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 Gnited States

Tyson Foops. INc..

Petitioner.

V.

PeG Bou aAPHAkEo, ef al., INDIVIDUALLY AND ON BEHALF

OF ALL OTHER SIMILARLY SITUATED INDIVIDUALS,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

LYNN K. RHINEHART

HAROLD CRAIG BECKER

(Counsel of Record)

YONA ROZEN

S15 Sixteenth Street, NW

Washington, DC 20006

(202) 637-5310

Peake Delancey Pooters. LLC - (90°) 341-4800 - Chevery MD

<>

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF THE ARGUMENT

ARGUMENT

i

TABLE OF CONTENTS

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I. TYSON WAIVED ANY OBJECTION TO

IL.

If.

CONCLUSION

THE COLLECTIVE ACTION UNDER

§ 216(b) OF THE FLSA BY NOT

ADEQUATELY PRESENTING THE

|__| EE RRR RR

THE DISTRICT COURT PROPERLY

CERTIFIED THE CLASS UNDER

RULE 23(b)(3) DESPITE VARIATIONS

IN HOURS WORKED AMONG THE

“GANG TIME” EMPLOYEEB..................

THE DISTRICT COURT PROPERLY

CERTIFIED THE CLASS EVEN

THOUGH IT WAS POSSIBLE THAT

NOT EVERY EMPLOYEE WOULD

RECOVER DAMAGE SG.................:ceeeeeeee

. THE DISTRICT COURT PROPERLY

PERMITTED THE ACTION TO

PROCEED AS A COLLECTIVE

ACTION UNDER § 216(B)

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31

i

TABLE OF AUTHORITIES

CASES Page

Acevedo v. Allsup’s Convenience Stores, Inc.,

600 F'3d 516 (5th Cir. 2010) ow. 17

Amgen v. Connecticut Retirement Plans

and Trust Funds, 133 S.Ct. 1184 (2013)... 4, 21

Anderson v. Mt. Clemens Pottery Co..,

I 2

Becker v. Southern Soils,

No. 6:06-cv-Orl-28JGG, 2006 U.S. Dist.

LEXIS 85111 (M.D. Fla, Nov. 20, 2006)...... 16

Borges v. Serrano-Isern,

GaP EB COE GU BPO Poiececticecciccacorancesnones Q

Carducci v. Regan,

714 F2d 171 (D.C.Cir. 1983) ........................ Mi

Coldiron v. Pizza Hut, Inc.,

No. CVC3-05865TJHMCX, 2004 U.S. Dist.

LEXIS 23610 (C.D. Cal., Oct. 25, 2004)....... 17

Comcast Corp. v. Behrend,

see 21, 22

Crown, Cork & Seal, Inc. v. Parker,

ti | een eananrene 15

Espenscheid v. DirectSat USA, LLC,

705 F.3d 770 (7th Cir. 2013) oe 6, 10

Genesis Healthcare Corp. v. Symcezyk,

133 S.Ct. 1523 (2013) ................ccc000e. 1,8,9, 11, 15

Graver Tank & Mfg. Co. v.

Linde Air Products Co..

tk es dena 24

TABLE OF AUTHORITIES—Continued

CASES Page

Grayson v. K Mart Corp.,

79 F.3d 1086 (11th Cir. 1996) 2.000000. 17, 18

Halliburton Co. v. Erica P John Fund, Inc..

134 S.Ct. 2398 (2014) oo... eccececcccessesececesess, 33

Harkins v. Riverboat Servs..

No. 99 C 123, 2002 U.S.Dist.

LEXIS 19637 (N.D. Ill., May 16, 2002)........ 16

Hoffman-LaRoche, Inc. v. Sperling,

SG |) ___, aa 6, 8, 12, 13

IBP, Inc. v. Alvarez,

fe) | Re ee 7

Ingersoll v. Royal & Sunalliance USA, Inc..

No. C05-1774-MAT, 2006 U.S. Dist.

LEXIS 50912 (W.D. Wash., July 25, 2006)... 16

Int'l Brotherhood of Teamsters v. U.S.,

Jf GS ; ee Io Leeaee e 25

Kohen v. Pacific Investment Management Co..,

571 F.3d 672 (7th Cir. 2009) occ. 33

Luna v. Del Monte Fresh Produce

(Southeast), Inc.,

2007 U.S. Dist. LEXIS 36893 (N.D. Ga., 2007). 16

McElmurry v. U.S. Bank National Ass’n,

495 F.3d 1136 (9th Cir. 2007) o.oo. 14

Morgan v. Family Dollar Stores, Inc.,

551 F.3d 1233 (11th Cir. 2008) ................ 16, 17, 34

iv

TABLE OF AUTHORITIES—Continued

CASES Page

Mt. Clemens Pottery Co. v. Anderson,

149 F.2d 461 (6th Cir. 1945) 30

Myers v. Hertz Corp.,

624 F.3d 537 (2d Cir. 2010)..............ceeeeseeeee 18

In re Nexium Antitrust Litigation,

717 F.3d 9 (ist Cir. 20158)............2.........c00.000. 33

O’Brien v. Ed Donnelly Enters..,

575 F.3d 567 (6th Cir. 2009) ........0000.0.0.. 17, 18, 34

Procter & Gamble Co. v. Amway Corp..,

376 F.3d 496 (5th Cir. 2004) oe 10

Schmidt v. Fuller Brush Co..,

527 F.2d 532 (8th Cir. 19775) ...............ccsc.0000. 14

Steiner v. Mitchell,

8 fg ESSERE SEES eer eere 6

Tennessee Coal, Iron & Railroad Co. v.

Muscoda Local No. 123,

a I Ss ccrnentcpnsechasnoniceninianideaneas 4,12

Thiessen v. General Electric Capital Corp.,

267 F.3d 1095 (10th Cir. 2001) ..0...00. ee. 11

U.S. Parole Comm'n v. Geraghty,

ee IIE secceinrsteiccepinbencinncanvoeninbeanti 10

Zavala v. Wal-Mart Stores Inc.,

691 F.3d 527 (3d Cir. 2012).................... 11, 17, 34

Vv

TABLE OF AUTHORITIES—Continued

Page

STATUTES AND REGULATIONS:

Equal Pay Act of 1963, 29 U.S.C. § 206(d) .... 12

Fair Labor Standards Act of 1938

Pub. L. No. 75-718, 52 Stat. 1060

ae Ch OF OOD ccnssescivatieniiiiddaag omar 7

BP Ura FD oisinceinenindantabiean passim

Lik C1 | GRR Me SR 15

ae a. CID vcecntiniisinticnuaaieine 12

ek « BT |}. yy eee ee 7

RULES:

Federal Rules of Civil Procedure

SE TEE nesevottnindsnsauibisagineteanenan onan passim

ft Re ee Rs nao passim

Iowa Code § 91A.6(1)(d)..........0ccccceceteeeeeeeees 7

LEGISLATIVE MATERIALS:

S. Rep. No. 48, 80th Cong., Ist Sess. 49

CER TD, TIED esctintcnesisnercipntenseiestinmintaatadiste 13

H.R. Rep. No. 326, 80th Cong., Ist Sess. 13

Ff srr a tts Tae 13

93 Cong. Rec. 2,182 (1947).............-.sc0ccssscssssee 13

vi

TABLE OF AUTHORITIES—Continued

Page

MISCELLANEOUS:

7B Wright & Miller, Federal Practice and

RESETS ll

2 W. Rubenstein, Newberg on Class Actions

§ 4:54, p. 205 (5th ed. 2012) on. cecceeen 22

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

reprinted in 39 F.R.D. 69, 104 (1966)........... 14

l

INTEREST OF AMICUS CURIAE

The American Federation of Labor and Congress

of Industrial Organizations (AFL-CIO) is a federation

of 56 national and international labor organizations

with a total membership of approximately 12 million

working people.' The AFL-CIO has a strong interest

in employees being able to represent and join with

one another to enforce their rights under the Fair La-

bor Standards Act (FLSA) and other federal and state

labor standards laws.

