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

Supreme Court brief2015

Ask Donna

What actually matters in this document.

Text

No. 14-1146

IN THE

Supreme Court of the United States

TYSON FOODS, INC.,

Petitioner,

PEG BOUAPHAKEDO, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

AMICUS CURIAE BRIEF OF BRAUN AND

HUMMEL IN SUPPORT OF RESPONDENTS

Michael D. Donovan

DONOVAN AXLER, LLC

1055 Westlakes Drive

Suite 155

Berwyn, PA 19312

(610) 647-6067

Judith L. Spanier

ABBEY SPANIER, LLP

212 East 39th St.

New York, NY 10016

(212) 889-3700

Robert S. Peck

Counsel of Record

CENTER FOR

CONSTITUTIONAL

LITIGATION, P.C.

777 6th Street N.W.

Suite 520

Washington, DC 20001

(202) 944-2874

robert.peck@cclfirm.com

Attorneys for Amici Curtae

TABLE OF CONTENTS

ee te has cortrtideciessnilin cceasdesnins-ateinis i

A Ee Ge CE innicticcanksiecacesssasciveocineveinns inl

INTEREST OF AMICI CURIAE.................::c00:ccc0000+ l

INTRODUCTION AND SUMMARY OF

REET nne rc Me Ree AnC NODE 3

ERAS ATE ANE TRS CR ME neta tt We EC 6

I. When Employers Spoliate or Fail to

Maintain Business Records, an Adverse

Inference Is Required..............000000:.ccccccccececeeees 6

Il. This Court Has Applied a “Just and

Reasonable Inference’ Standard for

Damages in Dozens of Different Cases,

Including Class Actions, for More Than

REAR CE AT AED EET OE er ee Re ee 13

III. Where Employers and _ Businesses

Regularly Rely On Business Records,

Class Claimants May Also Rely On

Such Records as Proof at Trial. ..................... 17

A. Statistical evidence is routinely

admitted in class actions..................... 19

1. Be I I ac rcieasisccciccecccess 21

2. Employment

discrimination. .......................... 23

a. pS SESSEI STS as ONO oO SRE 23

4. IRS ti 24

5. IES SSE ER 25

6. Housing discrimination............ 25

a Businesses use statistical

evidence in litigation. ............... 26

8. Businesses use statistics

RI CIN sacicciptnerstcsonnimiacnion 27

B. Tyson waived its objection to

statistical evidence and had the

opportunity to cross-examine

I sceepidenanentinbee 27

IV. Trial Courts Must Have Sufficient

Discretion to Control Redundant

Evidence Given Common Proof of a

Corporate-Wide Practice. ................ccccceeeeeees 30

I a ciuhaceieieininiatemmedinuen 34

III, siitecundicontnnecticenitcenaiie pieisditcniveiiinduhdiatehicnenite

TABLE OF AUTHORITIES

Cases

Abdullah v. United States Securities

Associates, Inc., 731 F.3d 952 (9th

Cir. 2013), cert. denied, 135 S. Ct. 53

a eeeeemonnaicus

Allapattah Services, Inc. v. Exxon Corp.,

333 F.3d 1248 (11th Cir. 2003), aff'd,

BOS UB. GEG CRIB) ....n....0.ccnccccccseess.

Alvarez vu. City of Chicago, 605 F.3d 445

ele ee eae

Alvarez vu. IBP, Inc., 339 F.3d 894 (9th Cir.

2003), aff'd, 546 U.S. 21 (2005) .........

Amchem Products, Inc. v. Windsor, 521

a er eT

Amgen, Inc. v. Connecticut Retirement Plan

& Trust Funds, 133 S. Ct. 1184

SID taicaadddninimieconabinnsdienttaamnoasmcenins

Anderson v. Mount Clemens Pottery Co..,

ee Oe I, GP CR oc isincatindnscnesctenessosss

Armstrong v. Manzo, 380 U.S. 545 (1965)...

Automated Solutions Corp. v. Paragon

Data Systems, Inc., 756 F.3d 504

RS sk a Et

Beaven v. United States Department of

Justice, 622 F.3d 540 (6th Cir. 2010)

Bell v. Farmers Ins. Exchg., 9 Cal. Rptr. 3d

OG CARE, GR. BD, Bi scesscccestccsiscesctncncnaes 21

Bigelow v. RKO Radio Pictures, Inc., 327

CF es SP Ct ckcsrascensesnncnsecicdtesbansdacteaianenee 14

Braun v. Wal-Mart Stores, Inc., 106 A.3d

re A: BE xssciikisscictcnocecnseaaidiioinnenl passim

Braun vu. Wal-Mart Stores, Inc., 24 A.3d

ik , | Re __ } | SPREE 1, 7, 27

Bridge v. Phoenix Bond & Indemnity Co.,

Be UF a Gee GE ncmennscsnvecssicitadaisaisuniaaiguaienines 33

Brinker Restaurant Corp v. Superior Court,

SIS Fe BAe Ce. Bei vriinctctennnin 21.

Broussard v. Meineke Discount Muffler

Shops, Inc., 155 F.3d 331 (4th Cir.

DERI esnvccisivevdonsiscitducemplocsintdocaundoanmidiaast aakaaaae 33

Carnegie v. Household International, Inc.,

376 F.3d 656 (7th Cir. 2004)...........00....000000... 25

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

CD, I cicacs:sceasisccccndsnnsiceisiadsiesitaraataie mates meiatias 33

Castro v. United States, 540 U.S. 375

CIID isrciccccocscssnictstidenoessiohsnsislesasaunalieniauaabiidinans naan 28

Chambers v. NASCO, Inc., 501 U.S. 32

III vines sescesescasnvasnsciitecsensauedesteeiiiiadtaianaae 10

Commonwealth v. Laird, 988 A.2d 618 (Pa.

II oicccscsnescenitniesisiienmsuantaamandanineannn 30

Cooper vu Federal Reserve Bank, 467 U.S.

FE CII ic ecensiciscciniscnsscossessetonimedeealee uae 16

Dilts v. Penske Logistics, LLC, 267 F.R.D.

625 (S.D. Cal. 2010) ..........ccccccececsreeseeseeteessees 21

Eastman Kodak Co. v. Southern Photo

Material Co., 273 U.S. 359 (1927)........... 14, 15

Eisen v. Carlisle & Jacquelin, 417 U.S. 156

Til ssseasqanctnauanaennecaunsenastscseneocaess 32

Ellis v. Costco Wholesale Corp., 285 F.R.D.

492 (N.D. Cal. 2012)............ccccceceeesseeresteeeeeeees 23

Espenscheid v. DirectSat USA, LLC, 705

F.3d 770 (7th Cir. 2013)...............:cceee eee 22, 23

Fayerweather v. Ritch, 195 U.S. 276 (1904) ............ 17

Fujitsu Ltd. v. Federal Express Corp., 247

F.3d 423 (2d Cir. 2001) ..............ccceeeeseseeeeeeeees 11

Hansberry v. Lee, 311 U.S. 32 (1940)... cee 17

Harmsen v. Smith, 693 F.2d 932 (9th Cir.

eT setmmnnnmnnconseanccnsoces 25

Harvis v. Roadway Express Inc., 923 F.2d

59 (6th Cir. 1991) .........cccccceeeeesceeeeeneeeseeenees 29

Hetzel v. Baltimore & Ohio Railroad Co.,

TT Te, TD CID cencccccececessscevecccceseses cones 14,15

14I Limited Partnership v. Microsoft Corp.,

598 F.3d 831 (Fed. Cir. 2010) ...................6. 26

Iliadis v. Wal-Mart Stores, Inc., 922 A.2d

710 ON.J. BOOT) ...............cceccercreccerceeseeceereens 8, 32

In re Monumental Life Insurance Co., 365

F.3d 408 (5th Cir. 2004)...............eee mbit 25

In re Neurontin Antitrust Litigation, Nos.

02-1830 & 02-2731, 2011 WL 286118

fk FS | AUR e eee 20, 24

In re Scrap Metal Antitrust Litigation, 527

F.3d 517 (6th Cir. 2008), cert. denied,

SEG U.S. 11GB (CROOGD)..........ccrcosesccscsssessesees 16, 23

In re Visa Check / Mastermoney Antitrust

Litig., 280 F.3d 124 (2d Cir. 2001),

disapproved in part on other grounds

by, In re Initial Public Offering Sec.

