plaintiffs’ “over-generous time study conclusions.”

Pet. App. 125a. And plaintiffs’ expert admitted that if

“employee(s}] worked less than [the time study]

numbers ... it is possible that Tyson’s K-code

payments already have fully paid them for that

time.” Jd. at 123a (omission in original). Accordingly,

“under the evidence [plaintiffs] themselves adduced,

well more than one-half of the certified class of 3,344

persons have no damages.” Jd. at 125a. Yet all class

members are “included as beneficiaries of the single

damages verdict” and, “damaged or not, will receive a

pro-rata portion of the jury’s one-figure verdict.” Jd.

at 22a—24a.

To affirm that result, as the Eighth Circuit did, is

to allow plaintiffs to use the procedural device of Rule

23(b)(3) to alter substantive law in violation of the

Rules Enabling Act. The panel majority had no

persuasive argument to the contrary. Its only

justification for the inclusion of uninjured class

members was to say that Tyson “invited” the error by

requesting that the jury be instructed that it could

not award damages for “{a]Jny employee who has

already received full compensation for all activities

you find to be compensable.” Pet. App. 10a

(quotations omitted). That reasoning is flawed and

cannot insulate the district court’s error from

appellate review. As Judge Beam explained, Tyson

did not invite the erroneous inclusion of uninjured

class members; it “vigorously” opposed class

certification “at every turn in this litigation.” Jd. at

20a. But when its objections to class certification

were rejected by the district court, Tyson reasonably

and properly requested “that the plaintiffs be held to

their evidentiary burdens of proof.” Jd.

This Court should therefore grant review to resolve

the circuit split and ensure that Rule 23(b)(3), which

is a limited procedural device for aggregating liability

and damages claims, is not used improperly to

expand federal court jurisdiction and compensate

individuals who suffered no injury, lack Article II

standing, and are entitled to zero damages.

Ill. THE QUESTIONS PRESENTED ARE

IMPORTANT AND RECUR IN BOTH CLASS

ACTIONS UNDER RULE 23(B)(3) AND

COLLECTIVE ACTIONS UNDER THE

FLSA.

As is evident from the circuit court cases discussed

above, the question whether a class can be certified

where liability and damages will be determined with

statistical sampling that erroneously presumes that

all class members are identical to the average of a

sample, and the question whether a class can be

certified that includes members with no injury, are

questions that arise in a variety of class actions.

Indeed, this Court’s own docket confirms that these

questions commonly arise in wage-and-hour collective

actions under the FLSA and in Rule 23(b)(3) class

actions brought under parallel provisions of state law

like the lowa Wage Payment Collection Law at issue

here. See supra note 3 (discussing petition for writ of

certiorari in Allstate Ins. Co. v. Jimenez, No. 14-910).

They also arise in consumer fraud cases and antitrust

actions and a variety of other actions for damages in

federal courts. See supra note 4 (discussing petition

for writ of certiorari in Dow Chemical Company v.

Seegott Holdings, Inc., No. 14-1091).

The division among the lower courts on these

questions warrants this Court’s review. Although the

questions frequently arise when plaintiffs seek class

certification in the district court, they typically

escape appellate review. Interlocutory review of a

certification decision is rare. See 2 Joseph M.

McLaughlin, McLaughlin on Class Actions: Law and

Practice § 7.2 (10th ed. 2013). And “[cJertification of a

large class may so increase the defendant’s potential

damages liability and litigation costs that he may

find it economically prudent to settle and to abandon

a meritorious defense.” Coopers & Lybrand v.

Livesay, 437 U.S. 463, 476 (1978).

In addition, “professionally assembled class

action[s],” Pet. App. 115a (Beam, J., dissenting), are

now a fact of life that impose significant costs on

companies doing business in the United States. While

Rule 23 was intended to “‘impose[] stringent

requirements for certification that in practice exclude

most claims,” Am. Express Co. v. Italian Color Ri«t.,

133 S. Ct. 2304, 2310 (2013), certification continues

to be the norm. A recent study of major companies

found that 54% of them “are currently engaged in

class action litigation.” The 2015 Carlton Fields

Jorden Burt Class Action Survey 6 (2015), available

at http://classactionsurvey.com/pdf/2015-class-action-

survey.pdf. “[C]onsumer fraud and labor and

employment remain the most prevalent class action

matters,” accounting for “more than 50 percent of all

class actions.” Jd. at 3. Indeed, it is now estimated

that “90% of all federal and state court employment

law class actions filed in the United States are wage

and hour class or collective actions.” Laurent Badoux,

ADP, Trends in Wage and Hour Litigation Over

Unpaid Work Time and Precautions Employers

Should Take 1 (2012) available at http://www.lb7.

uscourts.gov/documents/12-19431.pdf.

Although the drafters of Rule 23 realized that a

damages class action could “be convenient and

desirable depending upon the particular facts,” they

emphasized that it should only be used when “a class

action would achieve economies of time, effort, and

expense, and promote uniformity of decision as to

persons similarly situated, without sacrificing

procedural fairness or bringing about other

undesirable results.” Fed. R. Civ. P. 23, advisory

committee’s 1966 note. When it is necessary for

plaintiffs to use sampling techniques to create a

fictional plaintiff with “average” characteristics that

are applied by extrapolation to class members with

strikingly different individual circumstances in order

to “prove” defendants’ liability or damages to all class

members with common evidence, procedural fairness

and due process are sacrificed. See supra pp. 23-24.

When a class includes uninjured members who would

have no standing to litigate or obtain damages on

their own, procedural] fairness and due process are

the victims. See supra pp. 29-30. This Court should

grant review to put an end to these unlawful

practices and return Rule 23 to the narrow exception

to individual litigation as it was adopted in 1966.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

MICHAEL J. MUELLER CARTER G. PHILLIPS *

EMILY BURKHARDT JOSEPH R. GUERRA

VICENTE C. FREDERICK BECKNER III

EVANGELINE C. PASCHAL KATHLEEN MORIARTY

HUNTON & WILLIAMS MUELLER

2200 Pennsylvania CHRISTOPHER A. EISWERTH

Avenue, N.W. SIDLEY AUSTIN LLP

Washington, D.C. 20037 1501 K Street, N.W.

(202) 955-1500 Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

March 19, 2015 * Counsel of Record

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS,

EIGHTH CIRCUIT.

No. 12-3753.

Submitted: Feb. 11, 2014

Filed: Aug. 25, 2014.

PEG BOUAPHAKEO; JAVIER FRAYRE; JOSE A. GARCIA;

MARIO MARTINEZ; JESUS A. MONTES; HERIBENTO

RENTERIA, ON BEHALF OF THEMSELVES AND ALL OTHER

SIMILARLY SITUATED INDIVIDUALS,

Plaintiffs-Appellees

TYSON Foops, INC.,

Defendant-Appellant.

Before SMITH, BEAM, and BENTON, Circuit Judges.

Opinion

BENTON, Circuit Judge.

Peg Bouaphakeo and other named plaintiffs are

employees of Tyson Foods, Inc. They represent a class

of employees at Tyson’s meat-processing facility in

Storm Lake, lowa. They sued Tyson for not paying

wages due under the Fair Labor Standards Act of 1938

(FLSA), 29 U.S.C. § 201 et seq., and the lowa Wage

Payment Collection Law (IWPCL), Iowa Code 91A.1 et

seq. A jury returned a verdict for the class. Tyson

appeals. Having jurisdiction under 28 U.S.C. § 1291,

this court affirms.

The employees are current and former “gang-time”

employees at Tyson’s facility. The background is

similar to that in Lopez v. Tyson Foods, Inc., 690 F.3d

869, 873-75 (8th Cir.2012) (adapted to the facts of this

case):

To calculate the employees’ compensable working

time, Tyson measures “gang time”’—when the

employees are at their working stations and

the production line is moving. The employees

claim Tyson failed to provide FLSA overtime

compensation for donning (putting on) personal

protective equipment (PPE) and clothing before

production and again after lunch, and for doffing

(taking off) PPE and clothing before lunch and

again after production. The PPE and clothing

worn by individual employees vary depending on

their role in the process. Tyson classifies items of

PPE and clothing as either “unique” or “non-

unique” to the meat-processing industry. The

employees also seek compensation for trans-

porting the items from lockers to the production

floor.

In ac jition to “gang time,” Tyson adds “K-code”

time to each employee’s paycheck. Before 2007,

Tyson paid four minutes of K-code time per day to

each {employee in a department where knives

were used] in order to compensate for the donning

and doffing of unique items. From [February]

2007 to [June] 2010, Tyson added [several

minutes] per day for pre-and post-shift walking

time required of the employee. Tyson does not

record the actual time that employees perform

any of these tasks.

x** KK

The FLSA prohibits the employment of any person

“for a workweek longer than forty hours unless such

employee receives compensation for his employment

in excess of the hours above specified at a rate not

less than one and one-half times the regular rate at

which he is employed.” 29 U.S.C. § 207(a)(1); JBP, Inc.

v. Alvarez, 546 U.S. 21, 25 (126 S.Ct. 514, 163 L.Ed.2d

288] (2005). An employee who sues for unpaid

overtime “has the burden of proving that he performed

work for which he was not properly compensated.”

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,

686-87 (66 S.Ct. 1187, 90 L.Ed. 1515} (1946),

superseded by statute on other grounds, Portal-to—

Portal Act of 1947, Pub.L. No. 80-49, 61 Stat. 84; Fast

v. Applebee’s Int'l, Inc., 638 F.3d 872, 881 (8th

Cir.2011). “Neither ‘work’ nor ‘workweek’ is defined in

the statute.” Alvarez, 546 U.S. at 25 [126 S.Ct. 514).

At one time, the Supreme Court defined work as

“physical or mental exertion (whether burdensome or

not) controlled or required by the employer and

pursued necessarily and primarily for the benefit of

the employer and his business.” Tennessee Coal, Iron

& R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590,

598 (64 S.Ct. 698, 88 L.Ed. 949] (1944), superseded by

statute on other grounds, Portal—to—Portal Act of 1947,

Pub.L. No. 80-49, 61 Stat. 84. The Court then

“clarified that ‘exertion’ was not in fact necessary for

an activity to constitute ‘work’ under the FLSA.”

Alvarez, 546 U.S. at 25 [126 S.Ct. 514], citing Armour

& Co. v. Wantock, 323 U.S. 126, 133 [65 S.Ct. 165, 89

L.Ed. 118) (1944).

Whether an employee’s activity is “work” does not

end the compensability analysis. In the Portal—to—

Portal Act, Congress excluded some activities that

might otherwise constitute work from the FLSA. The

Act excepts two categories:

(1) walking, riding, or traveling to and from the

actual place of performance of the principal

activity or activities which such employee is

employed to perform, and

(2) activities which are preliminary to or post-

liminary to said principal activity or activities,

which occur either prior to the time on any

particular workday at which such employee

commences, or subsequent to the time on any

particular workday at which he ceases, such

principal activity or activities.

29 U.S.C. § 254(a); Alvarez, 546 U.S. at 26-28, 126

S.Ct. 514. “[A)ctivities performed either before or after

the regular work shift, on or off the production line,

arecompensable _ if those activities are an integral

and indispensable part of the principal activities for

which covered workmen are employed and are not

specifically excluded by [29 U.S.C. § 254(aX1)].”

Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100

L.Ed. 267 (1956) (emphasis added). And, “any activity

that is ‘integral and indispensable’ to a ‘principal

activity is itself a ‘principal activity’ under [29 U.S.C.

§ 254(a)].” Alvarez, 546 U.S. at 37, 126 S.Ct. 514.

