Amicus Curiae Brief — Tyson Foods, Inc. v. Bouaphakeo ex rel. Situated, 135 S. Ct. 2806 (2015) (No. 14-1146)

No. 14-1146

IN THE

Supreme Court of the Hnited States

TYSON Foops, INC.,

Petitioner,

Vv.

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

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

Richard A. Samp

(Counsel of Record)

Cory L. Andrews

Washington Legal Foundation

2009 Massachusetts Ave.. NW

Washington, DC 20036

202-588-0302

rsamp@wlf org

Date: April 20, 2015

QUESTIONS PRESENTED

1. Whether differences among individual class

members may be ignored and a class 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 everage observed in a sample.

2. 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 includes hundreds of members who

were not injured and have no legal right to any

damages.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTERESTS OF AMICUS CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

REASONS FOR GRANTING THE PETITION

8

CLASS CERTIFICATION IS IMPROPER

WHERE THE ONLY COMMON ISSUE

TYING TOGETHER DISPARATE CLASS

MEMBERS IS THE HYPOTHESIZED

DESCRIPTION OF AN “AVERAGE”

CLASS MEMBER

A. The Class-Wide Issue that Served

as the Basis for Class Certification

Focused on a Hypothetical

“Average” Employee.. ..

B. The Eighth Circuit's Class

Certification Decision Cannot Be

Squared With Wal-Mart and

Conflicts with a Post-Wal-Mart

Decision from the Seventh Circuit

Page

10

12

lV

Page

C. Review Is Warranted Because the

Assumption that Every Employee's

Claim Is Identical to that of the

“Average” Employee Is Unfair to

Absent Class Members ...... 16

Il. THECOURT SHOULD GRANT REVIEW

TO CLARIFY THAT ARTICLE III's

INJURY-IN-FACT REQUIREMENT

APPLIES TO ALL MEMBERS OF A

CERTIFIED CLASS .. ce ancds b0 Oe

circa oa ¢e-se +6 cos

v

TABLE OF AUTHORITIES

Page(s)

Cases:

Amchem Prods., Inc. v. Windsor,

521 U.S.591 (1997) .. ... ea

Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 546 (1946) .. ... 2... WL... 6, 14

Ariz. Christian Sch. Tuition Ore. U. . Winn.

131S. Ct. 1436(2011) .... .. 21

BP Exploration & Prod. Inc. v. Lake Eugenie

Land & Develop., Inc., 135 S. Ct. 754 (2014) ... 23

Califano v. Yamasaki,

442 U.S.682(1979) .. .. ... .. .. ., 8

Carpenter Co. v. Ace Foam, Inc.

135 S. Ct. 1493 (2015)... ... 1... so 66

Clapper v. Amnesty Intl USA,

133 S. Ct. 1138(2013) .. .. ... - l

Comcast Corp. v. Behrend,

133 S. Ct. 1426 (2013) .. oe os + ae

Denney v. Deutsche Bank AG,

442 F.3d 253 (2d Cir. 2006) .. ... .. ia soe

DG ex rel. Stricklin v. Devaughn,

594 F.3d 1188 (10th Cir. 2010) ... .. ‘2 22

Espenscheid v. DirectSat USA, LLC,

705 F.3d 770 (7th Cir. 2013) ... .. 14,15, 16

First Am. Fin. Corp. v. Edwards,

132 S. Ct. 2536 (2012) (percuriam).. .. .. 23

Hamdan v. Rumsfeld,

548 U.S. 557 (2006)... ... l

In re Bridgestone / Firestone, Inc. Tires Prods.

Liab. Litig., 288 F.3d 1012 (7th Cir. 2002),

cert. denied, 537 U.S. 1105 (2003) .. .. .. 24

In re Rail Freight Fuel Surcharge Antitrust Litig.,

725 F.3d 244 (D.C. Cir. 2013) ... ... .. ..2)2

Page(s)

Kohen v. Pac. Inv. Mgmt. Co.,

571 F.3d 672 (7th Cir. 2009)... .... ... ... 22

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

148 F.3d 283 (3d Cir. 1998) .. .... .. .. .22

Lujan v. Defenders of Wildlife,

504 U.S. 488 (2009) - ot ate a Sauk

Mazza v. Am. Honda Motor Co.,

666 F.3d 581 (9th Cir.2012) .... .. a ne

McCabe v. Atchison, T. & S.F.R. Co..,

I a .. 24

Mut. First Fed. Credit Union v. Charvat,

RRS I eg

Philip Morris USA Inc. v. Scott,

Sa ae ee .. 20

Phillips Petroleum Co. v. Shutts,

a a ea . 18

Schlesinger vu. Reservists Comm. to Stop the War,

CCG ou G5 bee Sas ane. eae ue

Spokeo, Inc. v. Robins,

No. 13-1339 (U.S., filed May 1,2014) .. .. 23

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) ... .. ES BME eR op

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) .. .... ..... eon

Wal-Mart Stores, Inc. v. Dukes,

1318S. Ct. 2541 (2011) _—_.... cov ind .. passim

Warth v. Seldin,

EB ee

Whitmore v. Arkansas,

I = ee! oe eae 18

Page(s)