Litig., 471 F.3d 24 (2d Cir. 2006) ................. 24

J. Truett Payne Co. v. Chrysler Motors

Corp., 451 U.S. 557 (1961)...................s00s000000 10

Johnson v. Meriter Health Services

Employee Retirement Plan, 702 F.3d

YL RR ee el etait 7

Kelly v. County of Allegheny, 546 A.2d 608

RRR ns Se RE Te 32

Kriner v. Dinger, 147 A. 830 (Pa. 1929)................... 29

Kronisch v. United States, 150 F.3d 112 (2d

a eee 11, 12

Lavin-McEleney v. Marist College, 239 F.

ee ee ee i cnninderenencnccnencenedeiennatl 23

Mathews v. Eldridge, 424 U.S. 319 (1976)............... 32

MBIA Insurance Corp. v. Countrywide

Home Loans, Inc., 958 N.Y.S.2d 647,

2010 WL 5186702 (N.Y. Sup. Ct.

McLaughlin v. American Tobacco Co., 522

F.3d 215 (2d Cir. 2008) .................000000

Meijer, Inc. v. Warner-Chilcott Holdings

Co. III, Ltd., 246 F.R.D. 293 (D.D.C.

Micron Technology, Inc. v. Rambus Inc.,

645 F.3d 1311 (Fed. Cir. 2011)..............

Morgan v. Family Dollar Stores, Inc., 551

F.3d 1233, 1272 (11th Cir. 2008),

cert. denied, 558 U.S. 816 (2009)...........

Mount Holly Gardens Citizens in Action,

Inc. v. Township of Mount Holly, 658

F.3d 375 (Sd Cir. 2011) ...................000040:

Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306 (1950).........................

Mullins v. Direct Digital, LLC, 795 F.3d

i Lk AS eee

Occidental Land, Inc. v. Superior Court,

134 Cal. Rptr. 388 (Cal. 1976)...............

Perez v. Mountaire Farms, Inc., 650 F.3d

350 (4th Cir. 2011), cert. denied, 132

Be ee A I enbieticcitnscciecinnsdiminicnienne

Phillips Petroleum Co. v. Shutts, 472 U.S.

Fe ee eiceeeervadrestegneteneiencnnmmemninns

Ramos v. SimplexGrinnell LP, 796 F. Supp.

PN 6 ee) ea

aah 25

Vill

Ratanasen v. State of California

Department of Health Services, 11

F.3d 1467 (Sth Cir. 19938)...............cc.c..cccccocveee 26

Reich v. IBP, Inc., No. 88-2171, 1996 WL

137817 (D. Kan. Mar. 21, 1996), aff'd

sub nom., Metzler v. IBP, Inc., 127

F.3d 969 (10th Cir. 1997)................................. 5

Residential Funding Corp. v. DeGeorge

Financial Corp., 306 F.3d 99 (2d Cir.

Reyes v. Netdeposit LLC, No. 14-1228, 2015

WL 5131287 (3d Cir. Sept. 2, 2015) .............. 31

Rikos v. Proctor & Gamble, No. 14-4088,

2015 WL 4978712 (6th Cir. Aug. 20,

RR Ra EE eS al aa 8 Als Ea os Ro 34

Roper v. Consurve, Inc., 578 F.2d 1106 (5th

Se GRRE Sacer ae eee 25

Salvas v. Wal-Mart Stores, Inc., 893 N.E.2d

Se GIN IIIT icciccscncensininiondebdanstenbaeiebinc 8, 32

Samuel-Bassett v. Kia Motors America,

Inc., 34 A.3d 1, 29 (Pa. 2011), cert.

dented, 133 S. Ct. 51 (20122)........................... 30

Sav-on Drug Stores, Inc. v. Superior

Court, 17 Cal. Rptr. 3d 906 (Cal.

Silvestri v. General Motors Corp., 271 F.3d

I i cei alle 11

Smulow v. Southwestern Bell Mobile

System, Inc., 323 F.3d 32 (1st Cir.

Sperling v. Hoffman-La Roche, 24 F.3d 463

Steiner v. Mitchell, 350 U.S. 247 (1956) ..........

Siory Parchment Co. v. Paterson

Parchment Paper Co., 282 U.S. 555

Na scikdeticaieteieshdhaiciieeitnbaiubiiiinicasiiapenipeinaniue

Texaco, Inc. v. Hasbrouck, 496 U.S. 543

Texas Department of Housing &

Community Affairs v. Inclusive

Communities Project, Inc., 135 S. Ct.

I iccisesscassdusiuinatansedaieveceicnomstadenseiis

The Bermuda, 70 U.S. 514 (1865)......000.000.......

United States Department of Labor v. Cole

Enterprises, 62 F.3d 775 (6th Cir.

SEE bonciscnsiicndcanicsihiintiieiarinetnsinunensiidemmees

United States v. Sharp, 400 Fed. Appx. 741

(4th Cir. 2010), cert. denied, 562 U.S.

i ccinesdenictiviinintniisiapnbbintpohemiiionnpett

Vazquez-Corales v. Sea-Land Services, Inc.,

172 F.R.D. 10 (D.P.R. 1997)...................

Wallace B. Roderick Revocable Living Trust

vu. XTO Energy, Inc., 281 F.R.D. 477

en ge

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

IE ccccuisintciibhcacnieriidegiinaantbnineans 23, 31, 32

Wal-Mart Stores, Inc. v. Visa USA, Inc.,

396 F.3d 96 (2d Cir. 2005) ............... eee 24

West v. Goodyear Tire & Rubber Co., 167

¢ be] 1: 2 en 11

Statutes

Be Ra Oe IID scisicsciessitssrndcinbssiccnieoanaediiactdciaainidliiaipltabaca 4

a Pete i sciseisin ais seaieindcetienlapinnnationiensandanielbamnas 4

es ee Se eteriicecnsiineinaieiasaibiniinincinntiupintes 3, 6, 7, 29

Se rs Oe a iisiscicsnivtninacimeiniccmcasionsebaneiiiien 25

I i I, Be ri iietnentnscnicnsnctinadicnapesiniininentionn 4

Rules

8 RR ES eeere rere 6, 7, 29, 34

i Fs I ieccccensdanserncnpnentnsranininienies 3, 4, 9

| SERIE RSE SU een rere ener e nerve Rr ee weye l

Other Authorities

Barclay, Michael & Frank C. Torchio, A

Comparison of Trading Models Used

for Calculating Aggregate Damages

in Securities Litigation, 64 Law &

Contemp. Probs. 105 (2001)..................0600 24

Barrington Wolff, Tobias, Discretion in

Class Certification, 162 U. Pa. L.

Re CE eiceiicheseuncnhinnenisecencnnnes

Erbsen, Alan, From “Predominance” to

“Resolvability”: A New Approach to

Regulating Class Actions, 58 Vand.

ib BG SUN III senscchictcntetitebeiastiseninns

Gorelick, Jamie S., et al., Destruction of

ERE RS Aa:

Manual for Complex Litigation (Ath ed.).......

Moller, Mark, Class Action Defendants’

New Lochnerism, 2012 Utah L. Rev.

a a

Newberg, Herbert B. & Alba Conte,

Newberg on Class Actions (4th ed.

SUI hissincranionicasiciedepuleninnipiadosetniciiediniions

isin 20

INTEREST OF AMICI CURIAE'

Amict curiae are current and _ former

Pennsylvania employees (“Employees”) of Wal-Mart

Stores, Inc. and Sam’s Club (“Wal-Mart”) who

experienced systemic wage theft by Wal-Mart during

the period 1998 through 2006. In 2002, Employees

filed a wage-and-hour class action against Wal-Mart

in Pennsylvania claiming, among other things, that

Wal-Mart’s centralized “Preferred Scheduling

System’ —which staffed the stores not by the man-

hours required to do the job but instead by the total

Wage expense necessary to improve store profits

year-to-year—imposed such payroll pressure and

understaffing that hourly employees had to work

through their promised paid breaks and off-the-clock.

After Employees prevailed at trial, in the

Pennsylvania Superior Court, Braun v. Wal-Mart

Stores, Inc., 24 A.3d 875 (Pa. Super. 2011),? and in

the Pennsylvania Supreme Court, Braun v. Wal-

Mart Stores, Inc., 106 A.3d 656 (Pa. 2014), Wal-Mart

' Letters of consent from the parties to the filing of

all amicus briefs have been filed with the Clerk of Court.

Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for a party authored any part of this brief, nor did

any person or entity other than amici, their members, or

their counsel make a monetary contribution to its

preparation or submission.

2 Michelle Braun and Dolores Hummel were

named representatives of separately filed plaintiff classes,

consisting of Wal-Mart employees and making similar

allegations. The two class actions were consolidated for

trial in the Pennsylvania courts.

filed two petitions for certiorari in this Court,’

claiming that Employees’ reliance on Wal-Mart's own

employment and wage policies, as well as its

regularly maintained business records and internal

audits, somehow denied the company due process

and that allowing the jury to draw an adverse

inference from the period when Wal-Mart stopped

keeping those records, specifically in anticipation of

litigation, amounted to an improper “Trial by

Formula,” arguments emphatically rejected by the

Pennsylvania Supreme Court. Jd. at 665. Those

Petitions are still pending before this Court.

Remarkably, Wal-Mart has filed an amicus

curiae brief in support of Petitioner Tyson Foods,

Inc., that elides Wal-Mart's own spoliation of

evidence and unabashedly argues that arithmetic

extrapolations from existing corporate time records

may never be used by employees—whether

individually, collectively, or in a class action—to

prove the hours for which the employees were not

paid.

To rebut Tyson’s and its amici’s misstatement

of what actually happens in these cases and Wal-

Mart’s imaginative retelling of its experience in

Employees’ litigation, Employees submit this amicus

brief.

3 The largely identical petitions seek certioran

separately from the decision of the Pennsylvania Supreme

Court (No. 14-1124), as well as an issue decided by the

Pennsylvania Superior Court (No. 14-1123) that the

Pennsylvania Supreme Court declined to take up.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Wage theft happens. Tyson tells this Court

that “Rule 23(b)(3) does not authorize an award of

damages to individuals who were not harmed simply

because their claims are aggregated with others who

were.” Pet. 4. But the damages owed by Tyson here

have nothing to do with Federal Rule of Civil

Procedure 23(b)(3). Instead, the damages arose out of

substantive labor law principles that permit a “just

and reasonable inference,” where, as here, an

employer has failed to keep “adequate and accurate”

records of all hours worked. Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 686-87 (1946), superseded

by statute on other grounds, Portal-to-Portal Act of

1947, Pub. L. No. 49-52, § 5, 61 Stat 84, 87 (May 14,

1947) (codified at 29 U.S.C. § 216(b)).

Had Tyson maintained such records for all

donning and doffing work times, as they are required

by law and a permanent injunction to do, the parties

would have had precise and _ individualized

quantification of the wages owed to each worker.

Tyson's failure to keep such records meant that the

workers, individually and collectively, had to present

substitute evidence of the uncompensated work

times. Had each of the workers proceeded with an

individual case, they each would have had to provide

the same substitute evidence—a time and motion

study—to meet the “just and reasonable inference’

standard. Presenting that same study in replicated

proceedings before 2,300 separate juries at 2,300

separate trials would not and could not implicate

Rule 23(b)(3), as Tyson would nevertheless contend

that the time and motion study was flawed and could

not be used. Hence, Tyson’s real complaint is not

about Rule 23(b)(3) or the class proceedings below; it

is about the Court’s jurisprudence under Anderson,

and the adverse inferences courts and juries are

permitted to draw from an employer's failure to keep

records of all hours worked. This Court should not

interpret Rule 23 to alter or abridge these

longstanding and oft-stated principles of civil

damages law, particularly as they apply to labor law.

Thus, Petitioner and its amici misstate the

issues involved in this case. Properly understood, the

sole issue is one of federal and state labor law, to wit,

whether an emplover who fails to keep adequate or

accurate records of employee work times may

prevent those employees—whether individually or in

the aggregate—from relying on an_ industrial

engineering study to provide a “just and reasonable

inference” that the employee performed work for

which he or she was improperly compensated. Such

replicated proof, rather than mask differences among

employees, instead supplies substituted evidence of

work from which a factfinder may or may not infer

improper compensation by the employer. An

interpretation of Rule 23 that would prohibit such

proof would, in fact, alter substantive labor law and

run afoul of the Rules Enabling Act, 28 U.S.C §

2072(b) (the “rules shall not abridge, enlarge or

modify any substantive right”).

In this respect, Tyson and its amici do not and

cannot dispute that Tyson had the duty to maintain

adequate and accurate records of employee work

times, including donning and doffing time. See, e.g.,

Iowa Code Ann. § 91A.6 (employer required to

maintain and preserve records of all hours worked);

29 U.S.C. § 216 (same); Reich v. IBP, Inc., No. 88-

2171, 1996 WL 137817, at *9 (D. Kan. Mar. 21,

1996), affd sub nom., Metzler v. IBP, Inc., 127 F.3d

959 (10th Cir. 1997) (issuing permanent injunction to

predecessor owner of Tyson’s plant to maintain

accurate time records of employee donning and

doffing activities); Anderson, 328 U.S. at 686-87.

Tyson and its amici also do not and cannot dispute

that Tyson’s records of donning and doffing time for

each of the class employees were “inaccurate or

inadequate,” as ordered in Reich or described by this

Court in Anderson, 328 U.S. at 687. Indeed, Tyson

conceded below that the four minutes of K-code time

did not cover the donning and doffing of all protective

gear and certain walking time. JA 121-22, 176, 439-

40. Thus, the question for each of the class

employees, assuming each proceeded individually,

was whether he or she could rely on a standard time

and motion study—used every day by countless

industries—to meet the employee’s burden to show

“that he has in fact performed work for which he was

improperly compensated as a matter of just and

reasonable inference.” Anderson, 328 U.S. at 687.

This is and was a question of substantive labor law

and evidentiary burdens of proof having nothing to

do with class certification procedures.

As a matter of substantive law, penalizing

employees (whether individually or in the aggregate)

for the absence of accurate time records would only

encourage employers to fail to keep proper records.

Id. Nothing prevented Tyson from rebutting

Respondents’ proof at the trial below, as it was free

to call its own experts and even absent class

members to show that Respondents’ study was

flawed or inadequate to supply a “just and

reasonable inference.” The class posture of the case

had nothing to do with these trial realities, and

ought not mask Tyson's real attack on Anderson and

its progeny.

ARGUMENT

5. When Employers Spoliate or Fail to

Maintain Business Records, an Adverse

Inference Is Required.

Tyson and its amici ignore the fact that there

were two principal questions at issue below: (1) was

the line-prep, donning and doffing time (beyond four

minutes) compensable work?; and (2) assuming such

time was work, how much time over the four minute

K-code time did an employee work for which he or

she was not properly compensated?

The first question was a common,

predominating question regardless of whether any

emplovee took more than four minutes, because if it

was not work, no one could ever recover. If it was

work, then the only issue would be how much time

did it take? See Steiner v. Mitchell, 350 U.S. 247, 256

(1956) (holding that preliminary and postliminary

activities “integral and indispensable’ to the

employee's principal activity constitute “work”);

Perez v. Mountaire Farms, Inc., 650 F.3d 350, 365

(4th Cir. 2011), cert. denied, 132 S. Ct. 1634 (2012)

(holding that “the Steiner test is applicable to issues

of donning and doffing at the beginning and the end

of work shifts in the poultry processing industry”);

Alvarez v. IBP, Inc., 339 F.3d 894, 902-03 (9th Cir.

2003), affd, 546 U.S. 21 (2005) (same). Because this

“work” issue was both common and predominating,

there can be no dispute that the lower courts

properly certified the classes under both Rule 23 and

29 U.S.C. § 216(b). Indeed, Tyson’s Questions

Presented impliedly concede this point by admitting

that some members of the employee class performed

“work” for which they were not compensated.

The second question of “how much work time”

ordinarily would have been a “mechanical,”

arithmetic task—‘“not for a trier of fact but for a

computer program’—had Tyson kept accurate and

adequate records of the donning and doffing time.

See, e.g., Johnson v. Meriter Health Servs. Employee

Retirement Plan, 702 F.3d 364, 372 (7th Cir. 2012).