The Department of Labor has a “continuous work-

day rule,” generally defining an employee’s “workday”

as “the period between the commencement and

completion on the same workday of an employee’s

principal! activity or activities.” 29 C.F.R. § 790.6(b);

Alvarez, 546 U.S. at 29, 37 [126 S.Ct. 514] (describing

and applying the continuous workday rule). During

the continuous workday, the compensability of all

activities that otherwise satisfy the requirements of

the FLSA is not affected by the Portal-to—Portal Act’s

exceptions. In Alvarez, the Supreme Court held that

“during a continuous workday, any walking time that

occurs after the beginning of the employee’s first

principal activity and before the end of the employee's

last principal activity is excluded from the scope of [the

Portal—to—Portal Act], and as a result is covered by the

FLSA.” Alvarez, 546 U.S. at 37 [126 S.Ct. 514].

The employees sued in 2007, claiming that Tysons

K-code time was insufficient to cover compensable

pre- and post-production line activities, violating the

FLSA and IWPCL. The district court' certified the

FLSA claim as a collective action and the IWPCL

claim as a Rule 23 class action.* During a nine-day

trial, plaintiffs proved liability and damages by using

individual timesheets, along with average donning,

doffing, and walking times calculated from 744

employee observations. The jury returned a verdict

‘ The Honorable Mark W. Bennett, United States District

Judge for the Northern District of lowa. The case was later

transferred to the Honorable John A. Jarvey, United States

District Judge for the Southern District of Iowa.

? See Salazar v. Agriprocessors, Inc., 527 F.Supp.2d 873, 884

(N.D.Iowa 2007) (finding, in a similar donning and doffing case,

that “there is no novel issue of state law in the IWPCL Claim, nor

is there a difference in the terms of proof required by the FLSA

Claim and the [TWPCL Claim. There are no issues of first

impression in the IWPCL Claim that the Iowa courts would be

better suited to answer... . [T]he substance and basis of the FLSA

Claim and the IWPCL Claim is virtually indistinguishable, that

is, the claims involve identical facts and highly similar legal

theories.”) (internal quotations removed). See generally Lindsay

v. Gov't Emps. Ins. Co., 448 F.3d 416, 425 (D.C.Cir.2006) (finding

“state law claims essentially replicate the FLSA claims” in an

overtime case).

for the class of $2,892,378.70. With liquidated

damages, the final judgment totaled $5,785,757.40.

If.

Tyson argues that the district court erred in

certifying the FLSA collective action—under 29 U.S.C.

§ 216(b)—and the IWPCL class—under Rule 23.° Class

certification is reviewed for abuse of discretion. Auritt

v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029 (8th

Cir.2010) (reviewing class certification under Rule 23

for abuse of discretion); Hipp v. Liberty Nat'l Life Ins.

Co., 252 F.3d 1208, 1219 (11th Cir.2001) (“The decision

to create an opt-in class under § 216(b), like the

decision on class certification under Rule 23, remains

soundly within the discretion of the district court.”).

A district court may certify a class under Rule 23(b) if

“questions of law or fact common to class members

predominate over any questions affecting only

individual members,” and “a class action is superior

to other available methods for fairly and efficiently

adjudicating the controversy.” Fed.R.Civ.P. 23(b).

The FLSA allows named plaintiffs to sue “for and in

behalf of... themselves and other employees similarly

situated.” 29 U.S.C. § 216(b). Plaintiffs may be

similarly situated when “they suffer from a single,

FLSA-violating policy, and when proof of that policy

or of conduct in conformity with that policy proves

a violation as to all the plaintiffs.” O’Brien v. Ed

* The district court conditionally certified the FLSA class, and

many employees opted in. See Genesis Healthcare Corp. v.

Symcezyk, ——US. . 133 S.Ct. 1523, 1530, 185 L.Ed.2d 636

(2013) (finding that “employees . . . become parties to a collective

action by filing written consent with the court” after

conditional certification). While the district court never revisited

the conditional certification, the parties treat the FLSA

certification as unconditional.

Donnelly Enters., Inc., 575 F.3d 567, 585 (6th

Cir.2009). A court may consider “(1) disparate factual

and employment settings of the individual plaintiffs;

(2) the various defenses available to defendant which

appear to be individual to each plaintiff; [and] (3)

fairness and procedural considerations.” Thiessen v.

Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th

Cir.2001).*

According to Tyson, factual differences between

plaintiffs—differences in PPE and clothing between

positions, the individual routines of employees, and

variation in duties and management among

departments—make class certification improper.

These differences, Tyson says, do not allow the class

action to “generate common answers apt to drive the

resolution of the litigation.” Wal-Mart Stores, Inc. v.

Dukes, ——U:S. , 131 S.Ct. 2541, 2551, 180

L.Ed.2d 374 (2011). See Luiken v. Domino’s Pizza,

LLC, 705 F.3d 370, 374-76 (8th Cir.2013) (applying

Dukes and reversing certification when the interaction

between individual customers and employees meant

liability was “dominated by individual issues”);

Bennett v. Nucor Corp., 656 F.3d 802, 815 (8th

Cir.2011) (denying certification when there were

“stark inter-departmental variations in job titles,

* FLSA collective actions and Rule 23 class actions have

separate procedures, such as the “opt in” requirement to an FLSA

collective action and the “opt out” requirement for a Rule 23 class

action. See Symezyk, 133 S.Ct. at 1529 (finding Rule 23 precedent

inapposite when considering the mootness of an FLSA action

with no “opt in” parties). Contrary to the dissent’s statement, the

Supreme Court in Symczyk did not find that these actions “may

not be procedurally homogenized for trial” or “do not lend

themselves to inextricably intertwined trials.” Neither party

complains of procedural error from “homogenizing” the claims at

trial.

functions performed, and equipment used”). Unlike

Dukes, Tyson had a specific company policy—the

payment of K-code time for donning, doffing, and

walking—that applied to all class members. Unlike

Dukes, class members worked at the same plant

and used similar equipment. The time study showed

that donning and doffing all equipment, plus walking,

took an average of 18 minutes in the fabrication

department and 21 minutes in the kill department.

True, applying Tyson’s K-code policy and expert

testimony to “generate answers” for individual

overtime claims did require inference, but this

inference is allowable under Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed.

1515 (1946) (allowing liability based on “just and

reasonable inference” when complete records do not

exist). While individual plaintiffs varied in their

donning and doffing routines, their complaint is not

“dominated by individual issues” such that “the varied

circumstances. prevent ‘one stroke’ determination.”

Luiken, 705 F.3d at 374, 376, quoting Dukes, 131 S.Ct.

at 2551. The district court did not abuse its discretion

in certifying the class.

Tyson also contends that the class should be

decertified because evidence at trial showed that some

class members did not work overtime and would

receive no FLSA damages even if Tyson under-

compensated their donning, doffing, and walking. See

In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d

604, 616 (8th Cir.2011) (“A district court may not

certify a class ‘if it contains members who lack

standing.’ ”), quoting Auritt, 615 F.3d at 1034; Blades

v. Monsanto Co., 400 F.3d 562, 571 (8th Cir.2005)

(when “not every member of the proposed classes can

prove with common evidence that they suffered impact

from the alleged conspiracy damages to all class

members must be shown to justify the class action”).

Cf. Espenscheid v. DirectSat USA, LLC, 705 F.3d 770,

774 (7th Cir.2013) (finding certification improper

when piece-rate system varied pay from worker-to-

worker, use of an average conferred a “windfall” on

some class members, and employees had incentive to

under-report time). Tyson exaggerates the authority

for its contention. See Comcast Corp. v. Behrend, ——

U.S. ——, 133 S.Ct. 1426, 1433, 185 L.Ed.2d 515

(2013) (allowing variation in damages unless

“individual damage calculations overwhelm

questions common to the class”); Amgen Inc. v.

Connecticut Ret. Plans & Trust Funds, — U.S.

133 S.Ct. 1184, 1191, 185 L.Ed.2d 308 (2013) (“Rule

23(bX3) requires a showing that questions common to

the class predominate, not that those questions will be

answered, on the merits, in favor of the class.”) (second

emphasis added); DeBoer v. Mellon Mortg. Co., 64 F.3d

1171, 1174 (8th Cir.1995) (“The fact that individuals . .

will have claims of differing strengths does not

impact on the commonality of the class as

structured.”); Mejdrech v. Met-Coil Sys. Corp., 319

F.3d 910, 911 (7th Cir.2003) (“If there are genuinely

common issues, issues identical across all the

claimants, issues moreover the accuracy of the

resolution of which is unlikely to be enhanced by

repeated proceedings, then it makes good sense,

especially when the class is large, to resolve those

issues in one fell swoop.”).*

* The dissent says that the class fails because commonality

under Rule 23 “requires. . that all class members suffered the

same injury,” and that “the locution ‘injury’ includes the measure

of a class member’s individual damages.” Individua] damage

calculations, however, are permissible if they do not “overwhelm

questions common to the class.” Comcast, 133 S.Ct. at 1433. The

district court found the differences between gang-time employees

10a

At any rate, at Tyson’s request, the jury was

instructed, “Any employee who has already received

full compensation for all activities you may find to be

compensable is not entitled to recover any damages.”

Tyson’s instruction directed the jury to treat plaintiffs

with no damages as class members. It is “fundamental

that where the defendant ‘invited error’ there can

be no reversible error.” United States v. Beason, 220

F.3d 964, 968 (8th Cir.2000), quoting United States v.

Steele, 610 F.2d 504, 505 (8th Cir.1979).

iil.

Tyson believes that plaintiffs improperly relied on a

formula to prove liability. In Dukes, the Supreme

Court disapproved of “Trial by Formula.”

A sample set of the class members would be

selected, as to whom liability for sex discrimina-

tion and the backpay owing as a result would be

determined in depositions supervised by a master.

The percentage of claims determined -e be valid

would then be applied to the entire remaining

class, and the number of (presumptively) valid

claims thus derived would be multiplied by the

average backpay award in the sample set to arrive

at the entire class recovery—without further

individualized proceedings.

Dukes, 131 S.Ct. at 2561. Here, plaintiffs do not prove

liability only for a sample set of class members. They

prove liability for the class as a whole, using employee

time records to establish individual damages. Using

statistics or samples in litigation is not necessarily

“small” and allowed individual damage calculations based on

undisputed employee timesheets. This was not an abuse of

discretion.

lla

trial by formula. See Comcast, 133 S.Ct. at 1434

(considering expert's multiple-regression model);

Perez v. Mountaire Farms, Inc., 650 F.3d 350, 372 (4th

Cir.2011) (favoring “a calculation based on the

summation of mean times” to represent “the amount

of time that employees working at the plant actually

spend donning and doffing”). Cf. Martinez v. Ryan,

— US. , 132 S.Ct. 1309, 1325 n. 5, 182 L.Ed.2d

272 (2012) (relying on “a sample of federal habeas

cases”).

Plaintiffs do rely on inference from average donning,

doffing, and walking times, but they apply this

analysis to each class member individually. Using

this representative evidence is comparable to a jury

applying testimony from named plaintiffs to find

classwide liability. See Fed.R.Civ.P. 23 (allowing

representative parties when their claims “are typical

of the claims or defenses of the class” and they “fairly

and adequately protect the interests of the class”). For

the donning, doffing, and walking in Mt. Clemens,

testimony from eight employees established liability

for 300 similarly situated workers. Mt. Clemens, 328

U.S. at 684, 66 S.Ct. 1187; Mt. Clemens Pottery Co. v.