Statutes and Rules:

U.S. Const., Art. III - 1, 8, 9, 18, 19, 22, 23, 24

U.S. Const., Art. IT], §2.. ... ~ es ae Cee

Fair Labor Standards Act (FLSA),

29U.S.C.§ 20letseq ...... 1, 2, 3, 4, 5, 14, 15

Rules Enabling Act, 28 U.S.C. § 2072(6) .. 8, 13, 22

lowa Wage Payment Collection Law (IWPCL),

Iowa Code 91A.letseq. ... .. .. .. 2,3,4

Fed.R.CivP.23 ..........- £42+1,8, 13, 20, 24

Fed.R.Civ.P.2SaX2) .. ... «.. «.. os ee

PURO nw's wen wee oe 02 00 OO

i fh 06 ee S|

Fed.R.Civ.P. 82... .. eee ee ee 22

Miscellaneous:

Theane Evangelis & Bradley J. Hamburger,

Article III Standing and Absent Class

Members, 64 EMORY L.J. 383 (2014) ae

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTERESTS OF AMICUS CURIAE

Washington Legal Foundation (WLF) is a non-

profit public interest law firm and policy center with

supporters in all 50 states.’ WLF devotes a substantial

portion of its resources to defending free enterprise,

individual rights, a limited and accountable

government, and the rule of law.

WLF has frequently appeared as amicus curiae

in this and other federal courts to express its view that

federal courts should certify cases neither as class

actions under Rule 23 of the Federal Rules of Civil

Procedure, nor as collective actions under the Fair

Labor Standards Act (FLSA), unless the plaintiffs can

demonstrate that they have satisfied each of the

requirements set forth in Rule 23 and the FLSA. See,

e.g., Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013);

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).

WLF has also repeatedly urged the judiciary toconfine

itself to deciding only true “cases or controversies”

under Article III of the U.S. Constitution. See, e.g.,

Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013);

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

' Pursuant to Supreme Court Rule 37.6, WLF states that

no counsel for a party authored this brief in whole or in part; and

that no person or entity, other than WLF and its counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief. More than 10 days prior to the due date,

counsel for WLF provided counsel for Respondents with notice of

its intent to file. All parties have consented to the filing: letters of

consent have been lodged with the Court.

2

WLIF is concerned that the decision below, by

endorsing class certification based on estimates

regarding the number of overtime hours a hypothetical

“average” employee might have worked, deprives a

defendant in a class or collective action of the right to

litigate its statutory defenses to individual claims.

Permitting class or collective claims to proceed in this

manner is also unfair to those absent class members

who worked more overtime hours than the “average”

employee; under the appeals court's trial-by-formula

approach, they may end up being undercompensated or

even being classified as uninjured despite possessing

evidence that they were not fully compensated for their

overtime work.

WLEF also believes the Court should grant review

to ensure that Article III’s threshold standing

requirement applies with equal force to all class

members. The Eighth Circuit erred as a matter of law

by affirming certification of a class that created

liability to uninjured plaintiffs, contravening the

injury-in-fact requirement of Article III.

STATEMENT OF THE CASE

Respondents are employees of Petitioner Tyson

Foods, Inc. at Tyson’s meat-processing facility in Storm

Lake, lowa. They allege that Tyson violated the Fair

Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq..,

and the nearly identical lowa Wage Payment Collection

Law (IWPCL), lowa Code 91A.1 et seq., by failing to

fully compensate them (i.e., failing to pay time-and-a-

half) for all hours worked in excess of 40 hours per

week.

3

In calculating compensable working time for its

Storm Lake employees, Tyson includes all hours when

employees are at their work stations and the

production line is moving. Tyson also pays employees

for the time it estimates they require to perform other

work-related duties, including the donning and doffing

of personal protection equipment (PPE). Respondents’

lawsuit contends that those estimates are too low, that

many employees require more than the estimated time

to complete their donning and doffing. Respondents

contend that they are entitled to additional overtime

pay whenever the extra required work is performed

during a week in which an employee has already

worked 40 hours.”

It is undisputed that the quantity of PPE worn

at the Storm Lake facility varies considerably from

worker to worker, and thus that the time required to

don and doff PPE also varies considerably. Tyson has

adopted several measures designed to ensure that

employees are fully compensated for their donning and

doffing time as well as the time spent walking to their

work locations. In particular, throughout the class

period, Tyson daily paid from four to eight minutes of

“K-Code time” to most class members to compensate for

donning/doffing-related activities. Also, employees

assigned to come in early to set up or to stay late to

tear down remained “on the clock” during those

assignments, and they had ample opportunity during

* Storm Lake employees are paid well in excess of the

minimum wage. Thus, Resnondents do not claim that Tyson's

alleged failure to compensate them for all work time constituted a

violation of the minimum-wage provisions of the FLSA and the

IWPCL.