Had Tyson kept such records, they would have been

introduced and summarized as business records at

trial, and Tyson would then have had to challenge or

rebut its own payroll records. Such a challenge also

would have presented a common, predominating

issue under both Rule 23 and 29 U.S.C. § 216(b). See

Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952,

966-67 (9th Cir. 2013), cert. denied, 135 S. Ct. 53

(2014) (“In light of these [business] records, it would

not be difficult to determine USSA’s liability to

individual plaintiffs, nor would it be overly-

burdensome to calculate damages,” creating a

common, predominating issue whereby the class

“will prevail or fail in unison”).4

‘In Braun, the Pennsylvania trial and appellate

courts recognized and held that a corporation’s challenge

to its own payroll records clearly presents a common,

predominating question having a common answer in

classwide proceedings. See Braun, 24 A.3d at 936-37, 945-

46 (“It is unusual in the extreme for Wal-Mart, who relies

on their records for business purposes to contend that

although required by law to be created and maintained,

their records are so unreliable that they cannot constitute

prima facie proof of their contents.” (quoting trial court

opinion)). See also Salvas v. Wal-Mart Stores, Inc., 893

Because Tyson did not keep records, a “just

and reasonable inference’ based on _ substitute

evidence was required. Subjective, faded memories

from the employees might supply some inference, but

a properly constructed study (of the time it usually

takes to do something) would provide a “just and

reasonable inference.” An industrial engineering

study of time and motion thus could be offered by

each employee (whether this was a class action or

not) to prove the “how much,” as set forth in

Anderson. Hence, the attack on the time and motion

study has nothing to do with class certification

issues.

If each of the employees would rely,

necessarily, on the same time and motion study, and

if the flaws of that study would be the same whether

the class was certified or not, then the issue of the

study’s adequacy to calculate the “how much” would

be identical for all and would predominate for all, so

as to justify one proceeding to test the inferences, if

any, arising from the study. The “how much’

question, therefore, concerns issues of proof under

substantive labor law not class certification.

Dissimilarities among class members are beside the

point, because the real issue was and is: what is the

usual time it takes to do something (e.g., drive from

Boston to New York; prepare a hard-boiled egg:

commute by train from New York to Washington,

N.E.2d 1187, 1205-06 (Mass. 2008) (“Business records

have a special place in our law of evidence. Wal-Mart's

business records at issue in this case satisfy all of the

requirements to be afforded the usual presumption of

reliability.”); Iliadis v. Wal-Mart Stores, Inc., 922 A.2d

710 (N.J. 2007) (same).

D.C.)?5 With records, different circumstances on each

day would, of course, be measured precisely, but the

5 In this respect, the arguments about

“dissimilarities” among class members reflected in the

amicus brief of the “Civil Procedure Scholars” are both

mistaken and extra-textual. They are mistaken because

the usual time it takes to perform a task like donning and

doffing protective gear is an evidentiary question, not a

Rule 23 question. Because Tyson employees rotated

through different jobs, JA 210, 234-236, the time and

motion study provided a “just and reasonable inference”

that the employees were, in fact, underpaid, regardless of

whether the study was admitted in individual as

compared to representative proceedings.

The arguments are extra-textual because Rule

23(b)(3) requires “predominance,” not “resolvability, as

argued by the amicus brief. See Civ. Pro. Scholars Br. 5-

23; see also Alan Erbsen, From “Predominance” to

“Resolvability’: A New Approach to Regulating Class

Actions, 58 Vand. L. Rev. 995, 1080 (2005) (arguing that

dissimilarity among class members and their claims is

significant and that “resolvability’ should be the test for

class certification). The difference is significant because

“predominance” does not alter or abridge substantive

labor law but “resolvability’ does.

Where the same challenges to and alleged flaws of

the time and motion study would be raised in each of

2,300 individual wage and hour cases (given the absence

of any Tyson records), the issues raised by the challenges

and alleged flaws undoubtedly “predominate, making one

class proceeding far superior to 2,300 individual and

redundant trials. If Rule 23(b)(3) were amended to

instead require “resolvability,” any study, projection, or

extrapolation of the usual time it takes to perform a task

would necessarily overcompensate the fast and

undercompensate the slow without materially changing

the defendant’s net liability. Yet, such a test would alter

wrongdoer who failed to keep the records should not

prevail due to the absence of such records. As the

Court has stated repeatedly, “it does not come with

very good grace for the wrongdoer to insist upon

specific and certain proof of the injury it has itself

inflicted.” See, e.g., J. Truett Payne Co. v. Chrysler

Motors Corp., 451 U.S. 557, 566-67 (1981) (citations

and internal quotation marks omitted).

Common substitute proof, e.g., an industrial

time and motion study, to supply inferences is

appropriate where an employer has failed to keep

adequate and accurate time records just as an

adverse inference is appropriate where an employer

has affirmatively spoliated such records. That was

and is the case in Wal-Mart Stores, Inc. v. Braun,

Nos. 14-1123 & 14-1124. There, extrapolations from

pre-spoliation time records were performed primarily

because Wal-Mart purposefully stopped keeping

records during the pendency of wage and hour class

actions, specifically to prevent their use in litigation.

See No. 14-1123, Pet. App. 285a (“evidence at trial

clearly revealed that the corporate response to class

action lawsuits filed in many states was to cease

all record keeping for rest break periods”). This

Court has recognized that all courts have the

inherent authority “to fashion an appropriate

sanction for conduct which abuses the judicial

process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-

45 (1991). An adverse inference from such spoliation

is such a sanction, one that allows the judge as

gatekeeper to determine whether to permit the

and abridge the substantive “just and reasonable

inference’ standard by mandating individualized actual

proof, which conflicts with Anderson.

factfinder to determine the appropriateness of its

application.

Spoliation occurs when evidence is not

preserved, and “litigation is ‘pending or reasonably

foreseeable.” Micron Tech., Inc. v. Rambus Inc., 645

F.3d 1311, 1320 (Fed. Cir. 2011) (quoting Silvestri v.

Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.

2001)). See also Fujitsu Ltd. v. Federal Express Corp..,

247 F.3d 423, 436 (2d Cir. 2001). The sanction for

such misconduct “should be designed to” deter future

spoliations, “place the risk of an erroneous judgment

on the party who wrongfully created the risk,” and

“restore ‘the prejudiced party to the same position he

would have been in absent the wrongful destruction

of evidence by the opposing party.” West v. Goodyear

Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)

(quoting Kronisch v. United States, 150 F.3d 112, 126

(.d Cir. 1998)). After all, “[i]t has long been the rule

that spoliators should not benefit from their

wrongdoing.” Id.

This Court has regarded the destruction of

documents in anticipation of litigation to be

spoliation “of unusual aggravation, and warrants the

most unfavorable inferences as to ownership,

employment, and destination.” The Bermuda, 70 U.S.

514, 550 (1865). The types of sanctions for spohation

“include dismissal of the case, the exclusion of

evidence, or a jury instruction on the ‘spoliation

inference.” Vazquez-Corales v. Sea-Land Serv., Inc..

172 F.R.D. 10, 13 (D.P.R. 1997) (citation omitted); see

also Automated Solutions Corp. v. Paragon Data

Sys., Inc., 756 F.3d 504, 513 (6th Cir. 2014) (same).

The “most frequently-awarded issue-related sanction

is deeming facts established for purposes of the

litigation.” Jamie S. Gorelick, et al., Destruction of

Evidence § 3.16, at 111 (2015).

No circuit and no state supreme court has ever

suggested that an adverse inference instruction

raises a due-process concern. Instead, all are plainly

comfortable with such a sanction. See, e.g., Beaven v.

U.S. Dep't of Justice, 622 F.3d 540, 554 (6th Cir.

2010); Residential Funding Corp. v. DeGeorge Fin.

Corp., 306 F.3d 99, 113 (2d Cir. 2002). Moreover,

courts consistently find that “holding the prejudiced

party to too strict a standard of proof regarding the

likely contents of the destroyed evidence would

subvert the prophylactic and punitive purposes of the

adverse inference, and would allow parties who have

intentionally destroyed evidence to profit from that

destruction.” Kronisch, 150 F.3d at 128.

In Employees’ action against Wal-Mart,

pending before this Court, Wal-Mart attempted to

thwart Employees’ proof of their claims by changing

its time-keeping records to stop recording employee

breaks. The internal company emails and other

corporate records attached in the Appendix to this

Brief show that Wal-Mart changed the “Break and

Meal Period Policy to eliminate punching out and in

for breaks because they have received a class

action lawsuit by some opportunistic lawyers to

recover many millions of dollars on behalf of the

‘thousands’ of associates who ‘regularly’ have their

breaks cancelled with no make up break granted.”