Anderson, 149 F.2d 461, 462 (6th Cir.1945) (discussing

testimony). To prove damages, the Court remanded for

“the determination of the amount of walking time

involved and the amount of preliminary activities

performed” based on “whatever reasonable inferences

can be drawn from the employees’ evidence.” Mt.

Clemens, 328 U.S. at 693-94, 66 S.Ct. 1187.

Tyson claims that plaintiffs presented insufficient

evidence to prove damages classwide. See Murray v.

Stuckey’s, Inc., 939 F.2d 614, 621 (8th Cir.1991)

(“[Pjlaintiffs’ evidence failed to show, for each

individual plaintiff, ‘that he has in fact performed

12a

work for which he was improperly compensated.’ ”),

quoting Mt. Clemens, 328 U.S. at 687, 66 S.Ct. 1187;

Marshall v. Truman Arnold Distrib. Co., Inc.,

640 F.2d 906, 911 (8th Cir.1981) (requiring further

evidence from non-testifying employees before

awarding damages when earnings projections were

substantially rebutted by cross-examination). Cf

Dukes, 131 S.Ct. at 2560 (requiring “individualized

determinations of each employee’s eligibility for

backpay” as a procedural prerequisite for certification

under Title VII). This court “will not reverse a jury

verdict for insufficient evidence unless ‘after viewing

the evidence in the light most favorable to the verdict,

lit concludes] that no reasonable juror could have

returned a verdict for the non-moving party.’ ”

Denesha v. Farmers Ins. Exch., 161 F.3d 491, 497 (8th

Cir.1998), quoting Ryther v. KARE 11, 108 F.3d 832,

836 (8th Cir.1997) (en banc). See Sandifer v. United

States Steel Corp., —— US. , 134 S.Ct. 870, 880,

187 L.Ed.2d 729 (2014) (agreeing “with the basic

perception of the Courts of Appeals that it is most

unlikely Congress meant [the FLSA] to convert federal

judges into time-study professionals”). Tyson has no

evidence of the specific time each class member spent

donning, doffing, and walking. “[W]hen an employer

has failed to keep proper records, courts should not

hesitate to award damages based on the ‘just and

reasonable inference’ from the evidence presented.”

Reich v. Stewart, 121 F.3d 400, 406 (8th Cir.1997),

quoting Martin v. Tony & Susan Alamo Found., 952

F.2d 1050, 1052 (8th Cir.1992) (allowing “pattern or

practice” evidence when defendant provided “self-

serving, unsubstantiated approximations” of employee

hours), citing Mt. Clemens, 328 U.S. at 687-88, 66

S.Ct. 1187.

l3a

To prove damages, plaintiffs use individual

timesheets, along with average times calculated from

a sample of 744 observations of employee donning,

doffing, and walking. Plaintiffs’ expert testified that

the sample was large for this type of study,

representative, and approximately random. He

testified that the study used “accepted procedure in

industrial engineering.” Tyson’s Director of Human

Resources testified that K-code time did not include

the donning and doffing of much non-unique PPE. Pay

data—which came directly from Tyson—showed the

amount of K-code time each individual received.

Sufficient evidence existed to support a “reasonable

inference” of classwide liability. Mt. Clemens, 328 U.S.

at 687, 66 S.Ct. 1187.

Tyson asserts that even if sufficient evidence

supported damages, plaintiffs’ claims still fail because

it is uncertain if any uncompensated work was

performed, citing Carmody v. Kansas City Board of

Police Commissioners, 713 F.3d 401, 406 (8th

Cir.2013) (“Anderson |v. Mt. Clemens Pottery Co.) only

applies where the existence of damages is certain.

Anderson allows uncertainty only for the amount of

damages.”). In Carmody, the plaintiffs did not

“produce|[ | evidence indicating any hours worked over

forty hours per week were never paid.” Jd. The

plaintiffs “did not provide any evidence of actual

damages because the testimony contained no

reference to overtime hours that violated the FLSA.”

Id. at 407. Here, Tyson stipulates that “workers at

the Storm Lake plant tend to work a significant

amount of overtime on a weekly basis.” Plaintiffs show

uncompensated overtime work by applying average

donning, doffing, and walking times to employee

timesheets. The evidence is “susceptible to [the]

reasonable inference” that the jury’s verdict is correct.

l4a

Troknya v. Cleveland Chiropractic Clinic, 280 F.3d

1200, 1206 (8th Cir.2002).®

xx **

The judgment is affirmed.

BEAM, Circuit Judge, dissenting.

For two independent but somewhat factually related

reasons, this case should be reversed, remanded and

dismissed. First, under the circumstances of this

litigation, neither the putative Fair Labor Standards

Act (FLSA) collective action (the so-called federal

class) nor the purported Iowa Wage Payment

Collection Law (IWPCL) Rule 23(b\3) class (the so-

called state class) were eligible for class certification,

either as a matter of fact or a matter of law. Wal-Mart

Stores, Inc. v. Dukes, — US. , 131 S.Ct. 2541,

2551, 180 L.Ed.2d 374 (2011); O’Brien v. Ed Donnelly

Enters., Inc., 575 F.3d 567, 583-84 (6th Cir.2009);

Thiessen v. General Elec. Capital Corp., 267 F.3d 1095,

1102-03 (10th Cir.2001). Second, Rule 23 state-law-

based class actions are fundamentally different

than collective actions authorized under the FLSA

and may not be procedurally homogenized for trial as

done in this case.’ Genesis Healthcare Corp. v.

® Tyson also argues that the jury failed to follow the directions

of plaintiffs’ damages expert, who testified that the jury could

choose only “all or nothing” of her model. A jury is not required to

follow an expert’s conclusion. See Children’s Broad. Corp. v. The

Walt Disney Co., 357 F.3d 860, 866 (8th Cir.2004).

* In its footnote 2, the court takes issue with this observation.

In support, the court cites Salazar v. Agriprocessors, Inc., 527

F.Supp.2d 873 (N.D.lowa 2007), and Lindsay v. Government

Employees Insurance Co., 448 F.3d 416 (D.C.Cir.2006). Although

subject matter jurisdiction was not in dispute in this case,

Salazar and Lindsay deal with whether a federal cause of action

15a

Symezyk, —— U.S. ——, 133 S.Ct. 1523, 1529, 185

L.Ed.2d 636 (2013).

I. BACKGROUND

This litigation generally involves hourly production

employees of Tyson Foods at its Storm Lake, Iowa,

meat-processing facility. But, the dispute more

basically involves six named (lead) plaintiff employees

from the kill, cut and retrim departments of the

Storm Lake operation who were paid their wages

using, in part, Tyson’s “gang-time” compensation

system but who also claim to have been owed overtime

pay resulting from disparate compensable work

activities occurring at times other than while earning

daily “gang time” kill, cut and retrim department

production line compensation. The six attempt to

assert two separate collective actions—a federal

statutory action asserting violations of the FLSA, 29

U.S.C. §§ 201-219, and a state statutory action

separately based upon the IWPCL, Iowa Code Chapter

91A.

This case was originally assigned to the Honorable

Mark Bennett who conditionally “certified” a federal

collective action class pursuant to 29 U.S.C. § 216{b)

and a purported IWPCL state law class pursuant to

(the FLSA) and a state cause of action (the TWPCL) “derive’

sufficiently from the same “common nucleus of operative facts’

that, when joined, they form part of a case and controversy under

Article III of the United States Constitution. Lindsay, 448 F.3d

at 424 (quotation omitted), Salazar, 527 F.Supp.2d at 880

(quotation omitted); See 28 U.S.C. § 1367(a). But, “case and

controversy” standing is not the fundamental! issue here. The

question is whether the separate federal and state claims were

sufficiently identical to be presented to the jury, as here, as one

amalgamated cause of action. In my view, Supreme Court

precedent indicates they were not.

16a

Federal Rule of Civil Procedure 23(bX3). Then,

because the Honorable John Jarvey was already

assigned to several comparable cases involving Tyson,

including a case involving Tyson employees at

Columbus Junction, Iowa, Guyton v. Tyson, No. 3:07-

cv-00088—JAJTJS (S.D.lowa) (a companion case on

appeal), this matter was transferred to Judge Jarvey

for further pretrial and post-trial proceedings and for

trial. The case has now been litigated and is before this

panel on appeal.

Il. DISCUSSION

1. The Classes

A. The Federal FLSA Class

A collective action to recover damages permitted

by the FLSA “may be maintained against any

employer ._ in any Federal or State court of

competent jurisdiction by anyone or more employees

for and in behalf of himself or themselves and other

employees similarly situated.” 29 U.S.C. § 216(b).

However, “(nlo employee shall be a party plaintiff to

any such action unless he gives his consent in writing

to become such a party and such consent is filed in the

court in which such action is brought.” Jd.

The six named lead plaintiff employees who sought

to establish this collective action bore the “burden of

showing that the opt-in [consenting] plaintiffs are

similarly situated to the lead plaintiffs.” O’Brien, 575

F.3d at 584. Judge Bennett, apparently recognizing

the likely existence of numerous factors unrelated to

the “gang-time” pay used to determine a given Tyson

employee’s regular wages—factors amply established

by the evidence at trial—certified a “conditional”

FLSA class consisting of employees from the kill, cut

and retrim departments at the Tyson plant paid

17a

through the so-called gang-time compensation system

within a discrete time period set forth in the

certification. Indeed, the conditional certification

related only to the three departments and the gang-

time pay earned in the production line in those

departments. No other regular or overtime pay

calculation factors discussed at the merits portion of

the trial (such as: individual employment codes,

specific duties, wage-rate variations, knife wielding

protections, sanitary clothing and equipment, part-

time work, illness, injury, shift differentials, and

routine production line overtime) were in any way

incorporated as limitations on the use of the FLSA

conditional class. The record reveals that this

“conditional” designation was never withdrawn or

modified at any time during or after the trial.

According to the joint stipulation of facts by the

parties, there were 444 employees who consented to be

a part of this FLSA collective action class including the

six named lead plaintiffs.

B. The IWPCL State Class

““In order to obtain class certification, a plaintiff has

the burden of showing that the class should be

certified and that the requirements of Rule 23 are

met.’ ” Luiken v. Domino’s Pizza, LLC, 705 F.3d 370,

372 (8th Cir.2013) (quoting Coleman v. Watt, 40 F.3d

255, 258 (8th Cir.1994)). Judge Bennett, at the request

of the same six named plaintiffs who sought creation

of and joined the FLSA collective class, ultimately

certified what he termed a “modified” 3,344—person

putative Rule 23 state law class consisting of all

“current and former employees of Tyson’s Storm Lake,

Iowa, processing facility who have been employed

at any time from February 7, 2005, to the present,

and who are or were paid under a ‘gang-time’

18a

compensation system in the Kill, Cut or Retrim

departments.” This certification also included no other

limiting or enhancing overtime pay calculation

elements. The record discloses that this certification

was likewise never further embellished or modified

during or after trial.

The “gang-time system of payment” as referred to by

Judge Bennett and defined by the evidence is a system

where employees are paid from the time their

production line starts to the time their production line

ends. There is no contention by the named plaintiffs

that the Storm Lake Tyson employees did not receive

all wages due and owing for time worked during the

production line gang-time pay periods. So, standing by

itself, as it does in the class certifications, the gang-

time production line classification means little in the

context of proving at trial through evidence common to

the class the overtime pay claims of the 3,344

members of the allegedly underpaid overtime class.