SUMMARY OF THE ARGUMENT

I. Tyson waived any objection to this case proceed-

ing as a collective action under § 216(b) by not ade-

quately presenting the issue in its brief. The issue is

an important one to all employees covered by the

FLSA and one of first impression in this Court, yet

Tyson makes no argument in support of its position.

Rather, Tyson makes the bald and unsupportable as-

sertion that the standards for determining whether

employees are “similarly situated” under § 216(b)

“can be no less stringent” than those applied under

Rule 23(b)(3). But § 216(b) and Rule 23(b)(3) differ

on their face; have different origins, distinct purpos-

es, and vastly different scopes; and operate in “fun-

damentally different” manners. Genesis Healthcare

Corp. v. Symezyk, 133 S.Ct. 1523, 1529 (2013). Thus,

' Counsel for the petitioner and counsel for the respondent

have filed letters with the Court consenting to the filing of am-

icus briefs on either side. No counsel for a party authored this

brief amicus curiae in whole or in part, and no person or ern

tity, other than the amicus, made a monetary contribution to

the preparation or submission of this brief.

2

the overwhelming majority of lower federal courts

have rejected Tyson's position, specifically in rela-

tion to the predominance requirement.

Il. The District Court did not abuse its discretion

in certifying the Rule 23(b)(3) class despite variation

in the hours worked by “gang time” employees. The

Rule requires only that common questions “predomi-

nate.” “[Q]uestions affecting only individual mem-

bers” of the class can exist, including questions relat-

ing to damages.

Tyson's argument is not actually about certification

of the class, but about the quality of the evidence in-

troduced at trial concerning hours worked. But even

assuming that evidence was somehow deficient, any

error at trial does not infect the certification deci-

sion. Viewed from the perspective of the trial judge

deciding the motion to certify a class, the common

questions predominated because the individual ques-

tions did not require wholly individualized proof and

could have been efficiently tried in a number of ways,

including that employed by Plaintiffs, without over-

whelming the common questions.

This Court's holding in Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680 (1946), permitting employ-

ees to prove how many hours they worked “as a mat-

ter of just and reasonable inference” when their em-

ployer has * reached its duty to keep records applies

both to proof that the employees worked more than

40 hours and to proof of how many more. But appli-

cation of Mt. Clemens is not necessary to hold that

Plaintiffs could and did prove hours worked using

appropriate representative proof that did not over-

whelm the fully common questions.

3

III. The District Court did not abuse its discretion

by certifying the Rule 23(b)(3) class despite the fact

that it was likely some members never worked more

than 40 hours in a week because Plaintiffs’ evidence

identified such employees and the judge's instruc-

tions insured that their claims did not add to the jury

award and that they did not share in that award. Un-

der Tyson's reading of Rule 23(b)(3), the only indi-

vidual questions that could exist would be about the

amount of damages contrary to the unambiguous

text of the Rule. Tyson's reading would preclude cer-

tification in almost every case.

IV. If this Court decides that Tyson has not waived

its objection to the case proceeding as a collective

action under § 216(b), it should hold that the District

Court did not abuse its discretion in so permitting

because the more stringent standards of Rule 23(b)

(3) were met and because each of the criteria identi-

fied by the lower federal courts applying the similarly

situated standard supports the conclusion that the

employees were so situated here.

ARGUMENT

Introduction

Four preliminary points place this case in context.

1. The employees at issue all work in Tyson's

Storm Lake lowa pork processing plant. The work

they perform is hard, demanding and dirty. See J.A.

51-52 (on Cut Line ), 58-59 (on Slaughter Floor), 67

(on Retrim Line),’ 118 (generally). For example,

* The Processing Floor includes the cut and retrim lines.

J.A. 146.

4

one “Splitter” testified that he uses a 200lb saw with

an 18 inch blade to cut about 17 hogs in half per

minute. J.A.303-05. The employees earn between

$11 and $15.50 per hour (or between $23,000 and

$32,000 per year). J.A. 122. The employees all al-

leged that they were not compensated as required

by the federal FLSA and the lowa Wage Payment

and Collection Law for time spent performing re-

quired tasks at the start and end of their work day,

such as donning and doffing protective garments,

sanitizing knives and other equipment, and travel-

ing to and from their work stations.

Tyson and many of its amici seek to characterize

this case as being about “enterprising lawyers and

their experts.” Chamber Br. 19. But, as this Court

held over a half century ago, here, “we are dealing

with human beings and with a statute that is intended

to secure to them the fruits of their toil and exertion.”

Tennessee Coal, Iron & Railroad Co. v. Muscoda Lo-

cal No. 123, 321 U.S. 590, 592 (1944).

2. The Rule 23 class and the subset thereof that

joined the action pursuant to 29 U.S.C. § 216(b) are

relatively small (3,344 and 444 respectively), clearly

defined, and “sufficiently cohesive.” Amgen v. Con-

necticut Retirement Plans and Trust Funds, 133

S.Ct. 1184, 1196 (2013).

All the employees work for a single employer at a

single plant. J.A. 117. Even more specifically, all the

employees work on two floors of the plant, the

Slaughter or “Kill” floor and the Processing or “Fabri-

cation” floor. They do similar work using similar

tools and wearing similar protective clothing.

5

All the employees are paid according to the same

system. The fact that that pay system—unique to

members of the class—is denominated “gang time’

by Tyson itself further evidences the cohesive na-

ture of the group. Pet.App. 45a446a (emphasis add-

ed). The method used to calculate employees’ base

compensation does not vary by individual]. Rather,

each employee starts getting paid when the first hog

“hits the floor” and stops getting paid when the last

hog “hits the floor.” Jd. Every employee spends ad-

ditional time before and after the start and end of

such “gang time” changing in and out of protective

clothing, preparing and cleaning tools, and travel-

ing to and from their work stations, but no “gang

time” employee is compensated for the precise

amount of time spent performing those required

tasks. Pet.App. 47a-48a.

Tyson’s own practices evidence the cohesive-

ness of the class in relation to the precise question

at issue here. Not only did Tyson not compensate

all members of the class based on the actual time

each individual spent performing required tasks at

the start and end of the day, Tyson itself consid-

ered the time the individuals spent engaged in such

activities to be sufficiently similar that it paid them

the same, lump-sum amount to compensate them

for the time. J.A. 48, 65, 121, 432. In fact, Tyson

calculated the extra pay using methods that close-

ly parallel the proof in this case. J.A. 434, 437 (“the

industrial engineer will do their [sic] study to de-

termine how many minutes” for each position),

437 (“That’s what the K-code is. It is the amount of

time that we expect you to do that pre and post-

shirt activity [in].”)