Ex. A, reproduced from record in Nos. 14-1123 & 14-

1124, R. 4264a-4266a; see also Exs. B & C, R. 4263a

& R. 9231a. The trial court in Braun instructed the

jury that it could draw an adverse inference from

Wal-Mart's spoliation of evidence, and Wal-Mart did

not object to or appeal from the adverse inference

instruction. See No. 14-1123, Pet. App. 285a.

That Wal-Mart, “the nation’s largest private

employer’ (Wal-Mart Amicus Br. 1), would

intentionally spoliate evidence to thwart wage and

hour claims by its hourly employees implicates the

issues raised in the instant appeal. Where employers

fail to maintain, cease keeping, or otherwise spoliate

records of all hours worked by employees, employees

must be able to rely on an adverse inference to

establish their wage-theft claims. This rule should

apply whether the claims are litigated individually,

collectively, or on an aggregate basis through a class

action. A contrary rule would penalize hourly

employees, discourage the retention of corporate time

records, and reward the destruction of evidence.

These spoliation principles animate the

Court's jurisprudence under Anderson and _ its

progeny, all of which emphasize that an employer

has the duty to keep “adequate and accurate” time

records, and that employees may prove damages in

the absence of such records based on “just and

reasonable inferences” from substitute evidence.

Hourly employees should not be punished where, as

here, an employer has failed to fulfill its statutory

and court-ordered duties.

II. This Court Has Applied a “Just and

Reasonable Inference” Standard for

Damages in Dozens of Different Cases,

Including Class Actions, for More Than

100 Years.

The “just and reasonable inference” standard

is not confined to wage-and-hour claims. In fact, the

Court has relied on the standard in countless

contexts, including antitrust, consumer, commercial,

and even criminal cases.

For example, in Bigelow v. RKO Radio

Pictures, Inc., 327 U.S. 251 (1946), the Court said

that “where the defendant by his own wrong has

prevented a more precise computation, the jury

may make a just and reasonable estimate of the

damage based on relevant data, and render its

verdict accordingly.” Jd. at 264 (citing Story

Parchment Co. v. Paterson Parchment Paper Co., 282

U.S. 555, 564 (1931); Eastman Kodak Co. v. S. Photo

Material Co., 273 U.S. 359, 377-79 (1927)); see also

Texaco, Inc. v. Hasbrouck, 496 U.S. 543, 573 & n.31

(1990)). The Court explained that the “principle is an

ancient one, Amory v. Delamirie, 1 Strange 505

[King’s Bench, Lord Pratt, CJ (1722)], and is not

restricted to proof of damage in antitrust suits.” 327

U.S. at 265. According to Bigelow, the ancient

common-law principle has been applied in a

multitude of contexts because “the wrongdoer may

not object to the plaintiffs reasonable estimate of the

cause of injury and of its amount, supported by the

evidence, because not based on more accurate data

which the wrongdoer’s misconduct has rendered

unavailable.” Jd. “Any other rule would enable the

wrongdoer to profit by his wrongdoing at the expense

of his victim. It would be an inducement to make

wrongdoing so effective and complete in every case

as to preclude any recovery, by rendering the

measure of damages uncertain.” Jd.

In Hetzel v. Baltimore & O.R. Co., 169 U.S. 26

(1898), the Court discussed and applied similar

principles in the context of a trespass and nuisance

action in which a railroad illegally installed tracks

that blocked a property owner's access to and sale of

her property. Because the legally placed tracks

prevented any offers for the lot, the plaintiff had to

estimate her damages, which the lower courts

rejected, awarding just nominal damages of “one

cent.” This Court reversed, observing that “absolute

certainty as to the damages sustained is in many

cases impossible.” Jd. at 37. According to the Court,

the rule in all civil actions for damages, whether

based on tort or contract, is not that damages be

proved “with the certainty of a mathematical

demonstration, but instead be “founded upon

inferences legitimately and properly deducible from

the evidence.” /d. at 38.

This Court applied the same principles and

expressly approved of extrapolations to prove

damages in Eastman Kodak Co. v. S. Photo Materials

Co., 273 U.S. 359, 376-79 (1927). In that case, the

Court upheld a jury verdict that found damages

based on “the profits earned by the plaintiff during

the preceding four years in which it had been a

customer of the defendant,” concluding “that

plaintiffs evidence as to the amount o° damages,

while mainly circumstantial, was competent, and

that it sufficiently showed the extent of the damages,

as a matter of just and reasonable inference.” Jd.

In the same context, the Court has since

emphasized that it is important not to “blur[] the

distinction between the liability and damages

issues.” Texaco, 486 U.S. at 572. And, many lower

courts have applied the same principles in the

context of criminal, antitrust, and similar wage and

hour cases. See, e.g., United States v. Sharp, 400 Fed.

Appx. 741, 745-46 (4th Cir. 2010), cert. denied, 562

U.S. 1272 (2011) (approving use of random sampling

and statistical analysis of over 15,000 Medicare

claims in Medicare fraud prosecution of osteopath);

In re Scrap Metal Antitrust Litig., 527 F.3d 517, 533-

35 (6th Cir. 2008), cert. denied, 556 U.S. 1152 (2009)

(finding expert market evidence, though discounted

by the jury, was sufficient to support damages award

and did not result in a “fluid recovery”); Morgan uv.

Family Dollar Stores, Inc., 551 F.3d 1233, 1272, 1277

(llth Cir. 2008), cert. denied, 558 U.S. 816 (2009)

(upholding jury verdict in favor of hourly workers,

holding that “[t]he jury’s verdict is well-supported

not simply by ‘representative testimony, but rather

by a volume of good old-fashioned direct evidence’).

All of these authorities make clear that the

ancient, common-law standard of “just and

reasonable inference’ for the proof of damages is

wholly distinct from the procedural reach of Rule 23

and the collective action principles of § 216(b). The

standard is one of substantive law that should not be

altered or abridged by a unique or novel

interpretation of a procedural rule. Whether some

Tyson class members in theory may be

undercompensated by the aggregate damages award

while others are overcompensated does not detract

from the fundamental principle that the damages on

the whole inflicted by Tyson were and are supported

by a “just and reasonable inference’ from an

industrial time and motion study properly admitted

in evidence and considered by the jury, just as 2,300

separate juries could consider the same study in

awarding individual damages. In fact, there can be

no doubt that all members of the Tyson class will be

bound by the judgment below, so any dissimilarities

among them are wholly irrelevant and have no effect

on res judicata. See Cooper v Federal Reserve Bank,

467 U.S. 867, 881 (1984); Hansberry v. Lee, 311 U.S.

32, 43-44 (1940); Fayerweather v. Ritch, 195 U.S.

276, 302 (1904). How the aggregate damages are

ultimately allocated to employee class members is,

therefore, no concern of Tyson’s, and cannot provide

a basis for vacating the jury verdict and judgments

below. See Allapattah Servs., Inc. v. Exxon Corp., 333

F.3d 1248, 1258 (11th Cir. 2003), affd, 545 U.S. 546

(2005) (“[A] defendant has no interest in how the

class members apportion and distribute aj[n]

[aggregate] damage [award] among themselves.”).

III. Where Employers and _ Businesses

Regularly Rely On Business Records,

Class Claimants May Also Rely On Such

Records as Proof at Trial.

Employers throughout the country create and

retain a wide range of business records to comply

with or receive benefits from federal and state tax

laws, employment laws, and other laws. Employers

routinely rely on their own personnel records and a

range of other business records to successfully defend

against actions filed by their employees. And while

workers commonly rely on their employers’ records to

prove their employment-related claims, they usually

have a far greater need to discover and proffer

employers’ records as evidence, because employers

ordinarily have exclusive access to the relevant

records, while workers ordinarily have the burden of

proving that their employers violated the law.