Supreme Court and Eighth Circuit precedent

demands otherwise. See Dukes, 131 S.Ct. at 2549-50

(discussing the requirements of class certification); see

also Lopez v. Tyson Foods, Inc., 690 F.3d 869, 874 (8th

Cir.2012) (an employee who sues for unpaid overtime

has the burden of proving he performed work for which

he was not properly compensated).

To be certified for purposes of Rule 23(a), the

collective groupings, that is the putative classes, must

have been such that Tyson was positioned to assert

its legitimately held common-to-the-class defenses

against all members of the group who claimed to have

earned unpaid overtime wages. See Fed.R.Civ.P.

23(a\(3). In this same context, the class must have

been limited to Tyson employees who could and did

establish entitlement to overtime pay resulting from

19a

overtime work performed during compensable time,

that is, work performed at times other than production

line gang-time pay periods-periods for which all class

members were already routinely, regularly, and

unquestionably paid by Tyson in accordance with the

law.

“In order to obtain class certification, a plaintiff has

the burden of showing that the class should be

certified and that the requirements of Rule 23 are

met.” Luiken, 705 F.3d at 372 (quotation omitted).

While a Rule 23(b\3) class was purportedly certified,

any Rule 23 class may only be lawfully certified if

the “trial court is satisfied, after a rigorous analysis,

at the prerequisites of Rule 23(a) have been

satisfied.” Dukes, 131 S.Ct. at 2551 (quotation

omitted). Actual, not presumed, conformance with

Rule 23(a) remains indispensable. Jd. Frequently, as

in this case, “ ‘rigorous analysis’ will entail some

overlap with the merits of the plaintiffs underlying

claim.” Jd. Rule 23(a)’s four bedrock requirements are

numerosity, commonality, typicality and adequate

representation (here, a named plaintiff with standing).

Commonality requires the plaintiff to demonstrate at

the time of the merits hearing on the underlying

claim—that all class members suffered the same

injury. Dukes, 131 S.Ct. at 2551. So, if the locution

“injury” includes the measure of a class member's

individual damages, as I believe it does, this class fails

on that score alone.

The court majority apparently sees a pathway

around plaintiffs’ legal dilemma arising from the

above-noted class formulation failures. Although

acknowledging that class certification is improper

when a “windfall” is conferred on some class members,

ante at 797, the court makes the following observation:

20a

At any rate, at Tyson’s request, the jury was

instructed, “Any employee who has already

received full compensation for all activities you

may find to be compensable is not entitled to

recover any damages.” Tyson’s_ instruction

directed the jury to treat plaintiffs with no

damages as class members. It is “fundamental

that where the defendant. ‘invited error’ there

can be no reversible error.” United States v.

Beason, 220 F.od 964, 968 (8th Cir.2000) (quoting

United States v. Steele, 610 F.2d 504, 505 (8th

Cir.1979)).

Ante at 798.

Thus, says the court, Tyson “directed the jury to

treat plaintiffs with no damages as class members.”

However, Tyson made no such class membership

directive to the jury through its instructional request

and Beason and Steele are wholly inapposite as case

precedent for the court’s faulty premise. The cases deal

only with run-of-the-mill evidentiary matters, not

waivers of legal principles. Beason simply opened the

door to the making of a Bruton exception by permitting

an admission from a non-testifying co-defendant,

and Steele admitted otherwise inadmissible hearsay

evidence to clarify and rebut an issue opened by the

criminal defendant’s cross-examination. Tyson, after

vigorously resisting class action formulations at every

turn in this litigation, and being denied, properly

requested an instruction that the plaintiffs be held to

their evidentiary burdens of proof.

C. The Merits

Fundamentally, as previously noted, this case

emerges from two separate causes of action brought

through a single federal court complaint—a federal

2la

law cause of action alleging liability leading to

damages arising from violation of the FLSA and a

state law cause of action alleging liability and

damages arising from violation of the IWPCL. The

burden of proof on all issues of statutory liability,

injury and measure of damages rests squarely upon

the shoulders of the named plaintiffs. Lopez, 690 F.3d

at 874. In this case, gang-time pay is not in dispute.

The plaintiffs contend, as does the court majority, that

the overtime pay dispute involves time spent by a class

of Tyson employees in doffing and donning various

sanitary and personal protection equipment before

and after the gang-time production line work has been

completed each day.

Tyson's Storm Lake employees are required to wear

a different combination of sanitary and protective

gear. Those employees wearing knives to use in

conjunction with their particular duties on a

particular day are required to wear a combination of

a plastic belly guard, mesh apron, mesh sleeve,

plexiglass arm guard, mesh glove, Polar glove,

membrane skinner gloves, Polar sleeves, “steel” for

maintaining the knives and knife scabbards (“knife

related gear”). Other workers are required to wear a

hard hat, hairnet, beard net, earplugs, ear muffs,

rubber or cotton gloves, and rubber or plastic aprons

(“sanitary gear”).

From 1998 until February 4, 2007, Tyson paid four

extra minutes beyond production line time for all

production employees, referred to as “K—Code” time.

From February 4, 2007, to June 28, 2010, Tyson

ceased paying non-knife-wielding employees for the

time donning and doffing sanitary gear. From

February 4, 2007, to June 28, 2010, Tyson paid knife-

wielding employees between 4 to 8 minutes of K-Code

22a

time, depending on the job, and employees who did no*

have a knife did not receive K—Code time payments.

Plaintiffs offered evidence at trial concerning a

sample of putative class employees from Dr. Kenneth

Mericle and Dr. Lies] Fox. Fox’s calculation testimony

fed off of Mericle’s evidence concerning Rule 23 class

damages for overtime pay. Fox testified, assuming

Mericle’s evidence was true, that at least 212 members

of the purported class did not suffer any damages

because the doffing and donning time, less the K-Code

time “would not have been enough to kick them into

overtime.” Further, while the plaintiffs’ evidence

generally indicated some individual overtime damages

ranging from a few cents to several thousand dollars,

there were at least 509 workers whose injuries ranged

from $0.27 to less than $100. And, the record discloses

that the jury in returning only a single gross amount

of damages verdict, as instructed, discounted

plaintiffs’ evidence by more than half, likely indicating

that more than half of the putative class suffered

either no damages or only a de minimis injury

measured in cents rather than dollars. In spite of

having the burden of proof, there was no evidence

adduced by plaintiffs that established the number of

purported class member employees fully compensated

or not fully compensated by the K—Code payments

already paid by Tyson. It is evident, however, that

many class employees fit within each category and all

were apparently included as beneficiaries of the single

damages verdict returned by the jury.

Rule 23(a)(2) contemplates that “there are questions

of law or fact common to the class.” “Commonality

requires the plaintiff to demonstrate that the class

members have suffered the same injury. This does not

mean merely that they have all suffered a violation of

23a

the same provision of law.” Dukes, 131 S.Ct. at 2551

(quotation and citation omitted). Rather, “[t)heir

claims must depend upon a common contention.

That common contention, moreover, must be of such a

nature that it is capable of class-wide resolution—

which means that determination of its truth or falsity

will resolve an issue that is central to the validity of

each one of the claims in one stroke.” Jd. “What

matters to class certification is not the raising of

common ‘questions’ but, rather the capacity of a

class-wide proceeding to generate common answers

apt to drive the resolution of the litigation.” Jd. (first

alteration and italics in original) (quotation omitted).

That was not the case here. While it is true that all

class members were subject to a common policy—

gang-time payment—there is no “common answer,”

arising from the evidence concerning the individual

overtime pay questions at issue in this case. Thus, this

case with these classes cannot be resolved in “one

stroke,” given the differences in donning and doffing

times, K-—Code payments, abbreviated gang time

shifts, absenteeism, sickness, vacation and a myriad of

other relevant factors. The “rigorous” analysis of class

certification in this case, which overlaps with the

merits as required by Dukes, 131 S.Ct. at 2551, clearly

discloses that the Rule 23 class claim does not comply

with either rule or precedent and should have been

decertified

Finally, the wisdom of the Supreme Court’s

statement in Symczyk, 133 S.Ct. at 1530, that Rule 23

class actions and collective actions under the FLSA

are fundamentally different and thus do not lend

themselves to inextricably intertwined trials, as here,

24a

is well dramatized by this case. Here we have

undifferentiated presentations of evidence, including

significant numbers of the putative classes suffering

no injury and members of the entire classes suffering

wide variations in damages, ultimately resulting in a

single-sum class-wide verdict from which each

purported class member, damaged or not, will receive

a pro-rata portion of the jury’s one-figure verdict.

Assuming that the district court could now re-open the

proceedings in an effort to deal with an individual

plaintiffs damages using the Mericle/Fox evidence,

the exercise would be laborious, virtually unguided,

and well outside of the limiting parameters the

Supreme Court has, as a matter of law, placed upon

use of the Rule 23 class action machinery.

Ill. CONCLUSION

From this result, I dissent.

* In footnotes 3 and 4, the court again takes issue with this

contention. Interestingly, in doing so, the court cites Symezyk, a

case that clearly holds to the contrary. In Symezyk, the Supreme

Court, in discussing an FLSA mootness issue and the

applicability, or not, of Rule 23 class action cases to that

particular question, stated: “Rule 23 actions are fundamentally

different from collective actions under the FLSA.” 133 S.Ct. at

1529. And then more to the point here, the Supreme Court held

that although a putative class acquires “independent legal status

once it is certified under Rule 23[, uJnder the FLSA, by contrast,

‘conditional certification’ does not produce a class with an

independent legal status, or join additional parties to the action.

The sole consequence of conditional certification is the sending of

court-approved notification to employees.” Jd. at 1530. Thus, the

FLSA class in this case never progressed beyond “conditional”

status and could not, as a matter of law, have been joined with

the supposed Rule 23 class in an actionable claim of any kind,

however the parties may have chosen to treat this conditional

effort, which treatment is unclear froin the record.

25a

APPENDIX B

UNITED STATES DISTRICT COURT,

N.D. IOWA,

WESTERN DIVISION.

No. 5:07—cv—04009

Sept. 26, 2012.

PEG BOUAPHAKEO, ET AL., INDIVIDUALLY AND ON

BEHALF OF OTHERS SIMILARLY SITUATED.

Plaintiffs,

TYSON Foops, INC.,

Defendant.

ORDER

JOHN A. JARVEY, District Judge.

This matter comes before the Court on Defendant's

motion for a judgment as a matter of law and motion

to decertify or, in the alternative, for a new trial on

damages, filed on October 24, 2011. [Dkt. No. 305).

Plaintiffs filed their resistance to Defendant's motion

on November 15, 2011. [Dkt. No. 310]. Defendant

replied to Plaintiffs’ resistance on December 1, 2011.

[Dkt. No. 313]. For reasons more fully explained

below, the Court denies Defendant’s motion.

Il. FACTUAL BACKGROUND

These motions stem from a five-year dispute

between the parties that culminated in a two-week

trial in Sioux City, lowa in September of 2011. The

26a

Plaintiffs are all current or former employees of

Defendant at their Storm Lake, Iowa facility. All

Tyson production workers at the Storm Lake plant

wear at least some items of personal protective

equipment (“PPE”), which includes hard hats, ear

plugs, boots, frocks, hair nets, hard plastic arm

guards, mesh aprons, mesh sleeves or Kevlar sleeves,

scabbards, cotton gloves, rubber gloves, cut-resistant

(Kevlar) gloves, and mesh gloves.