4

that compensated time period to complete all

donning/doffing, cleaning, and walking activities.

Depending on their work assignments, some employees

were able to don and doff PPE during the regular work

shift, and thus the time they spent on those activities

was already included in their compensated time.

The considerable variation in time outside the

regular work shift devoted by employees to donning

and doffing would seem at first blush to preclude

certification of a Rule 23(b)(3) class for Respondents’

IWPCLclaims (and of a collective action for their FLSA

claims). Rule 23(b)(3) precludes certification unless

“the questions of law or fact common to class members

predominate over any questions affecting only

individual members.” The factual issues key to

determining liability and damages—whether each

employee spent more hours performing donning/doffing

activity than the hours for which he was compensated

and whether the employee worked more than 40 hours

in any such week—would seem to require an

individual-by-individual factual determination.

Respondents sought to avoid that problem by

computing an average amount of time spent by each

employee devoted to donning, doffing, and walking

activity, based on a time study conducted by Dr.

Kenneth Mericle. He observed a small sample of Tyson

employees performing what he deemed to constitute

donning and doffing activity. Extrapolating that

observation to all employees, he concluded that the

average class member spent between 18 and 21.25

minutes each work day (depending on the department

in which he worked) on donning, doffing, and walking

5

activity.’ Another of Respondents’ experts, Dr. Lies]

Fox, examined Tyson's time records to see which

employees had worked overtime and—based on Dr.

Mericle’s conclusions regarding the “average”

employee— calculated what she believed was the

additional overtime compensation owed by Tyson to the

class as a whole.

In the district court, Tyson repeatedly voiced its

objection to class certification, arguing that any effort

to prove class-wide liability on the basis of Dr.

Mericle’s time study amounted to “trial by formula”

and prevented it from litigating its defenses to

individual claims. The district court nonetheless

certified a Rule 23 class that now contains 3,334

members, and conditionally certified an FLSA

collective action that now contains 444 members. It

also denied Tyson's repeated efforts to decertify. The

jury found Tyson liable for failing to pay all required

overtime for time spent on donning and doffing activity

and awarded $2.9 million in damages to the class as a

whole. After trial, the district court denied Tyson’s

renewed objections to class certification and for

judgment as a matter of law, finding that the

testimony of Dr. Mericle and Dr. Fox provided

sufficient evidence upon which the jury could base

class-wide findings of liability and damages. Pet. App.

25a-30a.

> Dr. Mericle readily conceded wide variations in

individual donning and doffing time (because some employees were

required to wear considerably more PPE than others and because

completion times vary based on the manner in which PPE is

donned and doffed), with some employees requiring considerably

less than the “average” time to complete the activity.

6

A divided Eighth Circuit panel affirmed. Id. at

la-24a. While conceding that “individual plaintiffs

varied in their donning and doffing routines,” the

appeals court held that Dr. Mericle’s study created a

“just and reasonable inference” that all class members

worked more hours than the hours for which they were

compensated. Jd. at 12a. Rejecting Tyson’s assertion

that Dr. Mericle’s study was incapable of providing a

class-wide answer to the liability and damages

questions, the court said that “using statistics or

samples in litigation is not necessarily tral by

formula.” Jd. at 10a-11. It cited this Court’s decision

in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 546

U.S. 21 (1946), to support its conclusion that the jury

could infer both class-wide liability and damages from

the study. Jd. at lla-13a.

Nor did the Court deem it significant that

Respondents’ own expert, Dr. Fox, concluded that a

significant percentage of the plaintiff class did not

work overtime (even when Dr. Mericle’s “average”

donning, doffing, and travel time were added to their

time records) and thus could not establish liability or

damages. Id. at 8a-9a. The court said, “The fact that

individuals will have claims of differing strengths does

not impact on the commonality of the class as

structured.” Jd. at 9a (citation omitted).

Judge Beam dissented. /d. at 14a-24a. He

concluded that the class- and collective-action

certifications were improper because—in light of the

wide disparity in work performed by class members—a

class-wide proceeding lacked “the capacity to

generate common answers apt to drive the resolution

of the litigation.” Id. at 23a (quoting Wal-Mart, 131S.

ie

‘

Ct. at 2251). He noted that, according to Respondents’

own calculations, at least 212 class members could

establish neither lability nor damages, and said

that—given the jury’s decision to award less than half

the damages computed by Dr. Fox—it was likely that

“more than half of the putative class suffered either no

damages or only a de minimis injury.” Jd. at 22a. The

Eighth Circuit denied Tyson’s petition for rehearing en

banc; six judges voted to grant the petition. Id. at

ll4a.