When workers seek to vindicate their rights

collectively, it is vital that they can rely on their

employers’ business records to prove their claims. In

Braun, the Employees relied on millions of existing

Wal-Mart business records to establish the wage

violations. Braun, 106 A.3d at 660-61 (explaining

“[a]Jt trial, Dr. Baggett testified that he had been

provided the hourly employee time clock, rest break,

and payroll records for all 139 Wal-Mart stores in

Pennsylvania for the period from 1998 through early

2006, which amounted to 46 million individual

shifts.”). The Pennsylvania Supreme Court

specifically held that

the now-disapproved “trial by formula”

process at issue in Dukes was not at

work here, because there was no initial

or prior adjudication ot Wal-Mart's

liability to a subset of employees that

would then be extrapolated to the rest

of the class [T}he evidence of Wal-

Mart’s liability to the entire class for

breach of contract and WPCL violations

was established at trial by presentation

of Wal-Mart's own universal

employment and wage policies, as well

as its own business records and internal

audits.

Id. at 665 (emphasis in original). Where an employer

destroys, corrupts, or fails to maintain payroll

records required by law, it should not receive a

procedural ruling that would preclude substitute

evidence or an adverse inference.

In actions seeking to recover lost wages or

employee benefits, employers’ payroll and other

business records are often capable of answering

common questions for all class members.® Thus, it is

§ See, e.g., Alvarez v. City of Chicago, 605 F.3d 445,

449 & n.1 (7th Cir. 2010) (reversing the denial of

certification and dismissal of federal overtime collective

action and noting that the individual facts in “payroll and

unsurprising that “numerous courts have found that

wage claims are especially suited to class litigation—

perhaps the most perfect questions for class

treatment—despite differences in hours worked,

wages paid, and wages due. Ramos _v.

SimplexGrinnell LP, 796 F. Supp. 2d 346, 359-60

(E.D.N.Y. 2011) (internal quotations and citations

omitted) (granting certification of class alleging

prevailing wage violations and concluding “a class

action is the most efficient way to resolve the same

claims at issue here” as “plaintiffs may calculate

class damages by applying a common formula to data

culled from defendant’s electronic records’).

A. Statistical evidence is routinely

admitted in class actions.

Parties frequently use statistical evidence to

support factual findings as well. Of course, the

opposing party has the opportunity to challenge

these findings by contesting the methodology

employed to reach the conclusions, but these

time records” will determine how much individual class

members are owed); Morgan, 551 F.3d at 1239, 1277

(affirming jury verdict in favor of class of employees who

used employer's payroll records to establish that they

“routinely worked 60 to 70 hours a week and to quantify

the overtime wages owed to each Plaintiff’ and noting

that the business records introduced constituted “good

old-fashioned direct evidence”); U.S. Dep't of Labor v. Cole

Enters., 62 F.3d 775, 780 (6th Cir. 1995) (holding payroll

records undermined employer's claim that it had paid its

restaurant workers the minimum wage); Sperling v.

Hoffman-La Roche, 24 F.3d 463, 472 n.16 (3d Cir. 1994)

(noting that “employers generally have business records

containing the vital statistics and work histories of their

past employees’).

challenges are common to the class. When properly

compiled and described, such evidence is routinely

admitted. In class actions and complex business

disputes, such evidence is often the only feasible way

for the fact finder to answer certain questions.

Litigants commonly rely on aggregate, statistical

evidence in a variety of areas of the law—such as

securities, antitrust, and commercial litigation—and

the courts, juries, and parties are capable of

comprehending and using this evidence in civil

litigation. Precluding the use of this evidence would

deny factfinders access to an important category of

evidence frequently used in courtrooms across

America, as well as in science and business every

day. And because the underlying data are

admissible, the alternative would be admission of the

very same evidence, sliced into individual strands, in

an endless series of individual trials, along with the

other common evidence. Therefore, both fairness and

efficiency mandate the approach taken by trial

courts in conducting a single class action relying on

the same types of evidence typically used in

individual cases and class actions.

The use of statistics has been overwhelmingly

endorsed by courts, by the Federal Judicial Center,

and by commentators. See, e.g., Manual for Complex

Litig. § 11.493 (4th ed.) (use of sampling acceptable

in pretrial procedures). For example, an aggregate

approach to class damages is well established. See Jn

re Neurontin Antitrust Litig., Nos. 02-1830 & 02-

2731, 2011 WL 286118, at *10 (D.N.J. Jan. 25, 2011)

(collecting authority approving aggregate class

damages); Mezer, Inc. v. Warner-Chilcott Holdings

Co. III, Ltd., 246 F.R.D. 293, 312 (D.D.C. 2007)

(approving aggregate approach to class damages).

Statistics have been used successfully in

myriad class cases, as well as non-class cases. The

leading commentator on class action jurisprudence

explains:

Aggregate computation of class

monetary relief is lawful and proper.

Courts have not required absolute

precision as to damages. Challenges

that such aggregate proof affects

substantive law and otherwise violates

the defendant’s due process or jury trial

rights to contest each member's claim

individually{} will not withstand

analysis.

3 Herbert B. Newberg & Alba Conte, Newberg on

Class Actions § 10.5, at 483-86 (4th ed. 2002). This

commonsense logic is borne out across the spectrum

of different types of litigation.

1. Wage and hour.

In Brinker Restaurant Corp v. Superior Court,

273 P.3d 513, 546 (Cal. 2012), the California

Supreme Court reiterated that “[rlepresentative

testimony, surveys, and statistical analysis all are

available as tools to render manageable

determinations of the extent of liability.” Jd. (citing

Dilts v. Penske Logistics, LLC, 267 F.R.D. 625, 638

(S.D. Cal. 2010)) (certifying a meal break subclass

because liability could be established through

employer records and representative testimony, and

class damages could be established through

statistical sampling and selective direct evidence);

Bell v. Farmers Ins. Exchg., 9 Cal. Rptr. 3d 544, 578

n.32 (Cal. Ct. App. 2004) (relying on Reference Guide

on Statistics in the Reference Manual on Scientific

Evidence in upholding as consistent with due process

the use of surveys and statistical analysis to measure

a defendant's aggregate liability); Sav-on Drug

Stores, Inc. v. Superior Court, 17 Cal. Rptr. 3d 906,

918 n.6, 923 n.12 (Cal. 2004) (noting with approval

the use of statistical sampling in _ overtime

compensation and aggregate techniques in other

cases). The Brinker Court observed that “statistical

inference offers a means of vindicating the policy

underlying [applicable state law] without clogging

the courts or deterring small claimants with the cost

of litigation.” 273 P.3d at 546; see also id.

(encouraging “a variety of methods to enable

individual claims that might otherwise go unpursued

to be vindicated, and to avoid windfalls to defendants

that harm many in small amounts rather than a few

in large amounts’).’

7 Tyson relies on Espenscheid v. DirectSat USA,

LLC, 705 F.3d 770 (7th Cir. 2013), as prohibiting all time

and motion studies—even for an individual wage and

hour claim—because Tyson says they are based on a

“fictional ‘average’ employee” and that “approach confers a

‘windfall’ on some class members while

‘undercompensating others.” Tyson Br. 20 (quoting

Espenscheid, 705 F.3d at 774). But Tyson over-reads the

case, which did not involve an industrial time and motion

study or any expert analyses. The technicians in

Espenscheid were not line-workers at a processing plant;

they were “more like independent contractors” who

“spend the work day installing and repairing satellite

equipment at customers’ homes and are paid on a piece-

rate basis—so many dollars per job—rather than being

paid a fixed hourly wage.” Jd. at 772. Because the

installers had to keep and report their own work times,

and because they each did different types of installations

2. Employment discrimination.

Statistics are also routinely admitted in

employment discrimination cases. As discussed in

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

(2011), this Court reaffirmed that plaintiffs may

establish a pattern or practice of discrimination

under Title VII through the introduction of

statistical evidence, and courts continue to certify

Title VII classes based on statistical and other

evidence. See, e.g., Ellis v. Costco Wholesale Corp.,

285 F.R.D. 492 (N.D. Cal. 2012); see also Lavin-

McEleney v. Marist College, 239 F. 3d 476, 481 (2d

Cir. 2001) (allowing statistical sampling to show

gender-based salary disparity for both liability and

damages).