Tyson Storm Lake hourly production workers must

have all required and cleaned PPE on before the first

piece of meat product reaches their work station on

the assembly line. Employees are not permitted to

perform work on the production line without wearing

all required PPE, and they are disciplined if they

are not wearing their required PPE. Tyson pays its

Storm Lake hourly production workers, in part, on a

“gang time” basis. “Gang time” is the time that the

processing lines are moving and during which

production workers are physically at the assembly line

while the lines are moving and producing product. In

and of itself, “gang time” does not record time that

production workers spend donning, doffing, and

cleaning themselves and their PPE before and after

“gang time” and at unpaid meal breaks. In addition to

“gang time” Tyson pays its hourly production workers

“extra” minutes per day to compensate them for

donning, doffing, and washing their PPE. The

payment of “extra” minutes beyond the “gang time” for

donning and doffing activities is referred to as “K-

Code” time.

The parties have long disputed whether or not this

K—Code time adequately compensates employees for

the time they spend donning and doffing their PPE. In

February 2007 Plaintiffs filed suit against Defendant

27a

alleging violations of the Fair Labor Standards Act

and the Iowa Wage Payment Collection law. Both a

collective action under the Fair Labor Standards Act

and a Rule 23 class were certified in this matter, and

the case proceeded as a collective and class action. In

September of 2011 a jury tnal was held among the

parties to resolve these issues. After the parties

presented evidence to the jury for nine days, the case

was submitted to the jury on September 23, 2011. The

jury returned with a verdict on September 26, 2011.

The jury found that the plaintiffs proved that the time

spent donning and doffing their PPE was “work”

within the meaning of the Fair Labor Standards Act:

that this “work” was “integral and indispensable” to

the employees’ gang-time work; that the meal break

was a bona fide meal period; that the donning and

doffing activities at issue in the case were not “de

minimis,” and that the plaintiffs proved that they were

entitled to additional compensation for their donning

and doffing activities. The jury awarded $2,892,378.70

in damages to the Plaintiffs.

Il. LEGAL STANDARD

a. Judgment as a Matter of Law

“Judgment as a matter of law is only appropriate

when no reasonable jury could have found for the

nonmoving party.” S. Wine and Spirits of Nev. v.

Mountain Valley Spring Co., LLC, 646 F.3d 526, 534

(8th Cir.2011) (citing Mattis v. Carlon Elec. Prods.,

295 F.3d 856, 860 (8th Cir.2002)). In the Court's

analysis, “we may not weigh the credibility of

evidence, and conflicts in the evidence must be

resolved in favor of the verdict.” Jd. (citing Schooley v.

Orkin Extermination, Co., Inc., 502 F.3d 759, 764 (8th

Cir.2007)). If no evidence supports the nonmoving

party—that is, if all the evidence points in favor of the

28a

moving party—then the Court may grant a motion for

judgment as a matter of law. Johnson v. Texarkana

Ark. Sch. Dist. No. 7, Slip Copy, 2012 WL 527907, at

*1 (W.D.Ark. February 16, 2012).

“Where conflicting inferences reasonably can be

drawn from the evidence, it is the role of the jury, not

the court, to determine which inferences shall be

drawn.” Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021,

1029 (8th Cir.2002). Therefore, it is inappropriate

for this Court to overturn a jury verdict “unless, after

giving the nonmoving party the benefit of all

reasonable inferences and resolving all conflicts in the

evidence in the nonmoving party’s favor, there still

exists a complete absence of probative facts to support

the conclusion reached so that no reasonable juror

could have found for the nonmoving party.” Id.

(internal quotation omitted).

b. New Trial

This Court may order a new trial only under the

circumstances where a “miscarriage of justice” would

occur without one. White v. Pence, 961 F.2d 776, 780

(8th Cir.1992) (“When through judicial balancing the

trial court determines that the first trial has resulted

in a miscarriage of justice, the court may order a new

trial, otherwise not.” Jd.) “A new trial may not be

granted on the grounds that a jury’s verdict is

excessive unless the court concludes that the jury's

verdict is a plain injustice or a monstrous or shocking

result.” Stafford v. Neurological Med., Inc., 811 F.2d

470, 475 (8th Cir.1987) (internal quotations omitted).

Ill. DISCUSSION

In this case it cannot be said that no reasonable

juror could have found for the Plaintiffs, or that the

jury’s verdict was a monstrous or shocking result.

29a

Defendant argues that the evidence at trial was not

sufficient to support liability because Plaintiffs failed

to show that each individual employee had not already

been fully compensated for any overtime hours they

worked. However, Plaintiffs called two experts to help

determine both liability and damages. Dr. Kenneth

Mericle conducted a time study at Defendant’s facility

and determined how much time Plaintiffs spent

donning and doffing their PPE. Dr. Leisle Fox used

these numbers to calculate the amount of money owed

to each Plaintiff for these activities. Dr. Fox did this

by creating a database that included al] Plaintiffs. [Tr.

Ex. 349]. In this database, she made calculations for

each Plaintiff individually by subtracting what was

already paid to the employee in K-code time or

determining if the employee was not owed extra

payment for the week because their work did not

exceed 40 hours and calculated what was owed to them

on a week-by-week basis.

Additionally, Plaintiffs provided evidence from

several opt-in plaintiffs, as well as Tyson employees,

who testified to the general practices of employees

regarding the donning and doffing of PPE. This

included which PPE items were used by different

groups of employees—including knife-wielders and

non-knife-wielders—how often people donned and

doffed these items, how these items were stored,

cleaned, and sanitized, and how long it generally took

for people to don and doff the items. Also included

in the evidence was testimony regarding Defendant's

practice of paying on the “gang time” system and

adding K-code time to individual employees’

paychecks in order to compensate them for the time

the company believed it should take the employees to

don and doff their PPE. Witnesses also testified that

30a

Plaintiffs spent more time donning and doffing their

PPE than Defendaiii paid them in K-code time.

The Court finds this evidence was sufficient for

the jury to conclude that Defendant was liable for

violating the Fair Labor Standards Act and the Iowa

Wage Payment Collection Law, and that it was also

sufficient for their damages calculations. It is not the

role of the Court to attempt to divine the motivations

of the jury or to determine the precise calculations of

the damages they awarded. See /eSueur Creamery,

Inc. v. Haskon, Inc., 660 F.2d 342, 354 (8th Cir.1981)

(“The trial j:.*ge is not free to speculate as to the

reasons for the jury’s verdict.” Jd.) Instead, the Court

must only look to see if there was sufficient evidence

in the record from which the jury could make the

determinations they did. Plaintiffs provided sufficient

evidence in the form of witness testimony and the

expert calculations of Dr. Mericle and Dr. Fox. In this

case, there is not a complete absence of probative facts

to support the conclusion, nor did a miscarriage of

justice occur. The Court concludes that the Defendant

failed to meet the heavy burden the law requires to

overturn a jury’s verdict and award of damages.

IV CONCLUSION

Upon the foregoing,

IT IS ORDERED that Defendant’s Motion for a

Judgment as a Matter of Law and Motion to Decertify

or, in the alternative, for a New Trial on Damages

(Dkt. No. 305) is DENIED.

3la

APPENDIX C

UNITED STATES DISTRICT COURT,

N.D. IOWA,

WESTERN DIVISION.

No. 5:07-cv-04009-JAJ

Aug. 25, 2011.

PEG BOUAPHAKEO, ET AL., INDIVIDUALLY AND ON

BEHALF OF OTHERS SIMILARLY SITUATED,

Plaintiffs,

TYSON Foops, INC.,

Defendant.

ORDER

JOHN A. JARVEY, District Judge.

This matter comes before the court pursuant to

defendant’s July 27, 2011 motion for decertification of

Rule 23 class (dkt. 212]. Plaintiffs filed their

opposition to defendant’s motion to decertify Rule 23

class on August 19, 2011 (dkt. 227]. Defendant filed its

reply brief on August 24, 2011 [dkt. 226-1).

Defendant argues that the Supreme Court’s recent

decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct.

2541 (June 20, 2011) mandates decertification of the

plaintiffs’ Rule 23 class. Defendant argues that

32a

decertification is warranted because the court’s’ order

granting class certification found that defendant’s

gang time compensation system was the “tie that

binds” the class together under a single purported

common question of law, and the Supreme Court in

Dukes held that common questions of law are not

sufficient to certify a class. Further, defendant claims

that plaintiffs’ use of a “representative sample” of

hourly employee witness to prove class claims is

prohibited by Dukes, which makes clear an employer's

entitlement to individualized determinations of each

class member’s eligibility for back pay and expressly

rejects certification of back pay claims proven through

a “sample set” of class members whose damages are

extrapolated to the entire class.

Plaintiffs argue in their resistance to defendant’s

motion to decertify should be denied because, unlike

Dukes, this case involves no individual-by-individual

determinations, and defendant’s de minimus defense

likewise must be answered across-the-board “in one

stroke” for the class as a whole. Plaintiffs claim

that this case satisfies the Dukes standard for

commonality because a “common answer” is required

for the following dispositive question: whether the

subject activities are “work” and “integral and

indispensable” to a principal activity because they are

necessary to job performance and primarily benefit the

defendant.

The court has studied the Dukes decision and finds

its holdings and analysis largely inapplicable to and/or

' See Judge Bennett’s July 3, 2008 Memorandum Order and

Opinion Regarding Plaintiffs’ Motions for Conditional

Certification as a Collective Action under the FLSA and

Certification as a Class Action under Rule of Civil Procedure 23

(dkt. 62).

33a

distinguishable from the instant case. In Dukes the

District Court and the Court of Appeals approved the

certification of a class comprising about one and a half

million plaintiffs nationwide, current and former

female employees of Wal-Mart who alleged that the

discretion exercised by their local supervisors over

pay and promotion matters violated Title VII by

discriminating against women. Dukes, 131 S.Ct. at

2547. In additional to injunctive and declaratory relief,

the plaintiffs in Dukes also sought an award of

backpay. Jd. It was undisputed in Dukes that pay and

promotion decisions were generally committed to

“local managers’ broad discretion, which is exercised

‘in a largely subjective manner’ ” with only limited

corporate oversight. Jd. The plaintiffs in Dukes never

alleged that Wal-Mart had an express corporate

policy against the advancement of women, but rather

claimed that their local managers’ discretion over pay

and promotions was exercised disproportionately in

favor of men, leading to an unlawful disparate impact

on female employees. Jd. at 2548. As described by the

Court:

Importantly for our purposes, respondents claim

that the discrimination to which they have been

subjected is common to all Wal-Mart's female

employees. The basic theory of their case is that a

strong and uniform “corporate culture” permits

bias against women to infect, perhaps

subconsciously, the discretionary decisionmaking

of each one of Wal-Mart’s thousands of

managers—thereby making every woman at the

company the victim of one common discriminatory

practice.

Id.

34a

As evidence in support of the “commonality”

requirement of Rule 23(aX2), the plaintiffs in Dukes

relied primarily on three forms of proof. Jd. at 2549.

First, plaintiffs provided statistical evidence about

pay and promotion disparities between men and

women at Wal-Mart. Jd. Second, plaintiffs produced

anecdotal reports of discrimination from about 120 of

Wal-Mart’s female employees. Jd. Third, plaintiffs

relied on the testimony of a sociologist who conducted

a “social framework analysis” of Wal-Mart’s “culture”

and personne! practices, and concluded that the

company was “vulnerable” to gender discrimination.

Id.

Noting that the “crux of this case is commonality,”

the court noted:

Commonality requires the plaintiff to demon-

strate that the class members “have suffered the

same injury,” Falcon, supra, at 157, 102 S.Ct.