6

3. The injuries in this case are precisely the type

that class and collective actions were designed to en-

able individuals to remedy in court. The average

damage award was $846.94 ($2,892,378.70/3,344).

Without access to class and collective actions, these

employees and others similarly situated who have

been illegally deprived of small amounts of pay will

be unable, as a practical matter, to enforce their stat-

utory rights. As Judge Posner observed in Espensc-

heid v. DirectSat USA, LLC, 705 F.3d 770, 776 (7th

Cir. 2013), “Although each class member claims to

have lost several thousand dollars as a result of [the

employer]'s alleged [wage and hour] violations, that

isn’t enough to finance a modern federal lawsuit;

it is class treatment or nothing.”

Even more specifically, Congress intended §

216(b) of the FLSA to enable groups of workers to

recover unpaid wages in amounts that are small in

relation to the cost of litigation, but nevertheless

crucial to the well-being of the workers. See Hoff-

man-LaRoche, Inc. v. Sperling, 493 U.S. 165, 170

(1989). When Congress amended § 216(b) in 1947,

claims of the precise type at issue here, for compen-

sation for start and end of the day activity and walk-

ing time - for “portal-to-portal” pay - were the cen-

tral focus of the debate. And Congress decided to

leave untouched employees’ rights both to compen-

sation for clothes changing that is “an integral part

of and indispensable to their principal activities”

and to walking time once such “principal” activities

have begun as well as to sue on behalf of others

“similarly situated,” while it revised other parts of

the FLSA, including § 216(b). Steiner v. Mitchell,

7

350 U.S. 247, 255 (1956); IBP, Inc. v. Alvarez, 546

U.S. 27, 37 (2 005). infra at 12 n. 9.

4. Finally, the sole non-common question al-

leged by Tyson is entirely the product of Tyson's

violation of the law. Tyson was required by law to

keep accurate records of all hours worked by its

employees each week. See 29 U.S.C. § 211{(c); 29

C.F.R. § 516.21(7); lowa Code § 914.6(1)(d). Had

it done so, the calculation of the damages owed

each class member would have been wholly me-

chanical.

In fact, Tyson used seven time clocks in the

plant. If employees were one minute late, a clock

recorded the time and their pay could be docked.

J.A. 174. Tyson’s Human Resource Manager ac-

knowledged that that “the company has a time-

system in place where it is administratively prac-

tical to keep up with the employees’ time down to

the minute.” J.A. 175. Tyson could easily have

instructed employees to punch in at the start of

their first work activity and punch out at the con-

clusion of their last activity. J.A. 208-09. Yet the

parties stipulated, “Tyson does not use such re-

corded time to determine an employee's compens-

able hours or pay. J.A. 120.

Tyson chose both to violate the substantive law

and to ignore the record keeping requirements and

now uses the consequences of the latter transgres-

sion to suggest that its employees cannot resort to a

class or collective action and therefore cannot, as a

practical matter, obtain a remedy for Tyson's viola-

tion of the substantive law.

8

I. Tyson Waived Any Objection to the Collective

Action Under § 216(b) of the FLSA by Not

Adequately Presenting the issue In Its Brief

Tyson's brief does not address the § 216(b) issue

with sufficient detail for this Court to reverse the

court of appeals.’ In full, Tyson’s argument con-

cerning § 216(b) occupies two pages and, as we ex-

plain oerom, contains no colorable argument. Pet.

Br. at 25-27.

A. The standard courts should apply in deciding

whether to permit an action to proceed as a collec-

tive action under § 216(b) is an issue of first impres-

sion in this Court. The only decisions of this Court

considering § 216(b), Hoffmann-La Roche and Gen-

esis, in no way address the meaning of the term

“similarly situated.” The sole and “narrow question”

presented in Hoffman-La Roche was “whether a

district court conducting a suit [under § 216(b)] may

authorize and facilitate notice of the pending ac-

tion.” 493 U.S. at 167, 169. This Court did not man-

date or even approve a certification-type procedure,

but held only “that district courts have discretion in

appropriate cases, to implement 29 U.S.C. § 216(b)

by facilitating notice to potential plaintiffs” and

that “the District Court was correct to permit dis-

covery of the names and addresses of the” similarly-

situated employees for that purpose. /d. at 169-70.

Nothing in the opinion speaks to the standards that

‘Tyson's Petition did not point to any split in the Circuits

conceming § 216(b).

* Tyson's amici also make no relevant argument conceming

§ 216(b).

9

should apply to determine if employees are “simi-

larly situated” for purposes of permitting such dis-

covery and notice.

Genesis considered only whether an action brought

as a collective action under § 216(b) “is justiciable

when the lone plaintiffs individual claim becomes

moot.” 133 S.Ct. at 1526. In Genesis, the case was

dismissed as moot before the trial court authorized it

to proceed as a collective action and thus this Court

had no occasion to consider the standards that should

apply in making that determination.

Despite the fact that this Court has not addressed

the question, Tyson asserts that “the standards gov-

erning certification[*] of a collective action under the

FLSA can be no less stringent” than those under Rule

23(b)(3). Given the complete absence of relevant ju-

risprudence in this Court speaking to the standards

applicable under § 216(b) and Tyson's complete fail-

ure to present any substantive argument on the is-

sue, it would be unwise for this Court to address this

important and unsettled issue. As then Judge Scalia

stated, “the issue is one of first impression, and of

major importance to all employees We will not

resolve that issue on the basis of briefing and argu-

ment by counsel which literally consisted of no more

than the assertion . . ., with no discussion of case law

supporting that proposition or of the statutory text

and legislative history relevant to the central ques-

tion.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.

1983). See also, e.g., Borges v. Serrano-Isern, 605

F.3d 1, 6 (1st Cir. 2010) (“failure to present any devel-

* Nothing in § 216(b) requires “certification.

10

oped argumentation” resulted in waiver); Procter &

Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1

(5th Cir. 2004) (“Failure adequately to brief an issue

on appeal constitutes waiver of that argument.”)

This Court has observed that “[t]he imperatives of a

dispute capable of judicial resolution are sharply

presented issues. .and __ parties vigorously advo-

cating opposing positions.” U.S. Parole Comm’n v.

Geraghty, 445 U.S. 388, 403 (1980). Here, Tyson has

made an unsupported assertion and therefore not

presented the issue at all.

Moreover, Tyson's bald assertion is contradicted

by the authorities it cites. After asserting that the

standards under § 216(b) “can be no less stringent”

than under Rule 23(b)(3), Tyson cites a single court

of appeals decision and for the different proposi-

tion that assessing whether employees are “similar-

ly situated” for purposes of § 216(b) “requires an

analysis similar to that under Rule 23(b)(3).” Pet.