3. Antitrust.

It is a settled practice for courts in antitrust

class actions to rely on classwide aggregate

techniques in calculating individual damages awards

without individualized hearings of class member

claims. See In re Scrap Metal Antitrust Litig., 527

F.3d at 533-35 (affirming jury verdict where

plaintiffs “provided evidence of a _ class-wide

and repairs each day, the court faulted class counsel for

not providing a workable trial plan from which a

factfinder could infer whether and how much work the

technicians had performed for which they were not

compensated. See id. at 776. Without a study or at least a

random sampling of technicians, the court said, “a

shapeless, freewheeling trial” would result. Jd. By

contrast, the Tyson processing plant workers here

presented the exact type of expert-based study and trial

plan that was missing in Espenscheid

aggregate injury.”); In re Neurontin Antitrust Litig.,

2011 WL 286118, at *10 (collecting authority holding

that “the use of an aggregate approach to measure

class-wide [antitrust] damages may be appropriate’).

One prominent example is Wal-Mart Stores,

Inc. v. Visa USA, Inc., 396 F.3d 96 (2d Cir. 2005),

where Wal-Mart was a named plaintiff and served as

a class representative for approximately five million

other merchants. /d. at 101. In that case, the Second

Circuit approved Wal-Mart's use of a statistical

formula to calculate damages, despite potential

differences in individual circumstances. Jn re Visa

Check/Mastermoney Antitrust Litig., 280 F.3d 124,

141 (2d Cir. 2001), disapproved in part on other

grounds by In re Initial Public Offering Sec. Litig.,

471 F.3d 24, 39-40, 42 (2d Cir. 2006). Ultimately,

Wal-Mart secured a $3 billion settlement for itself

and its fellow class members. Id.

4. Securities.

Courts also routinely employ classwide,

formula-based techniques to calculate individual

damages in securities class actions. See 3 Newberg on

Class Actions § 10:8. The large volume of trades and

the difficulty of identifying each security purchaser

make precise individual damages determinations

infeasible or impossible. Michael Barclay & Frank C.

Torchio, A Comparison of Trading Models Used for

Calculating Aggregate Damages in _ Securities

Litigation, 64 Law & Contemp. Probs. 105, 106

(2001). Given the large numbers of class members

involved in many securities class actions and the

correspondingly large number of shares and

transactions at issue, requiring individual proof of

damages would imperil enforcement of the nation’s

laws against large-scale securities fraud. Thus,

securities cases regularly involve aggregate damages

awards based on class-wide statistical] analyses. See,

e.g., Harmsen v. Smith, 693 F.2d 932, 945-46 (9th

Cir. 1982) (aggregate damages need not be proved

to a “mathematical certainty’).

5. Consumer.

Similarly, courts regularly approve aggregate

techniques fox computing classwide damages in

numerous consumer class actions. For example, in

Smilow v. Southwestern Bell Mobile System, Inc., 323

F.3d 32 (1st Cir. 2003), the First Circuit rejected a

defendant's argument that damages should not be

calculated based on its computer records and

analysis through a “mechanical process.” Jd. at 40 &

n.8. Other courts agree. See, e.g., In re Monumental

Life Ins. Co., 365 F.3d 408, 419 (5th Cir. 2004)

(insurance rates); Roper v. Consurve, Inc., 578 F.2d

1106, 1115 (5th Cir. 1978) (credit card charges);

Occidental Land, Inc. v. Superior Court, 134 Cal.

Rptr. 388, 393 (Cal. 1976) (in bank) (developer

fraud); Carnegie v. Household Intl, Inc., 376 F.3d

656, 661 (7th Cir. 2004) (Posner, J.) (stating that

“Rule 23 allows district courts to devise imaginative

solutions to problems created by individual

damages issues” and affirming trial court's

certification of a class of 17 million class members).

6. Housing discrimination.

Statistical evidence plays a critical role in

housing discrimination cases. In cases brought under

the Fair Housing Act, 42 U.S.C. § 3601 et seq., this

Court recently approved the use of statistical

evidence, when combined with a defendant's policy or

practices that cause a disparity, to establish liability

for disparate impact. Texas Dep't of Hous. & Cmty.

Affairs v. Inclusive Communities Project, Inc., 135 S.

Ct. 2507, 2523 (2015). In fact, “[t]ypically, a

disparate impact is demonstrated by statistics, and a

prima facie case may be established where gross

statistical disparities can be shown.” Mt. Holly

Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly,

658 F.3d 375, 382 (3d Cir. 2011) (internal citations

and quotations omitted).

7. Businesses use _ statistical

evidence in litigation.

Even conventional commercial litigation often

involves damage determinations based on aggregate

proof. See, e.g., MBIA Ins. Corp. v. Countrywide

Home Loans, Inc., 958 N.Y.S.2d 647 (Tbl.), 2010 WL

5186702, at *13 (N.Y. Sup. Ct. 2010) (approving

plaintiffs request to analyze samples of loans in

support of allegations that defendant misrepresented

the origination and quality of loans); /4] Ltd. P’ship

vu. Microsoft Corp., 598 F.3d 831, 855 (Fed. Cir. 2010)

(affirming calculation of damages in patent case

based in part on responses from 46 businesses out of

988 surveyed, which were “randomly selected from a

database of 13 million U.S. companies”); Ratanasen

vu. State of Cal. Dep’t of Health Servs., 11 F.3d 1467,

1471 (9th Cir. 1993) (approving “the use of sampling

and extrapolation as part of audits in connection

with Medicare and other similar programs, provided

the aggrieved party has an opportunity to rebut such

evidence’ ).

8. Businesses use statistics

every day.

The use of statistics and other aggregate proof

in class actions is not only commonplace and well-

accepted, but it also mirrors how companies, in

conducting business, handle information and make

decisions. For example, “Wal-Mart’s internal audit

department used TPERs [Time Clock Punch

Exception Reports] and TCARs [Time Clock Archive

Reports] to conduct internal audits of employees’

compliance with the rest-break policies. If the audits

revealed violations of the policies, then managers or

employees could be subject to discipline up to and

including termination.” Braun, 24 A.3d at 885, affd,

106 A.3d 656. Wal-Mart relied on the same records to

dock employee pay electronically if the employee was

late by just “1 minute” in returning from a break, see

id. at 915-16, while it failed to pay anything if the

employee missed or was shorted for her break,

despite the records expressly recording “TOO FEW

BREAKS,’ “SHORT BREAK,” and “TOO FEW

MEALS.” See Ex. D, reproduced from record in Nos.

14-1123 & 14-1124, R. 8644a-8647a. The courts in

Braun all correctly held it was proper for Employees

to rely on such payroll records to prove their claims,

as Wal-Mart itself relied on the same business

records. See 24 A.3d at 915-16, affd, 106 A.3d at 665.

B. Tyson waived its objection to

statistical evidence and had the

opportunity to cross-examine class

members.

Tyson had every opportunity to treat its

current issue—damages—separately from liability to

prevent confusion that aggregation of damages

would automatically follow class-wide liability. In

fact, at trial, the plaintiffs requested bifurcation of

the proceedings between liability and damages. Pet.

App. 112-13. On the basis of Tyson’s objection, id. at

115, the court denied the plaintiffs’ request, so all

issues were tried on a unitary basis. Jd. at 112-13.

Because Tyson made a tactical decision to oppose

bifurcation, it cannot now complain that the failure

to bifurcate has deprived it of “the opportunity to

challenge each class member's claim to recovery

during the damages phase.” See Mullins v. Direct

Digital, LLC, 795 F.3d 654, 671 (7th Cir. 2015); see

also Amgen, Inc. v. Connecticut Ret. Plan & Trust

Funds, 133 S. Ct. 1184, 1196 (2013) (“Rule 23(b)(3)

does not require a plaintiff seeking class

certification to prove that each element of her claim

is susceptible to classwide proof.” (Emphasis in

original; internal quotation marks and alterations

omitted)).

While due process guarantees an opportunity

to present a defense “at a meaningful time and in a

meaningful manner,” Armstrong v. Manzo, 380 U.S.

545, 552 (1965), the right is not unbounded and must

still be an opportunity “appropriate to the nature of

the case.” Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. 306, 313 (1950). Here, Tyson had that

opportunity, chose not to take advantage of it, and

cannot now complain that the Constitution provides

a basis for correcting a tactical choice it now regrets.

As Justice Scalia wrote, “[o]ur adversary system is

designed around the premise that the parties know

what is best for them, and are responsible for

advancing the facts and arguments entitling them to

relief.” Castro v. United States, 540 U.S. 375, 386

(2003) (Scalia, J., concurring in part and concurring

in judgment). The fundamental rule is that a party

“may not complain on appeal of errors that he

himself invited or provoked.” Harvis v. Roadway

Express Inc., 923 F.2d 59, 60 (6th Cir. 1991); Kriner

vu. Dinger, 147 A. 830, 832 (Pa. 1929) (same).