2364. This does not mean merely that they have

all suffered a violation of the same provision of

law. Title VII, for example, can be violated in

many ways—by intentional discrimination, or by

hiring and promotion criteria that result in

disparate impact, and by the use of these practices

on the part of many different superiors in a

single company. Quite obviously, the mere claim

by employees of the same company that they have

suffered a Title VII injury, or even a disparate-

impact Title VII injury, gives no cause to

believe that all their claims can productively be

litigated at once. Their claims must depend upon

a common contention—for example, the assertion

of discriminatory bias on the part of the same

supervisor. That common contention, moreover,

must be of such a nature that it is capable of

35a

classwide resolution—which means that determi-

nation of its truth or falsity will resolve an issue

that is central to the validity of each one of the

claims in one stroke.

Id. at 2551.

As Dukes was a Title VII case, the focus of the

inquiry in resolving each individual’s claim was “the

reason for [the] particular employment decision.” Id.

at 2552 (quoting Cooper v. Federal Reserve Bank of

Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 81

L.Ed.2d 718 (1984)). As such, Dukes involved “literally

millions of employment decisions” and “[|w]ithout some

glue holding the alleged reasons for al] those decisions

together, it [would] be impossible to say that

examination of all the class members’ claims for relief

will produce a common answer to the crucial question

why was I disfavored.” Id.

Similar to Dukes, the Supreme Court in General

Telephone Co. v. Falcon, 457 U.S. 147 (1982) rejected

a class comprising all employees wrongfully denied

promotions and all applicants wrongly denied jobs

for lack of commonality and typicality. Specifically,

the Court held that one named plaintiff's experience

of discrimination was insufficient to infer that

“discriminatory treatment is typical of {the employer’s

employment} practices.” Jd. at 158. The Court in

Falcon suggested two ways in which commonality and

typicality may have been shown. First, if the employer

“used a biased testing procedure to evaluate both

applicants for employment and incumbent employees,

a class action on behalf of every applicant or employee

who might have been prejudiced by the test clearly

would satisfy the commonality and _typicality

requirements of Rule 23(a).” Jd. at 159, n. 15. Second,

“(slignificant proof that an employer operated under a

36a

general policy of discrimination conceivably could

justify a class of both applicants and employees if the

discrimination manifested itself in hiring and

promotion practices in the same general fashion, such

as through entirely subjective decisionmaking

processes.” Jd.

Noting the absence of “significant proof” that Wal-

Mart was operating under a “general policy of

discrimination,” and further noting that Wal-Mart’s

announced policy actually forbids sex discrimination,

the Court in Dukes found that the only policy

established by plaintiffs’ evidence was Wal-Mart's

“policy” of allowing discretion by local supervisors over

employment matters which is “just the opposite of a

uniform employment practice that would provide the

commonality needed for a class action.” Dukes, 131

S.Ct. at 2554.

([D)emonstrating the invalidity of one manager’s

use of discretion will do nothing to demonstrate

the invalidity of another’s. A party seeking to

certify a nationwide class will be unable to show

that all the employees’ Title VII claims will in fact

depend on the answers to common questions.

[Plaintiffs] have not identified a common mode of

exercising discretion that pervaded the entire

company... In a company of Wal-Mart’s size and

geographical scope, it is quite unbelievable that

all managers would exercise their discretion in a

common way without some common direction.

[Plaintiffs] attempt to make that showing by

means of statistical and anecdotal evidence, but

their evidence falls well short.

Id. at 2554-55.

37a

With respect to the Rule 23 class at issue, this court

disagrees with the defendant’s contention that Judge

Bennett certified a Rule 23 class based on what he

found to be a single common question of law: “whether

Tyson’s gang time compensation system violates the

law.” In addition to the common legal question

identified by Judge Bennett, which this court has

interpreted not to be a challenge to the legality of the

“gang time” system per se, but rather whether the

defendant has paid its production workers for al!

“work” performed prior and subsequent to “gang time,”

particularly the time spent donning, doffing, and

cleaning PPE, Judge Bennett also noted numerous

factual similarities among the employees paid on a

“gang time” basis. Unlike Dukes, there is a common

answer available to this question because, unlike

Dukes, the instant case involves a company wide

compensation policy that is applied uniformly

throughout defendant’s entire Storm Lake facility. If

it is determined that the donning and doffing and/or

sanitizing of the PPE at issue constitutes “work” for

which plaintiffs are entitled to compensation, then

such a determination is applicable to all such situated

plaintiffs. The instant matter is not like Dukes where

each alleged Title VII violation involved an inquiry

into the individual decisionmaker’s subjective thought

process. Moreover, the court does not see the same

evidentiary defects in the instant case as those

addressed in Dukes, as the instant case is supportable

by class-wide proof.

Finally, the court finds inapplicable and/or distin-

guishable the analysis/holding of Dukes as it pertains

to plaintiffs’ claims for backpay. The class in Dukes

was certified pursuant to Rule 23(b\(2), which “allows

class treatment when ‘the party opposing the class has

acted or refused to act on grounds that apply generally

38a

to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate

respecting the class as a whole.’ ” Dukes, 131 S.Ct. at

2257 (quoting Rule 23(bX2)). Rather, Judge Bennett

found that the class was properly certified under Rule

23(b\3). As noted by the Court in Dukes, “We think it

clear that individualized monetary claims belong in

Rule 23(bX3).” Jd. at 2558.

Upon the foregoing,

IT IS ORDERED that defendant’s motion for

decertification of Rule 23 class {dkt. 212} is DENIED.

39a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF LOWA

WESTERN DIVISION

No. C07-4009-MWB

PEG BOUAPHAKEO, ET AL.,

Plaintiffs,

TYSON Foops, INC.,

Defendant.

ORDER UNSEALING

MEMORANDUM OPINION AND

ORDER ON PLAINTIFFS’ MOTIONS

FOR COLLECTIVE ACTION AND

CLASS ACTION CERTIFICATION

On July 3, 2008, the court filed its memorandum

opinion and order on Plaintiffs’ motions for collective

action certification under the Fair Labor Standards

Act, and class action certification under Federal Rule

of Civil Procedure 23. Dkt. # 62. The parties previously

entered into a protective order to keep certain

information confidential throughout the litigation of

this case. Dkt. # 29. The parties also sealed their briefs

when arguing their positions relative to the collective

action and class action certification of Plaintiffs’

claims. As a result, the court filed its memorandum

40a

opinion and order on collective action and class action

certification under seal. Dkt. # 62.

After considering the confidentiality concerns

espoused by the parties in their protective order, the

court does not believe its memorandum opinion and

order needs to be sealed. Therefore, the court orders

its memorandum opinion and order, Dkt. # 62, to be

unsealed.

IT IS SO ORDERED.

DATED this 14th day of July, 2008.

/s/ Mark W. Bennett

MARK W. BENNETT

U.S. DISTRICT COURT JUDGE

NORTHERN DISTRICT OF IOWA

4la

APPENDIX E

UNITED STATES DISTRICT COURT,

N.D. IOWA,

WESTERN DIVISION.

No. C 07-4009-MWB.

July 3, 2008.

PEG BOUAPHAKEO, JAVIER FRAYRE, JOSE A.

GARCIA, MARIO MARTINEZ, JESUS A. MONTES,

AND HERIBENTO RENTERIA,'

Plaintiffs,

Vv.

TYSON Foops, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

REGARDING PLAINTIFFS’ MOTIONS FOR

CONDITIONAL CERTIFICATION AS A

COLLECTIVE ACTION UNDER THE FSLA AND

‘ Previously, this case was captioned as “Dale Sharp, et al. v.

Tyson Foods, Inc.” to account for ten named plaintiffs. Six of these

plaintiffs (those named in the present caption) worked at Tyson's

Storm Lake, lowa, facility. The remaining four plaintiffs (Sharp,

Brian Fryar, Courtney Knutson, and Mike Sturtevant) worked at

Tyson’s Denison, lowa, facility. The Denison, lowa, plaintiffs are

no longer involved in this lawsuit as a result of the parties

voluntarily dismissing the claims against Tyson's Denison

facility. Therefore, the court has restyled the caption to include

only those named plaintiffs from Tyson’s Storm Lake facility.

42a

CERTIFICATION AS A CLASS ACTION UNDER

FEDERAL RULE OF CIVIL PROCEDURE 23

[TO BE FILED UNDER SEAL}

MARK W. BENNETT, District Judge.

ITT.

TABLE OF CONTENTS

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FACTUAL BACKGROUND .....................

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2. Conditional certification......................

b. Substantive analysis under the

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settings of plaintiffs ..................

ii. Defenses available to Tyson.....

iii. Fairness, manageability, and

procedural considerations ........

43a

C. Conditionally Certified Collective Action

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Plaintiff employees request the court to allow them

to proceed as representatives of a group of employees

against Defendant for its allegedly illegal wage

payment practices. Several issues must be addressed

in considering Plaintiffs’ request, but one question

stands out: Does Defendant’s “gang time”

compensation system allow Plaintiff employees to

gang up on Defendants?

I. INTRODUCTION

Plaintiffs Dale Sharp, et al., filed a “Class Action

and Representative Action Complaint” againsi

Defendant Tyson Foods, Inc., on February 6, 2007.

Dkt. # 2. Plaintiffs bring two claims against Tyson: (1)

a class action under Federal Rule of Civil Procedure

23 for Tyson’s alleged violations of the Iowa Wage

44a

Payment Collection Law (IWPCL), and (2) a collective

action under 29 U.S.C. § 216(b) for Tyson’s alleged

violations under the Fair Labor Standards Act

(FLSA). Plaintiffs state the court has subject matter

jurisdiction over their IWPCL claim under 28 U.S.C.

§ 1332(d) (diversity jurisdiction for class actions), and

subject matter jurisdiction over their FLSA claim

under 28 U.S.C. § 1331 (federal question jurisdiction).

Tyson filed its answer, raising many affirmative

defenses, on March 28, 2007. Dkt. # 15.

On July 6, 2007, the court approved a scheduling

order and discovery plan. Dkt. # 23. The court limited

discovery to class certification issues, and set

deadlines for the parties’ briefs related to class action

and collective action certification. On November 27,

2007, the court approved the parties’ protective order

to keep certain information confidential during the

parties’ discovery and litigation of this lawsuit. Dkt.

# 29. On February 4, 2008, Plaintiffs filed a renewed

sealed motion for the court to conditionally certify its

FLSA claim as a collective action under the FLSA.

Dkt. # 34. On the same date, Plaintiffs also filed a

renewed sealed motion for the court to certify its

IWPCL claim as a class action under Rule 23. Dkt.

# 35. Tyson responded with its resistance to Plaintiffs’

motion for class certification on March 4, 2008, Dkt.

# 45, and with its resistance to Plaintiffs’ motion for

conditional certification on March 5, 2008, Dkt. # 49.

Plaintiffs then filed their replies on March 26, 2008.

Dkt. # 59. No party has requested oral arguments on

the class certification and conditional collective action

certification issues. As a result, the matter is fully

submitted. The trial date has not yet been set, but a

telephonic status conference is set for July 9, 2008,

before Chief Magistrate Judge Paul A. Zoss. Dkt. # 61.

45a

Il. FACTUAL BACKGROUND

There were originally ten named plaintiffs in this

action, but only six remain due to the dismissal of

all claims involving Tyson’s Denison, lowa, facility.