SUMMARY OF ARGUMENT

This case presents issues of exceptional

importance to the business community. The Eighth

Circuit held that even when the claims of individuals

are widely disparate, a trial court may manufacture

common issues of fact by assuming that each

individual’s claims are identical to a hypothetical

“average” plaintiff, and then base certification of class

or collective actions on the manufactured common

issue of fact. That holding is unfair to defendants

because it denies them the opportunity to defend

against actual, individual claims rather than the

claims hypothesized by the trial court. It is also often

unfair to absent class members, many of whose claims

will end up being compromised for the sake of

obtaining class certification.

Review is warranted because the Eighth

Circuit’s decision cannot be squared with this Court’s

decision in Wal-Mart and directly conflicts with a post-

Wal-Mart decision from the Seventh Circuit. The class

action is “an exception to the usual rule that litigation

is conducted by and on behalf of the individual named

8

parties.” Califano v. Yamasaki, 442 U.S. 682, 700-01

(1979). Departure from that general rule is

permissible only when the requirements of Rule 23

have been met, requirements designed to ensure that

the rights of all parties are fully protected and that

certification does not modify existing nights.

By permitting this case to proceed as though the

claims of all class members were identical to those of a

hypothetical, “average” class member—thereby

preventing Tyson from defending against the claims of

individual class members—the Eighth Circuit violated

the Rules Enabling Act, which forbids interpreting

Rule 23 to “abridge, enlarge or modify any substantive

right.” 28 U.S.C. § 2072(b). Respondents’ class-wide

damage model significantly increases Tyson’s potential

damages above what it would incur if claims were

litigated individually.

Moreover, by allowing liability and damages to

be determined by statistical techniques that presume

all class members are identical to the average observed

in a sample, the appeals court improperly uses the

class-action device to grant plaintiffs access to federal

court without satisfying the “irreducible constitutional

minimum of standing” under Article III. In doing so,

the Eighth Circuit endorsed a class that includes at

least 212 members who lack any injury traceable to the

defendant’s conduct. The Eighth Circuit’s holding thus

strips Article III of its vital gatekeeping function,

which is critical to safeguarding the “proper—and

properly limited—role of the courts in a democratic

society.” Warth v. Seldin, 422 U.S. 490, 498 (1975).

9

But this Court has been vigilant in ensuring that

federal courts do not allow use of class-action

procedures to adversely affect the substantive rights of

any party. By permitting the expediency of the class-

action device to substitute for actual, redressable harm

caused by the defendant, the panel below effectively

gutted Article III and required the defendant to litigate

claims without being able to challenge the standing of

uninjured class members. The district court’s

certification, and the Eighth Circuit’s affirmance, of a

class that includes numerous members who lack any

cognizable injury is sharply at odds with this Court’s

historical understanding of Article III, and it runs

contrary to the settled law of several circuits.

REASONS FOR GRANTING THE PETITION

I. CLASS CERTIFICATION IS IMPROPER

WHERE THE ONLY COMMON ISSUE

TYING TOGETHER DISPARATE CLASS

MEMBERS IS THE HYPOTHESIZED

DESCRIPTION OF AN “AVERAGE” CLASS

MEMBER

The Eighth Circuit certified a plaintiff class

consisting of more than 3,300 employees seeking to

recover overtime wages, despite wide variations among

the employees in terms of hours worked time and

working conditions. Indeed, the only relevant issues

identified by the Eighth Circuit as common to the class

were not contested and thus did not need to be

adjudicated by the district court.‘ The appeals court

* In an effort to distinguish Wal-Mart, the Eighth Circuit

identified the following issues that supposedly tied the class

10

held that the absence of significant common issues

could be overlooked and a class certified on the basis of

a counter-factual presumption: that every class

member engaged in the same amount of donning,

doffing, and walking as the “average” employee.

Respondents were permitted to demonstrate the

amount of work performed by the “average” employee

based on non-random observations of a small sample of

employees. That holding cannot be squared with Wal-

Mart and is in direct conflict with a post-Wal-Mart

Seventh Circuit decision that rejected class

certification in a wage-and-hour case with facts

materially identical to the facts of this case. Review is

warranted to resolve those conflicts.

A. The Class-Wide Issue that Served as

the Basis for Class Certification

Focused on a Hypothetical “Average”

Employee

To obtain class certification in a case seeking

damages (as here), a plaintiff must demonstrate, inter

alia, that “there are questions of law or fact common to

the case,” Rule 23(a)(2), and that “questions of law or

fact common to class members predominate over any

together: “Unlike [Wal-Mart], Tyson had a specific company

policy—the payment of K-code time for donning, doffing, and

walking—that applied to all class members. Unlike [Wal-Mart],

class members worked at the same plant and used similar equip-

ment.” Pet. App. 8a. Those factual issues were uncontested by the

parties. Indeed, uncontested issues such as whether putative class

members all worked for one company were singled out in Wal-Mart

as precisely the sort of issues that do not qualify as common issues

for purposes of Rule 23(a)(2). Wal-Mart, 131S S. Ct. at 2561.