Br. 26 (emphasis added). And in the cited decision,

Judge Posner acknowledges that his position is con-

trary to that of the Sixth and Eleventh Circuits. Fs-

penscheid, 705 F.3d at 772. Moreover, the one court

of appeals decision cited for support in Espensc-

heid actually states:

Congress clearly chose not to have the Rule 23

standards apply to class actions under the ADEA,

and instead adopted the ‘similarly situated’ stan-

dard. To now interpret this ‘similarly situated’

standard by simply incorporating the require-

ments of Rule 23 (either the current version or

the pre-1966 version) would effectively ignore

Congress’ directive.

ll

Thiessen v. General Electric Capital Corp., 267 F.3d

1095, 1105 (10th Cir. 2001).° Indeed, just three months

before Espenscheid issued, the Third Circuit noted

that no court of appeals had adopted a standard for

applying the “similarly situated” test derived from

Rule 23. Zavala v. Wal-Mart Stores Inc.. 691 F.3d

527, 536 (3d Cir. 2012).

The only other authority concerning § 216(b) Ty-

son cites is 7B Wright & Miller, Federal Practice and

Procedure § 1807. Pet. Br. 27 n. 3. But Wright &

Miller state, “Most courts have held that the Rule 23

certification requirements do not apply in collective

actions” under § 216(b). Jd. at 479. The treatise

specifically notes that “courts also have held that

the ‘similarly situated’ standard is less stringent

than the requirement of Rule 23(b)(3), which speci-

fies that common questions of law and fact predom-

inate.” Jd. at 482.

B. Section 216(b) and Rule 23(b)(3) differ on their

face, in the scope of their application, and in their

operation. Nothing suggests that the same stan-

dards should apply under the distinct provisions. In

Genesis, this Court observed, “there are Significant

differences between certification{"] under Federal

Rule of Civil Procedure 23 and the joinder process

under §216(b).”._ 133 S.Ct. at 1527 n. 1. “Whatever

* The Court did, however, go on to state that “there is little

difference in the various approaches.” Jd. That is not correct

as we demonstrate in § I(D) infra.

* This Court did “not express an opinion on the propriety of

this use of class-action nomenclature” by some lower courts.

133 S.Ct. at 1527 n. 1.

12

significance ‘conditional certification’ may have in

§216(b) proceedings, it is not tantamount to class

certification under Rule 23.” Jd. at 1532. Indeed,

this Court observed, “Rule 23 actions are fundamen-

tally different from collective actions under the

FLSA.” Jd. at 1529.

Section 216(b) is a statutory provision‘ that origi-

nally applied only to actions brought to enforce the

FLSA. FLSA of 1938, Pub. L. No. 75-718, 52 Stat. 1060.

Subsequently, the Equal Pay Act was inserted into

the FLSA and the Age Discrimination in Employment

Act incorporated § 216(b). See 29 U.S.C. § 206(d) and

626(b). Thus, the procedures created by § 216(b) are

now available only in actions to enforce three federal

employment laws while Rule 23 potentially applies

to any action brought in federal court.

The policies embodied in the FLSA as well as the

two subsequently enacted employment laws incor-

porating § 216(b) appropriately infuse § 216(b)’s

construction in contrast to the relationship be-

tween substantive laws and Rule 23. This Court

has held that the provisions of the FLSA “are reme-

dial and humanitarian in purpose” and thus the

statute “must not be interpreted or applied in a

narrow, grudging manner.” Tenn. Coal, 321 U.S. at

597. This Court has recognized that in § 216(b)

“Congress has stated its policy that [FLSA, EPA,

and] ADEA plaintiffs should have the opportunity

to proceed collectively.” Hoffman-La Roche, 493

U.S. at 170. And this Court stated with specific ref-

* The Rules Enabling Act thus has no application to the con-

struction of § 216(b).

13

erence to § 216(b), “The broad remedial goal of the

statute should be enforced to the full extent of its

terms.” /d. at 173.

Not only does § 216(b) have a unique origin, dis-

tinct purpose, and narrower scope than Rule 23, the

procedures and standards created by Rule 23 are en-

tirely distinct from those embodied in § 216(b). Sec-

tion 216(b) provides:

An action... may be maintained against any employ-

er... by any one or more employees for and in behalf

of himself or themselves and other employees simi-

larly situated. No employee shall be a party plaintiff

to any such action unless he gives his consent in writ-

ing to become such a party and such consent is filed

in the court in which such action is brought.°

Section 216(b) does not contain any of the procedural

requirements contained in Rule 23(c)-(h)'’ or the sub-

* The section was amended in 1947, but Congress did not in

any way alter the “similarly situated” standard. The Senate

Report on the amendments made clear, “Collective actions

brought by an employee or employees (a real party in interest)

for and in behalf of himself or themselves and other employ-

ees similarly situated may continue to be brought in accor-

dance with the existing provisions of the act.” S. Rep. No. 48,

80th Cong., Ist Sess. 49 (March 10, 1947). The Conference Re-

port provided the same. H.R. Rep. No. 326, 80th Cong., Ist

Sess. 13 (April 29, 1947). Senator Donnell, chairman of the

drafting subcommittee, confirmed this intent on the floor. 93

Cong. Rec. 2,182 (1947).

'° Similarly, while Rule 23(f) authorizes courts of appeal to

permit an appeal from an order granting or denying class cer-

tification, the lower federal courts have held that an order

granting or denying a request to proceed as a collective action

14

stantive requirements contained in Rule 23(a) and (b).

Likewise, the substantive standard contained in §

216(b)—that the employees be “similarly situated” —

is not contained in any of the sections of Rule 23(a) or

(b). And the procedural requirement contained in §

216(b)—written consent to become a party plaintiff—

is not contained in any of the provisions of Rule 23.

There can also be no suggestion that the standards

and procedures in Rule 23 should be read into the

earlier-adopted § 216(b). The drafters of the 1966

amendments to Rule 23 that created (b)(3) classes

and placed the Rule in its current form specifically

stated that “the present provisions of 29 U.S.C. §

216(b) are not intended to be affected by Rule 23, as

amended.” Fed. R. Civ. P. 23, advisory committee's

note, reprinted in 39 F.R.D. 69, 104 (1966).”’ If the

Rule itself was not intended to alter construction of

§ 216(b) surely subsequent Supreme Court construc-

tion of the Rule, such as that in the cases relied on by

Tyson, was not either.

C. Congress adopted different standards under

Rule 23 and § 216(b) because an action maintained

under Rule 23(b)(3) and an action maintained under

§ 216(b) are distinct in highly significant respects.

under § 216(b) is not immediately appealable. See, ¢.g..

McElmurry v. U.S. Bank National Ass'n, 495 F.3d 1136, 1139-

40 (9th Cir. 2007).

'' In the Court of Appeals, Tyson erroneously argued that

Rule 23 actually “governs” FLSA actions, Br. For Appellant at

38 n. 7, failing to cite controlling precedent granting a writ of

mandamus directing a district court to vacate an order certify-

ing a Rule 23 class in an FLSA action. Schmidt v. Fuller Brush

Co., 527 F.2d 532 (8th Cir. 1975).

15

First, an action that proceeds as a class action un-

der Rule 23(b)(3) includes all persons within the de-

scription of the class who do not opt out while an

action that proceeds under § 216(b) includes only

those persons who consent in writing to be a party

plaintiff. As this Court observed in Genesis:

a putative class acquires an independent legal sta-

tus once it is certified under Rule 23. Under the

FLSA, by contrast, ‘conditional certification’ does

not produce a class with an independent legal sta-

tus, or join additional parties to the action. The

sole consequence of conditional certification is

the sending of court-approved written notice to

employees. whointurn become parties to a col-

lective action only by filing written consent with

the court.