Dkt. # 40. The six remaining plaintiffs are current

or former production employees who work or who have

worked for Tyson’s Storm Lake, Iowa, pork processing

facility. Tyson’s facility in Storm Lake receives,

slaughters, and processes hogs into various cuts of

pork that are then packaged and shipped to other

Tyson facilities or directly to customers. The Storm

Lake facility has approximately 1,600 hourly

production and support employees that work on

three shifts. These employees work in six main

departments: the Kill, Cut, Retrim, Materials

Handling/Load Out, Rendering, and Maintenance

departments. Most of the hourly employees work in

the Kill, Cut, and Retrim departments. None of the six

remaining named plaintiffs have worked in the

Rendering, Load Out, or Maintenance departments at

Tyson.

All hourly production employees are required to

clock in and out before and after their shift. Clocking

in and out is generally only for attendance purposes.

Clocking in and out only affects an employee's paid

time if the employee clocks in late (in which case the

employee’s pay is reduced) or comes in early or stays

late to perform set up and clean up work (in which case

the employee’s pay is increased). The employees in the

Kill, Cut, and Retrim departments are paid by “gang

time,” or the length of production in their department,

? Gang time is also sometimes called “line time,” “shift time,”

or “mastercard time.” Fox v. Tyson Foods, Inc., 519 F.3d 1298,

1302 (11th Cir.2008) (mastercard time); Salazar v. Agriprocessors,

Inc., 527 F.Supp.2d 873, 879 (N.D.lowa 2007) (line time);

46a

which is generally the time it takes for hogs to travel

on mechanized belts through the department. More

specifically, gang time begins when the first hog or

piece of pork “hits the floor” of the specific department,

and gang time ends when the last hog or piece of pork

“hits the floor” in that department. As a result, gang

time represents the amount of work each employee

performs while on the production line, and those

employees at the beginning of the production line start

and end a few minutes earlier than those employees at

the end of the production line. The employees in the

Rendering, Materials Handling/Load Out, and

Maintenance departments are not paid by gang time.

Instead, these employees are paid based on a pre-set

start time until a pre-set end time.

In addition, most hourly employees at Tyson are

given a “K code” value to compensate them for the

work they perform donning and doffing their Personal

Protective Equipment (PPE) before and after their

shift begins. PPE is the clothing Tyson provides

their employees and requires them to wear to perform

their jobs. Pnor to 2007, Tyson paid every employee

within certain departments an extra four minutes

to compensate them for the extra time they needed to

don and doff their PPE. In 2007, and as a result of the

United States Supreme Court decision in JBP, Inc. v.

Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288

(2005), Tyson changed its K code policy. Now, all

Tyson employees are given a K code value specific to

their positions to represent the extra time they need

to be compensated for donning and doffing their PPE.

Some are not given any K code value, but those that

Saunders v. John Morrell & Co., No. C88—-4143, 1991 WL 529542,

at *7 n. 2(N.D Iowa Dec. 24, 1991) (shift time).

47a

don and doff PPE are given a K code value somewhere

between four and seven minutes.

All hourly production employees are required to

wear certain PPE, but not all wear the same PPE.

Employees often wear PPE such as hard hats,

hairnets, beard nets (if applicable), rubber soled or

steel-toed boots, hearing protection, rubber or cotton

or kevlar or mesh gloves, company issued shirts and

pants (“whites”), frocks, belly guards, aprons, and arm

guards. In addition, most employees throughout the

plant use knives, and these employees are required to

wear additional clothing as added protection. Most

employees who use knives are required to dip their

knife and related equipment? in a sanitizing solution

before beginning production work. Likewise, when

leaving the department, the employee must perform

the same sanitation procedure. In addition, at the end

of their shift, these employees are required to rinse

their knives and related equipment at one of several

wash nozzles either in the production area or

immediately outside the production area at the wash

station. Employees who are required to wear a frock,

“whites,” hard hat, hairnet, beardnet, steel-toed boots,

and earplugs must have these items on before entering

the production area. All hourly employees are

assigned a locker in the main locker rooms off the

production hallway, which the employees use to store

their required and optional clothing items and

equipment. Hourly production employees receive one

fifteen min’ ‘e paid break and one thirty minute

unpaid meal period per shift. Employees do not have

’ Employees that use knives have scabbards to contain their

knives and steels to sharpen their knives. As of April 2007,

Tyson’s Storm Lake facility uses no-maintenance steels that do

not require sanding. [D. ex. 22!.

48a

to perform any washing or sanitizing during their

meal period.

III]. COMPATIBILITY OF FLSA AND IWPCL

CLAIMS

The specific circumstances of this case must be

made absolutely clear. Plaintiffs have two claims

against Tyson: a federal law FLSA claim, and a state

law IWPCL claim. The court has subject matter

jurisdiction over the federal law claim because it is

based on federal law. See 28 U.S.C. § 1331. The court

has subject matter jurisdiction over the state law

claim because the parties meet the requirements for

diversity jurisdiction under the Class Action Fairness

Act of 2005 (CAFA).‘ Plaintiffs ask the court to certify

their federal law claim as a “collective action” under

§ 216(b) of the FLSA. Plaintiffs also ask the court to

certify their state law claim as a “class action” under

Rule 23 of the Federal Rules of Civil Procedure.

Tyson argues Plaintiffs cannot bring both the FLSA

claim and the IWPCL claim in the same action because

the Plaintiffs’ FLSA claim preempts Plaintiffs’ IWPCL

claim in this case. Tyson additionally argues that

Plaintiffs’ IWPCL claim and request for class

certification under Rule 23 should be either denied,

dismissed, or limited because the class certification

procedure under Rule 23 is fundamentally opposed

to the collective action certification procedure under

* CAFA gives the district court original jurisdiction over civil

class actions where there are more than 100 class members, more

than $5,000,000 is in controversy, any member of the class is

diverse from any defendant, and the primary defendants are not

governmental entities. Class Action Fairness Act of 2005 (CAFA),

Pub.L. No. 109-2, § 4, 119 Stat. 4, 9 (2005) (codified at 28 U.S.C.

§ 1332(d 2), (5)).

49a

§ 216(b). Tyson’s arguments address the compatibility

of FLSA and state law claims, and they have been the

subject of many district court dockets recently. See,

e.g., Ellis v. Edward D. Jones & Co., L.P., 527

F.Supp.2d 439, 459 n. 19 (W.D.Pa.2007) (noting the

“recent phenomenon” of the “ ‘explosion’ of hybrid

lawsuits involving both state and FLSA claims”).

Unfortunately, however, circuit court opinions are

rare on the issues confronted in these circumstances,

and there is an overall paucity of decisions on the

subject in the Eighth Circuit. The court is, therefore,

navigating some relatively uncharted, or at least

rough, waters in addressing these arguments.’ The

court will first address the issue of preemption,

followed by Tyson’s arguments against dual

certification.

A. Preemption

The Supremacy Clause “states that the laws of the

United States made pursuant to the Constitution are

the ‘supreme Law of the Land.’ ” Wuebker v. Wilbur-

Ellis Co., 418 F.3d 883, 886 (8th Cir.2005) (quoting

U.S. Const., Art. VI, cl. 2). Whether federal law

preempts state law is a question of congressional

intent. Id. (“Congressional intent is the touchstone for

determining the preemptive effect of a statute.” (citing

English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct.

2270, 110 L.Ed.2d 65 (1990))). The United States

Supreme Court has identified a three-part “categorical

framework” to discern whether Congress meant to

° The waters are made rougher because the cases that address

the issues in this case are often unpublished. The court regrets

analyzing the issues with the help of authority not recommended

for publication. The court feels compelled, however, to address al]

the decisions in this area, whether published or not, because not

many decisions exist at all.

50a

preempt state law. Williamson v. Gen. Dynamics

Corp., 208 F.3d 1144, 1151-52 (9th Cir.2000).

According to this framework,

[clourts discern an intent to preempt state law

when Congress expressly forbids state regulation

(express preemption), when it creates a scheme of

federal regulation so pervasive that the only

reasonable inference is that it meant to displace

the states (field preemption), and when a law

enacted by it directly conflicts with state law

(conflict preemption).

Wuebker, 418 F.3d at 886 (citing English, 496 U.S. at

78-79, 110 S.Ct. 2270). Notably, the three categories

of preemption—express, field, and conflict—are not

“rigidly distinct.” English, 496 U.S. at 79 n. 5, 110

S.Ct. 2270.

In this case, and keeping in mind that the three

categories of preemption are somewhat related, the

only question is whether Plaintiffs’ IWPCL claim is

barred under a conflict preemption analysis. Express

and field preemption do not apply because Congress

did not specifically prohibit state regulation in this

area. See Anderson v. Sara Lee Corp., 508 F.3d 181,

192 n. 10 (4th Cir.2007) (addressing the similar

question of whether plaintiffs state law contract,

negligence, and fraud claims were preempted by the

FLSA, and finding “there is no question that express

preemption and field preemption are inapposite to

this dispute”); Williamson, 208 F.3d at 1151-52

(addressing the similar question of whether plaintiffs

common law fraud claim was preempted by the

FLSA, and focusing on whether conflict preemption

5la

applied).® In fact, the FLSA contains a savings clause

that allows states to enact their own laws in this

area. 29 U.S.C. § 218(a). Moreover, Tyson does not

specifically argue express or field preemption applies.

Instead, Tyson relies almost exclusively on the

recent Fourth Circuit Court of Appeals’s decision in

Anderson—which used a_ conflict preemption

analysis—for its argument that Plaintiffs’ IWPCL

claim is preempted by the FLSA.

Conflict preemption, also called implied preemption,

can occur in two ways: “when it is impossible for a

private party to comply with both state and federal

law, and when state law ‘stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.’ ” Wuebker, 418 F.3d at 887

(quoting Geier v. Am. Honda Motor Co., 529 U.S. 861,

873, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000)); see

Williamson, 208 F.3d at 1152 (noting the two types of

conflict preemption). Tyson does not argue that it is

impossible for Tyson to comply with both the FLSA

and the IWPCL, and the court is unaware of any

reason why dual compliance would not be possible.

Therefore, the relevant question in this case, as it was

in Anderson and Williamson, is whether the state law

claim “stands as an obstacle” to Congress’s objectives

in the FLSA. “In determining whether state law

‘stands as an obstacle’ to the full implementation of a

federal law, ‘it is not enough to say that the ultimate

goal of both federal and state law’ is the same.” Forest

Park II v. Hadley, 336 F.3d 724, 733 (Stk Cir.2003)

(quoting Int'l Paper Co. v. Ouellette, 479 U.S. 481, 494,

® The Fourth Circuit Court of Appeals’s decision in Anderson

in 2007, and the Ninth Circuit Court of Appeals’s decision in

Williamson in 2000, appear to be the only two recent federal

appellate decisions that substantively address FLSA preemption.

52a

107 S.Ct. 805, 93 L.Ed.2d 883 (1987)). State law is

“preempted if it interferes with the methods by which

the federal statute was designed to reach that goal.”

Id. “Thus, ‘[wlhere a state statute conflicts with, or

frustrates, federal law, the former must give way.’ ” Jd.

(quoting CSX Transp., Inc. v. Easterwood, 507 U.S.

658, 663, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)).

In Anderson, the Fourth Circuit Court of Appeals

held that “Congress prescribed exclusive remedies in

the FLSA for violations of its mandates” and,

therefore, the “Class Members’ FLSA-based contract,

negligence, and fraud claims are precluded under a

theory of obstacle preemption.” 508 F.3d at 194. Most

important to the court’s holding was the “[c]rucial|[ ]”

fact that “the Class Members’ state claims all

depended on establishing that [the defendant] violated

the FLSA,” and that “[wjithout doubt, these state

claims essentially require the same proof as claims

asserted under the FLSA itself.” Jd. at 193. The court

further stated:

The Class Members do not contend, however, that

any North Carolina law entitles them to unpaid

wages. Rather, as discussed above, they rely on

the FLSA for their rights, and they invoke state

law only as the source of remedies for the alleged

FLSA violations. Importantly, the FLSA does not

explicitly authorize states to create alternative

remedies for FLSA violations.