11

questions affecting only individual members.” Rule

23(b)(3). Wal-Mart made clear that the Rule 23(a)(2)

“commonality” requirement is demanding:

Commonality requires the plaintiff to

demonstrate that the class members have

suffered the same injury... . 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 classwide

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.

Wal-Mart, 131 S. Ct. at 2551.

Tye Court has described Rule 23(b)(3)’s

predominance requirement as “even more demanding

than Rule 23(a).” Comcast Corp. v. Behrend, 133 S. Ct.

at 1432. It imposes on courts a “duty to take a close

look at whether common questions predominate over

individual ones.” [bid.

Individual issues abound in this case. All agree

that the number of hours—outside of regular work

shifts—devoted to donning, doffing, and walking by

Storm Lake employees varied considerably from

employee to employee. Moreover, whether such work

entitled a given employee to overtime compensation

12

depended entirely on whether that employee otherwise

worked 40 or more hours during the week in question.

Those individual issues of fact determine whether

Tyson is liable to an employee for unpaid wages and, if

so, what amount of damages are recoverable.

In contrast, the Eighth Circuit did not identify

any issue of contested fact that is common to the class

in the sense that its resolution “will resolve an issue

that is central to the validity of each one of the claims

in one stroke.” Wal-Mart, 131 S. Ct. at 2551. Instead,

it presumed counterfactually that every employee

performed the same amount of donning, doffing, and

walking outside of regular work shifts, thus permitting

the class trial to turn on whether Tyson had paid

sufficient overtime wages to the hypothetical average

employee.

B. The Eighth Circuit’s Class

Certification Decision Cannot Be

Squared With Wal-Mart and Conflicts

with a Post-Wal-Mart Decision from

the Seventh Circuit

The effect of class certification in this case was

to deprive Tyson of the ability to litigate its statutory

defenses to individual claims. Once the district court

held that Tyson's liability to the entire class turned on

whether Tyson had paid sufficient overtime to the

hypothetical average employee, it could no longer avoid

lability by demonstrating that class counsel had failed

to demonstrate that specific class members were

inadequately compensated. As Tyson has explained,

“In a class trial, ... Tyson was reduced to attacking the

13

methodology used by plaintiffs’ experts to determine

the ‘average’ donning/doffing time.” Pet. at 23.

Review is warranted because the decision to

certify a plaintiff class under such circumstances

cannot be squared with Wal-Mart. The Court

explained in Wal-Mart that class certification under

such circumstances amounts to an impermissible “Trial

by Formula.” 131 S. Ct. at 2541. Under a trial plan

approved by the Ninth Circuit in Wal-Mart, a master

was to determine the liability and backpay claims of a

small group of class members. The trial court would

then extrapolate “the entire class recovery” (for a class

of 1.5 million employees) from the verdicts rendered in

those initial proceedings. In other words, Wal-Mart

would not be permitted to contest the remaining 1.5

million claims by asserting that it did not discriminate

against the specific employees in question. Jd. This

Court held that Rule 23 class certification could not be

employed in that manner. It stated, “Because the

Rules Enabling Act forbids interpreting Rule 23 to

‘abridge, enlarge, or modify any substantive nghts, 28

U.S.C. § 2072(b), a class cannot be certified on the

premise that Wal-Mart will not be entitled to litigate

its statutory defenses to individual claims.” Id.

In an effort to distinguish Wal-Mart, the Eighth

Circuit said, “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.” Pet. App. 10a. That

effort to distinguish Wal-Mart is unavailing because it

is based on a false premise: Respondents do, in fact,

seek to “prove liability only for a sample set of class

14

members.” Plaintiffs’ claim rests entirely on Dr.

Mericle’s time study that purported to determine

average donning and doffing time, and that study was

based on a small, non-random sample of Tyson

employees.°

The Petition demonstrates that the Eighth

Circuit’s endorsement of class certification conflicts

with numerous circuit court decisions. One of those

decisions (from the Seventh Circuit) merits special

mention, both because of its factual similarity to this

case and because it demonstrates that appeals courts

have reached conflicting decisions regarding the

meaning of Wal-Mart. In Espenscheid v. DirectSat

USA, LLC, 705 F.3d 770 (7th Cir. 2013), the Seventh

Circuit affirmed class decertification in a case brought

by individuals claiming that their employer failed to

pay them time-and-a-half for overtime work. The

Court concluded that Rule 23(b){3) did not permit class

counsel to litigate the claims of 2,341 putative class

members based on the testimony of 42 “representative”

* This Court's Mt. Clemens decision does not support the

district court’s reliance on sampling evidence as its basis for class

certification. At issue in Mt. Clemens was the legal issue of

whether employees’ donning, doffing, and walking time was

compensable under the FLSA, not the factual question of how

much donning, doffing, and walking time there was. In concluding

that the donning, doffing, and walking time of al! employees was

compensable, the Court examined the evidence submitted by eight

employees regarding plant-wide working conditions. But the court

did not attempt to extrapolate clase-wide compensable time from

the evidence submitted by the eight employees. Rather, it

remanded the case so that the district court could determine class-

wide compensable time in the first instance. Mt. Clemens, 328

U.S. at 691-94.