133 S.Ct. at 1530. Thus, courts need not be concerned

about binding absent class members who have not

consented to join an action under § 216(b).

Second, the filing of an action as a class action un-

der Rule 23 stays the running of the statute of limita-

tions for all persons within the description of the

class while the filing of an action as a collective ac-

tion under § 216(b) does not do so. Compare Crown,

Cork & Seal, Inc. v. Parker, 462 U.S. 345, 353-54

(1983), with 29 U.S.C. § 256 (FLSA action is not com-

menced for tolling purposes for any person, even

those specifically named in the original complaint,

until written consent is filed).

Third, in an action maintained under Rule 23, ab-

sent class members are not considered full parties

while under § 216(b) each person who files written

16

consent becomes a “party plaintiff.” The Eleventh

Circuit observed, “by referring to them as ‘party

plaintiff[s}’ Congress indicated that opt-in plain-

tiffs should have the same status in relation to the

claims of the lawsuit as do the named plaintiffs.’”

Morgan v. Family Dollar Stores, Inc., 551 F.3d

1233, 1259 n. 35 (11th Cir. 2008). Thus, one district

court observed that under § 216(b) “Plaintiffs

are not absent members of a Rule 23 class action,

but opt-in plaintiffs under § 216(b) of the FLSA.

Having opted into the litigation, [plaintiffs] are not

‘passive’ in the same sense as absent Rule 23 class

members.” Luna v. Del Monte Fresh Produce

(Southeast), Inc., 2007 U.S. Dist. LEXIS 36893 at

*22 (N.D. Ga., 2007). In some jurisdictions, plain-

tiffs’ counsel is required to amend the complaint to

add all the individuals who file consent forms as

plaintiffs and state claims on their behalf. “Sec-

tion 216(b) operates in conjunction with Rule 8 of

the Federal Rules of Civil Procedure and requires

the employee to name the individual plaintiff and

allege his or her cause of action in the complaint.”

Harkins v. Riverboat Servs., No. 99 C 123, 2002

U.S.Dist. LEXIS 19637 at *16-17 (N.D. Ill., May 16,

2002). See also Becker v. Southern Soils, No. 6:06-

cv-Orl-28JGG, 2006 U.S. Dist. LEXIS 85111 at *2n.1

(M.D. Fla., Nov. 20, 2006). And in some jurisdic-

tions, each person who files a consent is subject to

party discovery (7.e., is obligated to respond to in-

terrogatories and requests for admissions and pro-

duction). See, e.g., Ingersoll v. Royal & Sunal-

liance USA, Inc., No. C05-1774-MAT, 2006 U.S.

Dist. LEXIS 50912 at 7-8 (W.D. Wash., July 25, 2006)

(“the Court is persuaded by the reasoning of courts

17

permitting individualized discovery of opt-in plain-

tiffs”); Coldiron v. Pizza Hut, Inc., No. CV03-

O5865TJHMCX, 2004 U.S. Dist. LEXIS 23610 at *4-5

(C.D. Cal., Oct. 25, 2004).

Finally, ina § 216(b) action, “decertification” should

result in severance of all party plaintiffs’ claims,

while after decertification of a Rule 23 class absent

class members must file new actions in order to pur-

sue their claims. Cf. Lee v. Cook County, 635 F.3d

969, 971 (7th Cir. 2011) (mis-joinder under Rule 20

results in severance).

D. For the foregoing reasons, the overwhelming

majority view is that Rule 23 standards should not be

used in applying § 216(b)’s “similarly situated” stan-

dard. See, e.g., Zavala, 691 F.3d at 536; Grayson v. K

Mart Corp., 79 F.3d 1086, 1096 n. 12 (11th Cir. 1996)

(“it is clear that the requirements for pursuing a §

216(b) class action are independent of, and unrelated

to, the requirements for class action under Rule 23”);

Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d

516,519 n. 1 (5th Cir. 2010) (“we have clearly held that

not all Rule 23 class action standards are applicable to

§ 216(b) actions”); O’Brien v. Ed Donnelly Enters..,

575 F.3d 567, 584 (6th Cir. 2009) (“Under the FLSA,

opt-in plaintiffs only need to be ‘similarly situated.’

While Congress could have imported the more strin-

gent criteria for class certification under Fed. R. Civ. P.

23, it has not done so in the FLSA.”)*

* Lower federal courts are unanimous in holding that the

decision to permit an action to proceed as a collective action

is reviewed using an abuse of discretion standard See, e.g.

Morgan, 551 F.3d at 1261-62.

18

The lower federal courts have specifically held that

Rule 23(b)(3)'s predominance requirement is not ap-

plicable to § 216(b) actions.'’ The Second Circuit

held that the question of whether employees are

“similarly situated” “is quite distinct from the ques-

tion whether plaintiffs have satisfied the much higher

threshold of demonstrating that common questions

of law and fact will ‘predominate’ for Rule 23 pur-

poses.” Myers v. Hertz Corp., 624 F.3d 537, 556 (2d

Cir. 2010). The Court continued, “we are easily able

to determine here that the higher predominance stan-

dard has not been met without addressing whether

the same evidence plaintiffs have put forward in sup-

port of Rule 23 class certification could satisfy the

lower standard” of “similarly situated.” Jd. The Sixth

Circuit held that “unless one excludes Rule 23 pre-

dominance from being an implicit requirement for §

216(b) collective actions,” the standard “is more de-

manding than what the statute requires.” O’Brien,

575 F.3d at 585. “[A}pplying the criterion of predomi-

nance undermines the remedial purpose of the [§

216(b)} collective action device.” Jd. at 585-86. The

Eleventh Circuit stated that § 216(b)’s similarly situ-

ated requirement “is considerably less stringent than

the requirement of [Rule 23(b)(3)] that common

questions ‘predominate. Grayson, 79 F.3d at 1096.

E. In the lower courts here, both parties well un-

derstood that different standards apply under Rule

23 and § 216(b). In fact, in contrast to its unsupport-

ed assertion in this Court, in the District Court, Ty-

'S Rule 23(b)(3) (and thus the predominance requirement)

did not exist in either 1935 or 1947 when § 216(b) was adopted

and amended.

19

son argued, “These class procedures in the FLSA and

Rule 23 are intentionally in contrast to each other.”

Defendant's Resistance to Plaintiffs’ Motion for Class

Certification at 6, Dkt. 45. Tyson there asserted that

there was a “fundamental inconsistency between the

opt-in provisions of the FLSA and the provisions of

Rule 23.” Jd.

In the District Court, Plaintiffs made two separate

motions—one for class certification under Rule 23

and another to proceed as a collective action under

§ 216(b). Plaintiffs’ Memorandum in Support of Mo-

tion for Rule 23 Class Certification, Dkt. 35; Plain-

tiffs’ Memorandum in Support of Motion for Condi-

tional Certification as a Collective Action, Dkt. 34.

Tyson filed two separate oppositions. Defendant’s

Resistance to Plaintiffs’ Motion for Class Certifica-

tion, Dkt. 45; Defendants Brief in Opposition to

Plaintiffs’ Motion for Conditional Certification as a

Collective Action, Dkt. 49. The moving papers and

the oppositions cited wholly distinct lines of cases.

As a result, the District Court properly analyzed

each issue separately. Pet.App. 69a-93a, 93a-110a.