Id. The court also noted that its holding was

“consistent with the rulings of several district courts

deeming state claims to be preempted by the FLSA

where those claims have merely duplicated FLSA

claims.” Id. at 194 (citing Choimbol v. Fairfield

Resorts, Inc., No. 2:05cv463, 2006 WL 2631791, at *4—

6 (E.D.Va. Sept. 11, 2006); Moeck v. Gray Supply

53a

Corp., No. 03-1950, 2006 WL 42368, at *2 (D.N.J. Jan.

6, 2006); Chen v. St. Beat Sportswear, Inc., 364

F.Supp.2d 269, 292-93 (E.D.N.Y.2005); Morrow v.

Green Tree Servicing, L.L.C., 360 F.Supp.2d 1246,

1252-53 (M.D.Ala.2005); Sorenson v. CHT Corp., No.

03 C 160&%L), 2004 WL 442638, at *5—7 (N.D.IIL.

Mar. 9, 2004); Johnston v. Davis Sec., Inc., 217

F.Supp.2d 1224, 1227-28 (D.Utah 2002); Alexander v.

Vesta Ins. Group, Inc., 147 F.Supp.2d 1223, 1240-41

(N.D.Ala.2001)).

The Ninth Circuit Court of Appeals came to a

different conclusion in Williamson. In Williamson,

the court addressed whether plaintiffs’ common law

fraud claims were preempted by the FLSA. 208 F.3d

at 1152-54. The court stated conflict (obstacle)

preemption would apply if two conditions were met:

“(1) the anti-retaliation provision [in the FLSA] covers

{plaintiffs’ common law fraud claims] and (2) the FLSA

is the exclusive remedy for claims duplicated by or

equivalent of rights covered by the FLSA.” Jd. at 1152.

Regarding the first condition, the court held that the

FLSA anti-retaliation provision did not apply to

defendant’s allegedly fraudulent conduct. Jd. In other

words, plaintiffs’ common law fraud claim provided

the sole right and remedy for defendants’ alleged bad

acts. Jd. Regarding the second condition, the court

found the FLSA did not provide exclusive remedies for

violating its provisions. The court initially noted that

the FLSA’s savings clause at 29 U.S.C. § 218(a), which

allows states to enact stricter wage, hour, and child

labor provisions, “indicates that [the FLSA] does not

provide an exclusive remedy.” Williamson, 208 F.3d at

1151. Then the court distinguished a pair of cases,

Kendall v. City of Chesapeake, 174 F.3d 437 (4th

Cir.1999), and Lerwill v. Inflight Motion Pictures, 343

F.Supp. 1027 (N.D.Cal.1972), to at least raise doubt

54a

that the FLSA provides the exclusive remedy for

violating its provisions.’ Both of these cases suggested

or stated that the FLSA contained the exclusive

remedies for its own violations. Kendall, 174 F.3d at

443 (“[I]n the FLSA Congress manifested a desire to

exclusively define the private remedies available to

redress violations of statute’s terms.”); Lerwill, 343

F.Supp. at 1029 (“The only conclusion possible, then,

is that the statutory remedy is the sole remedy

available to the employee for enforcement of whatever

rights he may have under the FLSA.”). Regarding

Kendall, the Williamson court noted that Kendall was

not a case about preemption, but about “whether

another federal statute (Section 1983) can support a

claim that clearly falls under the FLSA.” Williamson,

208 F.3d at 1153. Regarding Lerwil/, the Ninth Circuit

Court of Appeals noted it was also “dubious authority”

because it did not discuss preemption at all, and

because “[i]t was about a plaintiff's effort to get a more

favorable remedy.” Jd. Thus, in the end, the court

found neither of its obstacle preemption conditions

satisfied, and therefore held that the FLSA did not

preempt plaintiffs’ common law fraud claim. /d.

Whether this court should ultimately follow the

persuasive authority in Anderson or Williamson—

there is no mandatory authority on point—requires

the court to review the applicable state law in this

case, the IWPCL, in light of the arguments made for

and against preemption. The IWPCL is a “remedial

” Interestingly, the Anderson court relied on Kendall! for its

holding that the FLSA provided the exclusive remedy for FLSA

violations. Anderson, 508 F.3d at 194 (“Whether the FLSA

provides exclusive remedies for the enforcement of its own

provisions is a question that need not occupy us for long, because

we already answered it {affirmatively] in Kendall.”).

55a

statute,” and “meant to facilitate the public policy of

allowing employees to collect wages owed to them by

their employers.” Hornby v. State, 559 N.W.2d 23, 26

(lowa 1997). Section 91A.3 gives employees the right

to receive their wages. It states, “An employer shall

pay all wages due its employees. ” Towa Code §

91A.3. The IWPCL also gives employees the nght to

receive their “wages due” in “at least monthly,

semimonthly, or biweekly installments on regular

paydays,” id., and provides suspended or terminated

employees with the right to receive their “wages

earned” by “the next regular payday,” id. § 91A.4. The

FLSA, of course, provides similar rights, like the

rights to a minimum wage and overtime pay. 29 U.S.C.

§§ 206, 207. A big difference between the FLSA and

IWPCL is that the IWPCL is more concerned with

when or how wages are paid. See Runyon v. Kubota

Tractor Corp., 653 N.W.2d 582, 585 (lowa 2002) (“We

have observed that the purpose of chapter 91A is to

‘facilitate collection of wages by employees.’ ” (quoting

Condon Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d

587, 593 (Iowa 1999))). Nevertheless, both statutes

require employers to pay certain wages to their

employees. See Stahi v. Big Lots Stores, Inc., No. 06—-

CV-1026—-LRR, 2007 WL 3376707, at *5 (N.D Iowa

Nov. 7, 2007) (“The purpose of the FLSA and the

IWPCL is to ‘facilitate the collection of wages owed to

employees.’ ” (quoting Phipps v. IASD Health Servs.

Corp., 558 N.W.2d 198, 201 (lowa 1997))). While the

FLSA prescribes exactly what kind of wages must be

paid, see 29 U.S.C. §§ 206, 207, the IWPCL simply

requires that an employer “pay all wages due its

employees,” Iowa Code § 91A.3. Thus, the FLSA may

be used to establish an employee's right to a certain

amount of wages under the IWPCL and an employer's

56a

violation of the IWPCL for not paying “all wages due

its employees.” Jd.

And that appears to be exactly the case here.

Plaintiffs complaint alleges that Tyson is obligated to

pay all wages to its employees under the IWPCL, but

Plaintiffs never state what law or right—other than

those rights conferred by the FLSA—they rely on that

establishes they are entitled to the wages they seek.

In addition, despite Tyson's argument that Plaintiffs’

IWPCL claim is based on a violation of the FLSA,*

Plaintiffs do not assert their right to wages due under

the IWPCL is conferred by anything other than the

FLSA. In such a case, it is perhaps obvious that

Plaintiffs rely on the FLSA to establish a violation

under the IWPCL for Tyson's failure to “pay all wages

due its employees.” Jd. This is not surprising, as this

court has recognized this situation before: The

“violation of the FLSA is precisely the basis for the

wages purportedly owed under the IWPCL in this

case. Thus, the IWPCL claim is _ essentially

‘duplicative’ of the FLSA claim in this action.”

Bartleson v. Winnebago Indust., Inc., 219 F.R.D. 629,

634 (N.D.Iowa 2003) (citations omitted).°

* Tyson specifically argues that “the IWPCL does not provide

Plaintiffs with any substantive rights, but simply provides a

mechanism for plaintiffs to recover wages owed but unpaid,” and

that “Plaintiffs’ claims under the IWPCL must rely on the FLSA

to establish the underlying nght to compensation allegedly owed

by defendant within the meaning of the IWPCL.” Dkt. # 45.

° A violation of the IWPCL, however, is not always dependent

upon establishing a violation of the FLSA. The specific amount of

“wages due” to employees under the IWPCL must be provided by

something other than the IWPCL. And as a general matter, that

amount does not have to be provided by the FLSA. The wages due

under the IWPCL could be based on any number of legal bases,

such as an employment agreement or Iowa’s minimum wage law.

57a

As a result, this case appears similar to the case in

Anderson. Plaintiffs state law claims in Anderson

depended on violations of the FLSA, as they do here.

508 F.3d at 193-94. In Williamson, however, the

plaintiffs common law fraud claim did not depend

on any violation of the FLSA—the FLSA did not

even provide a basis for recovery for the claim

asserted by the plaintiff. 208 F.3d at 1152-53.

Nevertheless, the court does not believe such

“duplication” means Plaintiffs’ IWPCL claim is

preempted by their FLSA claim because the court,

like the court in Williamson, does not believe the

FLSA provides the exclusive remedy for its violations.

Thus, the court disagrees with the Fourth Circuit

Court of Appeals’s determination that the FLSA

provides otherwise. Anderson, 508 F.3d at 194; see

Roman v. Maietta Const., Inc., 147 F.3d 71, 76 (ist

Cir.1998) (“As the trial court noted, ‘the FLSA is the

exclusive remedy for enforcement of mghts created

under the FLSA.’ ”). As the court in Williamson

determined, “the ‘savings clause’ indicates that [the

See lowa Code § 91D.1 (requiring a minimum wage of “$7.25 as

of January 1, 2008"). Because the IWPCL may rely on a legal

basis for wages that is stricter or different than the FLSA. the

IWPCL is not generally duplicative of the FLSA. Cf. Avery v. City

of Talladega, 24 F.3d 1337, 1348 (11th Cir.1994) (“[T]he district

court erred in holding that the FLSA pre-empts a state law

contractual claim that seeks to recover wages for time that is

compensable under the contract though not under the FLSA.”).

Moreover, the [WPCL could apply in different circumstances

than the FLSA, because the FLSA covers employers and

employees who are not necessarily covered under the IWPCL. See

Dietrich v. Liberty Square, L.L.C., No. C 05—-2037-EJM, 2006 WL

1876989, at *1-2 (N.D.lowa July 6, 2006) (finding that the

definitions of employer and employee are different under the

FLSA and [WPCL).

58a

FLSA) does not provide an exclusive remedy.” 208

F.3d at 1151. The savings clause provides:

No provision of this chapter or of any order

thereunder shall excuse noncompliance with any

Federal or State law or municipal ordinance

establishing a minimum wage higher than the

minimum wage established under this chapter or

a Maximum work week lower than the maximum

work week established under this chapter. .

29 U.S.C. § 218 a). Under the savings clause, a state

may clearly provide greater benefits, or rights, than

the FLSA. While the savings clause does not

specifically reference remedies, the court believes the

savings clause indicates that Congress did not

foreclose states from providing alternative remedies.

In addition, while the Anderson court focused on the

fact that the FLSA does not “explicitly authorize states

to create alternative remedies for FLSA violations,”

508 F.3d at 193, neither does the FLSA explicitly

forbid states from doing so. In light of the savings

clause, the court thinks the better conclusion is that

the FLSA does not provide the exclusive remedy for

violations of its mandates.”

almost identical to the remedies available under the FLSA. See

Stahl v. Big Lots Stores, Inc., No. 06-CV-1026—LRR, 2007 WL

3376707 (N.D.Iowa Nov. 7, 2007) (comparing the remedies

available under the IWPCL and the FLSA). Under t

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