15

members of the class—in part because there was no

evidence that the experiences of the 42 were

representative of the class as a whole. Jd. at 774.

Moreover, the Seventh Circuit held that class

certification would be inappropriate even if their

experiences were representative of the entire class

because it is impermissible to award averaged damages

to class members whose damages are not identical:

To extrapolate from the experience of the 42 to

that of the 2341 would require that all 2341

have done roughly the same amount of work,

including the same amount of overtime work,

and had been paid the same wage. No one

thinks there was such uniformity. And if 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)

undercompensate him by half.

Id. The conflict between the Seventh and Eighth

Circuits could not be starker. Both cases involved

overtime claims under the FLSA; in both cases the

parties understood that the relevant facts varied

considerably from employee to employee. The Eighth

Circuit permitted class certification in reliance on a

study of a small, non-random sample of class members,

based on the counterfactual presumption that every

employee’s experience was roughly similar to the

16

hypothetical “average” employee identified by the

study. In contrast, the Seventh Circuit concluded that

class certification is never permissible under such

circumstances; it determined that, even if the 42

employees providing evidence were representative of

the class as a whole, class certification would be

inappropriate as a vehicle for awarding averaged

damages that would overcompensate some and

undercompensate others. Review is warranted to

resolve this sharp inter-circuit conflict over a

frequently recurring issue.

C. Review Is Warranted Because the

Assumption that Every Employee’s

Claim Is Identical to That of the

“Average” Employee Is Unfair to

Absent Class Members

By certifying the class on the basis of a counter-

factual presumption—that every employee devoted an

identical number of hours (outside of regular work

shifts) to donning, doffing, and walking—the decision

below is also unfair to absent class members. Given

the acknowledged wide disparity in time devoted to

donning and doffing, by definition there will be a

significant number of employees with above-average

donning and doffing times and (if their work-weeks

exceeded 40 hours) above-average overtime claims. As

the Seventh Circuit pointed out, those above-average

employees will be shortchanged if they are limited to

an undifferentiated, per capita share of any class

award. Espenscheid, 705 F.3d at 774.

17

Moreover, any distribution of a class award on

the basis of Dr. Fox’s calculations regarding who was

injured could end up denying all recovery to some

employees with potentially meritorious claims—e.g.,

employees with above-average donning and doffing

times but below-average overtime hours. Such

employees arguably are entitled to compensation if

their above-average donning and doffing times are

sufficient to push their total work per week above 40

hours. But because Dr. Fox’s overtime calculations

give them credit only for an average amount of donning

and doffing time, Respondents’ theory of liability might

not credit them with overtime hours and thus would

deny them any compensation claim.

One can understand why it is in the interest of

plaintiffs’ attorneys to average out the monetary claims

of all class members; doing so arguably increases the

chances of obtaining a lucrative class-certification

order (at least it did here). But averaging out

monetary claims will harm the interests of many of the

attorneys’ supposed clients. Rule 23(a)(4) prohibits

* The author of the Eighth Circuit panel decision has

suggested that, on remand, class members determined to be

uninjured should not be included in the distribution of damages.

See Pet. App. 131a (Opinion of Benton, J., respecting the denial of

rehearing en banc) (“In this case, employees without damages are

not entitled to allocation of the award.”). WLF notes, however,

that in light of the jury’s decision to award lump-sum damages

that were substantially less than the damages calculated by Dr.

Fox, any distribution of the award among class members will be

essentially arbitrary. As Judge Beam pointed out, it is impossible

to determine who the jury thought was uninjured. Pet. App. 22a.

18

class certification unless counsel can demonstrate that

(s)he “will fairly and adequately protect the interests of

the class.” Review is warranted to determine whether

Rule 23(a)(4) bars class certification based on the

counterfactual presumption that all class members

possess the same characteristics as the hypothetical

“average” class member.

Indeed, in light of the inherent conflict between

class counsel and absent class members with above-

average donning and doffing time, the latter would

have a plausible claim that they are not bound by the

judgment in this case. A court may not bind absent

class plaintiffs to a judgment concerning money

damages unless it provides “minimal procedural due

process protection.” Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 811-12 (1985). Those “minimal”

protections include adequate representation “at all

times” by the named plaintiffs and their counsel. /d. at

812. Review is warranted to determine whether class-

action defendants should be subjected to class-action

judgments that arguably are not equally binding on all

members of the plaintiff class.