In the Court of Appeals, Tyson acknowledged that

the Eighth Circuit had “not decided the proper test

for determining whether a plaintiff has carried his

burden to certify an FLSA class” and stated that “the

court need not decide the proper standard.” Br. for

Appellant at 37, 38 n. 7. Not until the case reached

this Court did Tyson make the bald and unsupport-

able assertion that the standards are identical under

Rule 23(b)(3) and § 216(b).

This Court should hold that Tyson waived the §

216(b) issue.

20

II. The District Court Properly Certified the

Class Under Rule 23(b )(3 ) Despite Variations

in Hours Worked Among the “Gang Time”

Employees

A. Tyson concedes that all of the requirements for

certification of the class under Rule 23(b)(3) were sat-

isfied in this case except one: predominance. But in

arguing that the trial court erred in finding predomi-

nance, Tyson effectively changes the requirement

from one requiring that common questions predomi-

nate to one requiring that all questions be common.

At the certification stage, the District Court correct-

ly described the non-common questions that existed

and correctly weighed them against the common ques-

tions as part of the predominance inquiry. The Court

found in its initial certification order, “Individual ques-

tions may exist, but the court does not believe they

predominate.” Pet.App. 109a. The Court did not reach

that correct conclusion by assuming that the individu-

al questions could be answered “with statistical tech-

niques that presume all class members are identical to

the average observed in a sample” as Tyson suggests.

Rather, the Court reasoned that while the damage

questions were not wholly common to all members of

the class, neither were they wholly unique to each in-

dividual. The Court found that all the employees “wear

some sort of PPE [Personal Protective Equipment],

and all store their PPE in the same lockers, at the same

plant, and all are required to don and doff their PPE.”

Pet.App. 99a. The Court reasoned:

(A]Jmong gang time paid employees, the evidence

only shows factual differences regarding the spe-

2}

cific PPE these employees wear and the tools they

carry. The court does not feel these differences ne-

cessitate individualized inquiry to prove a viola-

tion because most all gang time employees wear at

least the same basic PPE and use some kind of

knife or tool. Moreover, there is not an indefinite

amount of PPE to don and doff or tools to be used,

and thus the factual variations between employees

paid via gang time are limited.

Pet.App. 100a-10la. In other words, the District

Court concluded that proof of time worked could

not be via wholly common evidence, but neither

would it require separate evidence for each employ-

ee. On that basis, the Court correctly found pre-

dominance.

Predominance does not require that there be no

individual questions. “Rule 23(b)(3), however, does

not require a plaintiff seeking class certification to

prove that each ‘elemen(t] of [her] claim [is] sus-

ceptible to classwide proof.’ What the rule does

require is that common questions ‘predominate

over any questions affecting only individual [class]

members.” Amgen, 133 S.Ct. at 1196 (quoting Rule

23(b)(3)). The question is not whether any non-

common issues exist, the question is whether there

is “‘some fatal dissimilarity’ among class members

that would make use of the class-action device inef-

ficient or unfair. /d. at 1197 (emphasis added).

That was clearly not the case here.

Relying on a single sentence in Comcast Corp. v.

Behrend, 133 S.Ct. 1426 (2013), Tyson argues that,

even if common questions predominate, the need for

individualized damage calculations precludes certifi-

9)

as

cation. But nothing in the text of Rule 23(b)(3) sug-

gests that result and the single sentence in Comcast

cannot be read as such a holding. Rather, the single

sentence - “Questions of individual damage calcula-

tions will inevitably overwhelm questions common

to the class” — applies only to the facts of that case.

Id. at 1433. As Justice Ginsburg pointed out, as a

general proposition,

Recognition that individual damages calcula-

tions do not preclude class certification under

Rule 23(b)(3) is well nigh universal. See 2 W.

Rubenstein, Newberg on Class Actions § 4:54, p.

205 (5th ed. 2012) (ordinarily, ‘individual

damage(|s] calculations should not scuttle class

certification under Rule 23(b)(3)’). Legions of

appellate decisions across a range of substan-

tive claims are illustrative.

Id. at 1437 (Ginsburg, J., dissenting).

A simple example demonstrates that Tyson over-

reads Comcast. Imagine every employee spends a

different amount of time donning and doffing protec-

tive garments. But imagine Tyson had kept accurate

time records of all hours worked. There would still

be “|qjuestions of individual damage calculations,”

but it is clear that they would not “inevitably over-

whelm questions common to the class” because the

questions would be easily answered. Thus, Comcast

cannot possibly stand for the categorical proposition

advanced by Tyson.

Because it overreads the sentence in Comcast, Ty-

son focuses exclusively on the one factual question it

claims is not common to all members of the class—

23

the number of hours worked each week.’* But the

predominance standard cannot be answered without

also considering the common questions and then

comparing the two. By doing so, the District Court

correctly found predominance.

B. Tyson's argument is actually not about class

certification at all. Tyson's argument is about the

quality of evidence introduced at trial. This is clear

from the very terms in which Tyson framed the ques-

tion presented—whether a trial court may certify a

class “where liability and damages will be determined

with statistical techniques that presume all class

members are identical to the average observed in a

sample.” Pet. Br. i. Liability and damages are not

“determined” until trial. In this case, as Plaintiffs

demonstrate, the jury found liability and assessed

damages based on representative evidence, together

with other forms of proof, that permitted a reason-

able inference concerning the damages suffered by

each class member. There was no “presumption.”

But even if the District Court had permitted liability

and damages to be proven at trial with evidence ad-

mitted based on such a presumption, it might have

constituted an error in the admission of the evidence

or the failure to grant a motion for a directed verdict

or anew trial,"® but it would not have undermined the

ruling granting class certification.

‘* Tyson argues that there are other individual questions,

such as whether some employees were paid for start and end

of the day activities, but not only are such employees not “gang

time” employees and thus not class members, Tyson's payroll

records make answering those questions simple.

‘© This was Tyson's first and primary argument in the Court

24

At trial, Tyson proposed and the judge gave an ap-

propriate instruction on representative proof. Final

Instruction 10 read:

(I]f some employees testify about the activities they

performed orthe amount of unpaid time they worked,

other non-testifying employees who performed sub-

stantially similar activities are deemed to have shown

the same thing by inference. This kind of evidence

called [sic] ‘representative evidence. . [T]he weight

to be accorded the evidence is a function not of its

quantity, but of its quality — whether the testimony

covers similarly situated workers, and is generally

consistent. You may also consider whether the wit-

nesses who testified worked in or with similar posi-

tions and similar departments as the non-testifying

employees; whether they wore similar sanitary

and protective items; whether the testifying em-

ployees performed donning and doffing activities

simuarly to non-testifying employees.

of Appeals. Tyson's arguments that “Judgment as a matter of

law should have been granted to Tyson because Plaintiffs

failed to prove overtime liability on a class-wide basis” and

that “because Plaintiffs’ trial-by-formula approach was im-

proper’ and parallel argument that the District Court erred by

not granting a new trial consumed 20 of the 27 pages of argu-

ment in its Brief and all but three pages in its Reply Brief. Br.

for Appellant at 19-38; Reply Br. for Appellant at 4-30. Here,

Tyson has improperly recast its argument about the inadequa-

cy of the evidence at trial as an attack on class certification in

order to avoid the “two court rule.” See, e. g., Graver Tank &

Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275 (1949)

(“A court of law, such as this Court is, rather than a court for

correction of errors in fact finding, cannot undertake to review

concurrent findings of fact by two courts below.”)