Ii. THE COURTSHOULD GRANT REVIEW TO

CLARIFY THAT ARTICLE III's INJURY-IN-

FACT REQUIREMENT APPLIES TO ALL

MEMBERS OF A CERTIFIED CLASS

Article III, § 2 of the Constitution extends the

“judicial Power” of the United States to only “Cases”

and “Controversies.” To be justiciable, every suit

brought in federal court must seek to redress an

“injury in fact” caused by the defendant. Whitmore v.

19

Arkansas, 495 U.S. 149, 155 (1990). This Court has

explained Article III's standing requirements as

follows:

The irreducible constitutional minimum of

standing contains three requirements. ... First,

and foremost, there must be alleged (and

ultimately proven) an “injury in fact”~-a harm

suffered by the plaintiff that is “concrete” and

“actual and imminent, not ‘conjectural’ or

‘hypothetical.” ... Second, there must be

causation—a fairly traceable connection between

the plaintiffs injury and the complained-of

conduct of the defendant. ... And third, there

must be redressability—a likelihood that the

requested relief will redress the alleged injury.

Steel Co. v. Citizens for a Better Environment, 523 US.

83, 102-103 (1998) (citations omitted). A plaintiff thus

lacks standing unless he has suffered “a distinct and

palpable injury to himself.” Warth, 422 U.S. at 501.

This bedrock requirement of Article III jurisdiction

“cannot be removed.” Summers v. Earth Island Inst.,

555 U.S. 488, 497 (2009).

Article III's injury-in-fact requirement is no

“mere pleading requirement” but must be satisfied at

each “stag{e} of the litigation.” Lujan vu. Defenders of

Wildlife, 504 U.S. 555, 561 (1992). Even under Re

23, plaintiffs may aggregate only those claims that

could be brought individually. That is why this Court

has consistently held that class certification cannot

provide individuals a mght to relief in federal court

that the Constitution would otherwise deny them if

20

they sued separately. See, e.g., Philip Morris USA Inc.

v. Scott, 131 S. Ct. 1, 3 (2010) (recognizing a due-

process violation when “individual plaintiffs who could

not recover had they sued separately can recover only

because their claims were aggregated with others’

through the procedural device of the class action”);

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612-13

(1997) (‘Rule 23’s require ments must be interpreted in

keeping with Article III's constraints.”).

Rather than heed this Court’s directives, the

courts below ignored uncontested record evidence that

substantial variations existed in the donning, doffing,

and walking times of employees, who held different

positions, used different combinations of equipment,

and had different work routines. Despite the highly

individualized donning, doffing, and walking times of

class members, the district court simply assumed that

every class member spent the same “averaged” amount

of additional time on the job. Yet Respondents’ own

damages expert conceded that the class included over

212 members who suffered no injury whatsoever. See

Pet. App. 22a, 122a. And because the jury issued an

aggregate damages award less than haif that requested

by Respondents, it is likely that more than half of the

putative class suffered no damages. Id. at 22a, 125a.

Nevertheless, the district court included those

uninjured plaintiffs in the aggregate damages award.

Trying a lawsuit on a class-wide basis is

improper unless there is some feasible means of

distinguishing injured class members from uninjured

plaintiffs. Here there is none. As Judge Beam

recognized in his dissent from the court’s denial of

21

rehearing, the district court’s “lump sum judgment

contains no discernible guidelines sufficient to

establish the individual damages due to the limited

number of members of the certified class with provable

damages.” Pet. App. 126a. And yet, “[njeither the

district court nor the panel majority offer any

instructions for, or insight into, how this judgment may

be lawfully and fairly executed and by whom.” Jd.

The deeply flawed decisions below thus sidestep

“the threshold question in every federal case,

determining the power of the court to entertain the

suit.” Warth, 422 U.S. at 498. As a result, the growing

prospect that class-action lawsuits will result in

recovery for uninjured plaintiffs poses a serious

threat—not only to this Court’s precedents, but to the

rule of law. “In an era of frequent litigation [and] class

actions, ... courts must be more careful to insist on the

formal rules of standing, not less so.” Ariz. Christian

Sch. Tuition Org. v. Winn, 1318S. Ct. 1436, 1449 (2011).

Three circuits have squarely held that all

members of a certified class must satisfy Article III

standing to have their claims adjudicated in federal

court. See In re Rail Freight Fuel Surcharge Antitrust

Litigation, 725 F.3d 244, 252 (D.C. Cir. 2013)

(requiring plaintiffs to show “that all class members

were in fact injured by the alleged conspiracy”); Mazza

v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir.