25

J.A. 472 (emphasis added), 93 (Tyson's proposal). Jf

the Plaintiffs’ evidence did not meet that standard as

a matter of law, Tyson could have so argued to the

jury,’* moved for a directed verdict and, if the motion

was denied, appealed. In fact, Tyson did all of those

things. But a failure of proof at trial does not infect

the certification decision.

Tyson's argument is about the quality of the trial evi-

dence: “the lower courts then compounded their error

by allowing plaintiffs to ‘prove’ injury and damages on

a classwide basis with statistical sampling that masked

these individual differences.” Pet. Br. 19. Plaintiffs

demonstrate that there was no such error, but, even as-

suming there was, the error was at trial and is not rel-

evant to certification or decertification of the class.

Tyson and its amici are wrong when they argue that

alleged flaws in the trial evidence undermine the orig-

inal certification decision or should have constituted

grounds for decertification. See, e.g., Dow Br. 9 (“Once

a class is certified, the practical realities of trial mean

that such individualized differences among class mem-

bers will never be examined.”) The trial court ac-

knowledged the existence of questions not common

to all members of the class in its certification decision

and, as Plaintiffs demonstrate, those questions were

examined at trial and Tyson had every opportunity to

explore them more fully. This Court need not alter the

standards for certification in order to insure compe-

tent evidence is introduced at trial.

'° As this Court recognized in Intl Brotherhood of Team-

sters v. U_S., 431 U.S. 324, 340 (1977), “statistics are not irrefut-

able; ... they may be rebutted.”

26

C. Appellate courts must review the certification

decision from the perspective of the trial judge. A

trial judge cannot know what evidence plaintiffs will

offer to prove each element of their claim. In fact,

plaintiffs’ counsel cannot be expected to know, at

the certification stage, what evidence they will prof-

fer at trial. A trial judge can and should assess the

common questions of law and fact and weigh them

against the “questions affecting only individual mem-

bers” of the putative class and in doing so a trial judge

can and should consider the various ways in which

the latter could be presented.

Thus, it is critical to recognize that while Tyson ar-

gues correctly that “Plaintiffs. . must show that they

worked more than 40 hours without receiving over-

time compensation,” Tyson is incorrect when it states

that “(t]he latter showing cannot be made with com-

mon evidence because individual class members

wear different combinations of personal protective

equipment that take varying amounts of time to don,

doff, and rinse.” Pet. Br. 19. That is incorrect or, at

best, a gross overstatement, because there is no dis-

pute about the fact that much of the protective cloth-

ing worn by employees was common as were many

of the other start and end of day activities and the

requirement of walking. For that reason, the District

Court correctly concluded that Plaintiffs could pres-

ent proof concerning the not fully common questions

at trial without overwheiming the common ques-

tions, i.e., that the latter predominated.

Plaintiffs’ opening brief demonstrates that the proof

actually introduced at trial both confirmed the District

Court's earlier finding that the common questions pre-

27

dominated and provided a sufficient basis for the jury's

verdict. Rather than reiterate that argument, we dem-

onstrate here that there were, in fact, numerous ways

in which Plaintiffs could have proven damages with-

out the individual questions overwhelming the com-

mon questions and thus that the District Court's find-

ing of predominance was correct.

The parties stipulated that all “gang time” employ-

ees are required to wear Some common items of pro-

tective clothing for safety and sanitation purposes.

J.A. 119, § 19, 249-50. Further, all processing employ-

ees wear a frock and all Slaughter employees a light-

color shirt and pants and an apron. J.A. 119, 150, 233.

Tyson acknowledges in its brief that the specific

items of protective clothing required in each unique

position in the plant are listed at J.A. 125-38. Pet. Br.

10. See also J.A. 162-64, 241-42. All the unique posi-

tions in the plant (e.g., “Gut hogs”) are listed on the y

axis and each of the unique pieces of protective cloth-

ing employees in each position are required to wear

are listed on the x axis (e.g., “shin guards”). The

chart reveals that there are only 14 unique pieces of

protective clothing, J.A. 125-38, 163, see also J.A. 74-

85, 118-19, of which only 11 were actually worn by

employees at the plant. J.A. 163. Using representa-

tive proof to demonstrate how long it takes to put on

and take off each item, it would have been mechani-

cal to calculate damages for each individual based

simply on their position, their wage rate, and Tyson's

time and attendance records,'’ even assuming that

‘" In the Court of Appeals, dissenting Judge Beam found that

Tyson maintained “adequate attendance, assignment, equip-

ment, work time and payroll records.” Pet. App. l21la.

28

there are more than 420 positions as Tyson suggests.

Pet. Br. 4."°

Proof of damages did not require that each em-

ployee who wore a particular type of protective

garment testify about how long it took him or her

to don and doff the garment. Testimony from a

representative sample of employees required to

wear each protective garment would have suf-

ficed.'* For example, if three representative em-

ployees testified about each of the 11 unique gar-

ments, there would only have been 33 witnesses

and, given the simple nature of the testimony (e.g.,

“how long did it take you to put on and take off the

shin guards”), this testimony would not have been

burdensome for the court to receive. Alternative-

ly, an industrial engineer could have studied how

long it took a sample of employees to put on and

take off each unique garment.~”

‘* 420 appears to be the total number of positions and not

the total number of “gang time” positions.

' Tyson argues that “[n]o court would allow an individual

employee to meet his ‘burden of proving that he performed

work for which he was not properly compensated, ... by sub-

mitting evidence of the amount of time worked by other em-

ployees who did different activities requiring a different

amount of time to perform.” Pet. Br. 36. But surely any court

would permit representative testimony concerning how long it

took each employee to perform the same task rather than re-

quiring thousands of employees to each testify about how long

it took them to perform the task.

* This is what Tyson's own industrial engineers did to derive

the K-code time for each position. See J.A. 446-53. The “group

manager of industrial engineers for the Pork Division” de-

scribed this as “a very simple time study.” J.A. 452.

29

Plaintiffs could easily have proved the hours worked

by each employee at trial in any number of manners

(in addition to the manner actually used) that would

not have overwhelmed the fully common questions.

Thus, looked at from the certification stage, the Dis-

trict Court was correct when it concluded, “Tyson's

possible defenses _are not as individualized as Ty-

son wants the court to believe” and thus that the com-

mon questions predominated. Pet.App. 89a.

D. This Court's decision in Mt. Clemens, fully sup-

ports the foregoing argument, but the forms of repre-

sentative proof that were and could have been of-

fered in this case were proper regardless of whether

Mt. Clemens applies.

The Mt. Clemens Court recognized “that it is the em-

ployer who has the duty under § 11 (c) of the Act to

keep proper records of wages, hours and other condi-

tions and practices of employment.” 328 U.S. at 687.

Mt. Clemens further recognized that, in the absence of

such records, it may be difficult for employees to prove

both liability (because liability always depends to some

degree on the number of hours worked) and damages.

This Court reasoned that the employee “has the burden

of proving that he performed work for which he was

not properly compensated,” i.e., to prove liability, and

held that “[t]he remedial nature of this statute and the

great public policy which it embodies. . . militate against

making that burden an impossible hurdle for the em-

ployee.” /d. (emphasis added).