2012) C[N]jo class may be certified that contains

members lacking Article III standing.”); Denney v.

Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006)

(holding that the class must “be defined in such a way

that anyone within it would have standing”). The

22

Eighth Circuit’s decision in this case exacerbates an

existing circuit split on this question, further

underscoring the urgent need for this Court’s

discretionary review.’

Moreover, allowing uninjured persons to obtain

recovery in federal court also violates the principle that

the Federal Rules of Civil Procedure “do not extend”

the “jurisdiction of the district courts.” Fed. R. Civ. P.

82; see Amchem, 521 U.S. at 613; Theane Evangelis &

Bradley J. Hamburger, Article ITI Standing and Absent

Class Members, 64 EMORY L.J. 383, 398 (2014)

(“Expanding [Article III] power to allow uninjured

plaintiffs to litigate their claims in federal court solely

because they are aggregated with others in a class

action would violate the Rules Enabling Act, Rule 82,

and due process.”).

The question of whether a certified class may

include individuals who lack an injury-in-fact under

Article III is in desperate need of resolution by this

Court. Although the Court has so far declined to

" See DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1198

(10th Cir. 2010) (“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.”); Kohen v. Pacific Investment Mgmt. Co., 571 F.3d 672,

676-77 (7th Cir. 2009) (“[A]s long as one member of a certified class

has a plausible claim to have suffered damages, the requirement

of standing is satisfied.”); Krell v. Prudential Ins. Co. of Am., 148

F.3d 283, 306-07 (3d Cir. 1998) (Once threshold individual

standing by the class representatives is met .. . there remains no

further separate class standing requirement in the constitutional]

sense.”).

23

answer that question, see Carpenter Co. v. Ace Foam,

Inc., 1385 S. Ct. 1493 (2015); and BP Exploration &

Prod. Inc. v. Lake Eugenie Land & Develop., Inc., 135

S. Ct. 754 (2014), no good reason exists to allow this

recurring problem to fester any longer.* Only this

Court can provide a single, nationally uniform rule

clarifying that district courts may not certify a class

unless ali members have suffered an injury caused by

the defendant.

If anything, this case offers a more attractive

vehicle than earlier petitions. Because this case was

tried to verdict, here we know precisely the evidence

Respondents used to “prove” class-wide injury and

damages at trial. Rather than determine the actual

damages of individual class members, Respondents

relied on statistical techniques that improperly

presumed that each class member was injured and

should be awarded damages equal to the average

observed in a sample. That egregious shortcut resulted

in a lump-sum judgment to a class that includes

hundreds of members who suffered no injury

whatsoever. Given the increasing frequency with

which lower federal courts have been willing to jettison

the traditional threshold requirements of Article ITI,

* The lower federal courts have also ignored Article III's

injury-in-fact requirement in the context of congressionally created

private rights of action. So far, that issue has likewise escaped the

Court’s review. See Mut. First Fed. Credit Union v. Charvat, 134

S. Ct. 1515 (2014) (denying petition for writ of certiorari); First

Am. Fin. Corp. v. Edwards, 132 8. Ct. 2536 (2012) (per curiam)

(dismissing writ of certiorari as improvidently granted); cf. Spokeo,

Inc. v. Robins, No. 13-1339 (May 1, 2014) (petition for writ of

certiorari pending).

24

review of the troubling class-certification decision

below is particularly warranted.

It is beyond question that if any class member

were to sue Tyson in an individual capacity in district

court, he would need to satisfy Article III. But there is

a constant temptation for district courts, which

invariably face crowded dockets and finite resources, to

adopt shortcut procedures designed to achieve quick

resolution of cases raising similar issues. As this Court

has cautioned, the “desire to obtain (sweeping relief)

cannot be accepted as a substitute for compliance with

[the standing requirements of Article ITI].” Schlesinger

u. Reservists Comm. to Stop the War, 418 U.S. 208, 221-

22 (1974) (quoting McCabe v. Atchison, T. & S.F.R. Co.,

235 U.S. 151, 164 (1914)). Indeed, “[t]empting as it is

to alter doctrine in order to facilitate class treatment,

judges must resist so that all parties’ legal rights may

be respected.” Jn re Bridgestone/Firestone, Inc. Tires

Prods. Liab. Litig., 288 F.3d 1012, 1020 (7th Cir. 2002),

cert. denied, 537 U.S. 1105 (2003).

"a sum, the Court should grant review to prevent

the lower federal courts from continuing to use Rule 23

as a mechanism to avoid the constitutional limits of

Article [I jurisdiction.

25

CONCLUSION

The Court should grant the Petition.

Respectfully submitted,

Richard A. Samp

(Counsel of Record)

Cory L. Andrews

Washington Legal Found.

2009 Massachusetts Ave, NW

Washington, DC 20036

202-588-0302

rsamp@w!lf.org

April 20, 2015