Tyson argues that Mt. Clemens’ holding does not

apply until after the employee has proven liability.”

“ Even accepted, this argument has extremely limited ap-

30

Similar to its reading of Comcast, Tyson does this by

taking a single sentence, indeed, in this case, a single

part of a sentence, out of context. Tyson points to

the following language: “an employee has carried

out his burden if he proves that he has in fact per-

formed work for which he was improperly compen-

sated.” Tyson argues that it is only after carrying that

burden that the employee can prove the amount of

damages he suffered with “sufficient evidence to

show the amount and extent of that work as a matter

of just and reasonable inference.” But such a reading

of Mt. Clemens would defeat its central hoiding.

When an employer has failed to keep records, it is no

less difficult for employees to prove they worked

over 40 hours in a work week than it is to prove how

many hours over 40 they worked. It would make no

sense and wholly undermine the rationale of Mt. Cle-

mens to demand exacting proof of the first 40.1 hours

worked but not of any additional hours.

Tyson's reading of Mt. Clemens is also inconsis-

tent with its actual holding. The evidence the court

of appeals found insufficient in that case was not

simply evidence of the amount of damage suffered,

but evidence that the FLSA was violated. The court

of appeals reinstated a master’s finding that “the

plaintiffs had not established by a fair preponder-

ance of evidence a violation of the {[FLSA].” 149

F.2d 461, 464 (6th Cir. 1945). That was the holding

reversed by this Court.

plicability here because it is undisputed that the vast majority

of “gang time” employees worked six days a week for at least

48 hours. J.A. 122, 181-82, 326, 437.

31

Finally, even accepting Tyson's reading of Mt. Clem-

ens, nothing in the single phrase Tyson cites suggests

that the employee cannot carry “his burden if he

proves that he has in fact performed work for which

he was improperly compensated” with competent evi-

dence of how long it took other similarly situated em-

ployees to perform the same tasks the employee per-

formed. In other words, competent representative

proof can be used to prove that an individual employ-

ee worked more than 40 hours per week and to prove

how many hours over 40 he or she worked per week

regardless of the ambit of Mt. Clemens’ holding.

Ill. The District Court Properly Certified the

Class Even Though It Was Possible That Not

Every Employee Would Recover Damages

The second question presented is “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.” Pet. Br. i. But in its

brief, Tyson argues that a court may certify a class only

if plaintiffs “show (1) that they can prove with common

evidence that all class members were injured, or (2)

that there is a mechanism for identifying the uninjured

class members and ensuring that they do not contrib-

ute to the size of the damages award and cannot re-

cover damages.” Pet. Br. 21 (emphasis added).

Plaintiffs demonstrate that the evidence intro-

duced at trial did “identify{] the uninjured class

members and ensur[e] that they d[id}] not contrib-

ute to the size of the damages award and cannot

32

recover damages.” The jury was specifically in-

structed that “[a]ny employee who has already re-

ceived full compensation for all activities you may

find to be compensable is not entitled to recover

any damages.” J.A. 481.~ We demonstrated in §

Il(C) supra that there were, in fact, multiple

“mechanism(s]” that could have been employed at

trial “for identifying the uninjured class members

(in this case] and ensuring that they do not con-

tribute to the size of the damages award and can-

not recover damages.” Thus, Tyson’s restated stan-

dard was clearly met here.

Tyson restates the question to avoid the untenable

suggestion that a class cannot be certified if some

members may ultimately not recover. To hold that a

class cannot be certified if it contains members who

might ultimately not sustain a claim that they have a

right to damages would read the predominance stan-

dard out of Rule 23. To so hold would be to conclude

that proof of injury must always be common. That

would be inconsistent with the plain text of Rule 23

which makes plain that there may be some “ques-

tions affecting only some [class] members” and does

not limit the subject matter of those questions. Rule

23(b)(3).

A no answer to Tyson's original question would be

starkly inconsistent with the predominance standard

because it would mean that if there is any non-com-

mon issue that might preclude some class members

= Because Tyson filed its notice of appeal before there was any

allocation of the jury award to individual class members, it surely

camot argue uninjured class members received damages.

33

from prevailing, certification cannot be granted. In

other words, it suggests that the only question that

cannot be common is the amount of damages owed

each class member. Nothing in Rule 23 supports

such a contention.

In fact, accepting Tyson’s argument would pre-

clude certification in almost all cases because unique

deficiencies of proof and unique defenses are possi-

ble, even likely, in almost all cases. This Court con-

cluded in Halliburton Co. v. Erica P. John Fund,

Inc., 134 S.Ct. 2398, 2412 (2014), that the fact that

“defendant might attempt to pick off the occasional

class member here or there through individualized

rebuttal” does “not render class certification inap-

propriate.” See also Kohen v. Pacific Investment

Management Co., 571 F.3d 672, 677 (7th Cir. 2009)

(“Such a possibility or indeed inevitability does not

preclude class certification.”); In re Nexium Anti-

trust Litigation, 777 F.3d 9, 22 (1st Cir. 2015) (“ex-

cluding all uninjured class members at the certifica-

tion stage is almost impossible in many cases”).

IV. The District Court Properly Permitted the

Action to Proceed as a Collective Action

Under § 216(b)

If this Court decides that Tyson has not waived

the argument that the District Court abused its dis-

cretion by permitting the action to proceed as a col-

lective action under § 216(b), it should nevertheless

reject the argument based on its conclusion that

Plaintiffs satisfied the more demanding standards

of Rule 23(b)(3) as explained in §§ II and III supra.

And even if this Court finds it necessary to further

34

construe the “similarly situated” standard despite

the complete absence of any colorable argument by

Tyson as to its meaning, this Court should conclude

that the District Court did not abuse its discretion

in holding that the “gang time” employees were sim-

ilarly situated.

Each of the criteria identified by courts of ap-

peals applying the similarly situated standard sup-

port the District Court’s conclusion. First, the

“gang time” employees are “employed in the same

corporate department, division, and location.” Za-

vala, 691 F.3d at 537. Second, the employees have

similar but not identical “job requirements” and

“pay provisions.” Morgan, 551 F.3d at 1259-60.

Third, the employees “advance similar claims.”

Zavala, 691 F.3d at 537. Fourth, the employees

were “subjected to some common employer

practice[s] that, if proved, would help demonstrate

a violation of the FLSA.” /d. at 538. Fifth, the em-

ployees “claims were unified by common theories

of defendants’ statutory violations.” O’Brien, 575

F.3d at 585. Sixth, the employees “seek substan-

tially the same form of relief.” Zavala, 691 F.3d at

537. Seventh, the “defenses were not so individu-

ally tailored to each Plaintiff as to make [the] col-

lective action unwarranted or unmanageable.”

Morgan, 551 F.3d at 1263. Finally, the employees

are similarly situated even though “proof of a vio-

lation as to one particular plaintiff does not prove

that the defendant violated any other plaintiff's

rights under the FLSA.” O’Brien, 575 F.3d at 585.

35

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

LYNN K. RHINEHART

Haro_p CRAIG BECKER

(Counsel of Record)

YONA ROZEN

815 Sixteenth Street, NW

Washington, DC 20006

(202) 637-5310