Tyson further claims it was denied due process

because it was unable to cross-examine each class

member, arguing such individualized examinations

would have been available if individual trials, rather

than a class action, occurred. Tyson Br. 37. But

nothing prevented Tyson from calling as many class

members as witnesses as it chose to. Perhaps

recognizing that, Tyson complains it was not

“feasible to call hundreds or thousands of class

members at trial” and that “discovery on each class

member's individualized issues” would not be

allowed. Id. at 37-38. But Tyson’s complaints

misapprehend the enterprise that Rule 23 sets in

motion and ignore the fact that the opt-ins under §

216(b) were before the court and were subject to

discovery. In truth, Tyson's tactical decision at trial

was not compelled by Rule 23 or § 216(b), because

Tyson would undoubtedly contend in 2,300 separate

trials that examinations cf all the workers were

required to rebut Respondents’ study, which is the

real focus and necessary import of Tyson’s appeal.

Despite the frequent refrain about the need to

examine every member of a class to mount every

possible defense, corporate defendants never

undertake such an examination of even a2 small

number of class members. For example, in

Employees case pending before this Court on Wal-

Mart’s petitions for certiorari, despite designating

more than 130 witnesses on its witness list and, on

the weekend before trial, identifying more than one

hundred more, Wal-Mart, No. 14-1123, Pet. App.

270a n.4, and despite the absence of any ruling

preventing it from calling those witnesses, Wal-Mart

made a strategic decision to call only 12 fact

witnesses (only one of whom was a class member)

and two expert witnesses (out of eight retained

experts), yet still inaccurately told this Court that it

was deprived of the “mght to rebut (plaintiffs’

evidence] through an individualized showing that a

particular break was not in fact missed or was

missed as a result of a voluntary decision by that

employee.” Wal-Mart, No. 14-1123, Pet. 3. The

disconnect between the trial tools absolutely

available to class-action defendants and their later

post-trial complaints is all too real. Class

certification does not deprive a defendant of its

ability to mount every possible defense, only the

defendant's strategic decisions do.

IV. Trial Courts Must Have Sufficient

Discretion to Control Redundant

Evidence Given Common Proof of a

Corporate-Wide Practice.

The judiciary historically has had discretion to

control the types and amount of evidence permitted

at trial. Many courts have held that trial courts must

have the authority to control the nature and types of

evidence presented, the course of proceedings and

the avoidance of repetitive or redundant testimony.

See Commonwealth v. Laird, 988 A.2d 618, 636 (Pa.

2010); Samuel-Bassett v. Kia Motors Am., Inc., 34

A.3d 1, 29, 39-41 (Pa. 2011), cert. denied, 133 S. Ct.

51 (2012). Whether there is or should be a

constriction of these discretionary powers based on

the procedural form of the action or the substantive

nature of the claims implicates public policy choices

that arc between the judicial and _ legislative

branches. See Mark Moller, Class Action Defendants

New Lochneritsm, 2012 Utah L. Rev. 319, 389, 392

(2012) (questioning whether “Congress ought to have

the choice about how class claims can be proven” and

arguing that due process arguments of class action

defendants lack any historical or textual support,

except for two repudiated cases from the discredited

Lochner era).

A constitutional or other constriction on the

historic discretionary powers of the courts would

impact. necessarily, all forms and stages of action

whether they be criminal or civil, at preliminary or

class certification hearings, during pre-trial

discovery or motions in limine, or in connection with

mid-trial evidentiary decisions or requests for jury

charges. See Reyes v. Netdeposit LLC, No. 14-1228,

2015 WL 5131287 (3d Cir. Sept. 2, 2015) (quoting

Tobias Barrington Wolff, Discretion in Class

Certification, 162 U. Pa. L. Rev. 1897, 1898 (2014))

(“District Courts sometimes exercise discretion in

defining the parameters of the class definition and

deciding when subclasses are necessary, often acting

independently of any proposals made by the

parties.")). As other courts have recognized. this

Court’s Dukes decision did not “work[] some sea

change in class action jurisprudence.” Wallace B.

Roderick Revocable Living Trust v. XTO Energy, Inc.,

281 F.R.D. 477, 482 (D. Kan. 2012). The Dukes Court

emphatically did not establish or define a new due

process right for defendants. Rather, it emphasized

the statutory right of employers, expressly provided

by Congress in Title VII, to assert the “individual

affirmative defense” of “lawful reason,’ and found

that a procedure that short-circuited that individual

statutory defense ran afoul of the Rules Enabling

Act. 131 S. Ct. at 2561. The Dukes Court only

discussed due process in the context of class member

rights to notice and the opportunity to opt-out. Jd. at

2559 (“In the context of a class action predominantly

for money damages we have held that absence of

notice and opt-out violates due process.’).

Our jurisprudence has emphasized that due

process applies to both parties, and often requires a

balancing test to ensure that both sides have a fair

chance to be heard. Mathews v. Eldridge, 424 U.S.

319, 343-48 (1976). “Due process, unlike some legal

rules, is not a technical conception with a fixed

content unrelated to time, place and circumstances.”

Id. at 334. In this respect, “[t]he policy at the very

core of the class action mechanism is to overcome the

problem that small recoveries do not provide the

incentive for any individual to bring a solo action

prosecuting his or her rights.” Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 617 (1997); see Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985)

(class actions are most appropriate where class

members’ claims would be “uneconomical to litigate

individually”); Kelly v. Cnty. of Allegheny, 546 A.2d

608, 612-13 (Pa. 1988) (same); Salvas, 893 N.E.2d at

1213 (same); Jliadis, 922 A.2d at 718 (same).§

8 See also Eisen v. Carlisle & Jacquelin, 417 U.S.

156, 186 & n.8 (1974) (internal citation and quotation

marks omitted):

The class action is one of the few legal

remedies the small claimant has against

those who command the status quo. The

matter touches on the issue of the

credibility of our judicial system. Either we

are committed to make reasonable efforts to

provide a forum for adjudication of disputes

The cases Wal-Mart musters for a different

due process standard are off-point. For example, the

court's observations in McLaughlin v. American

Tobacco Co., 522 F.3d 215, 223 (2d Cir. 2008) (Wal-

Mart Amicus Br. 10), hinged on the varying reasons

a class member may have purchased Light cigarettes

and their impact on the element of reliance. See id. at

232.9 Of course, reliance was not an issue below, as

Tyson's K-code system was the uniform source of the

wage violations. Wal-Mart’s citation of Broussard v.

Meineke Discount Muffler Shops, Inc., 155 F.3d 331

(4th Cir. 1998) (Wal-Mart Amicus Br. 16), is equally

mistaken because the unitary trial of the common

issues below was not infected by a “hodgepodge” of

various and conflicting legal theories as in that case.

See id. at 342-52. Similarly, Carrera v. Bayer Corp.,

727 F.3d 300 (3d Cir. 2013) (Wal-Mart Amicus Br. 9-

10), concerned the sole issue of ascertainability of

class membership where the defendant had no record

involving all of our citizens or we are

not. There are those who will not ignore the

irony of courts ready to imprison a man

who steals some goods in _ interstate

commerce while unwilling to grant a civil

remedy against the corporation which has

benefited, to the extent of many millions of

dollars, from collusive, illegal pricing of its

goods. When the organization of a

modern society, such as ours, affords the

possibility of illegal behavior accompanied

by widespread, diffuse consequences, some

procedural means must exist to remedy—or

at least to deter—that conduct.

° This Court contradicted McLaughlin's reliance

analysis in Bridge v. Phoenix Bond & Indemnity Co., 553

U.S. 639, 655 (2008).

of class members’ purchases. Other circuits have

rejected Carrera’s unique approach,}® and Wal-Mart

nowhere contends that the class members were

unascertainable from Tyson’s payroll records.

In sum, Tyson's attack on Respondents’

industrial engineering study is not a class

certification issue, as Tyson would raise the same

arguments had 2,300 separate trials occurred, all of

which would have relied on the same study because

Tyson violated its duty to maintain adequate and

accurate payroll records. Tyson’s attack is really

directed at the substantive “just and reasonable

inference” standard, and this Court should not alter

or abridge that substantive law with a procedural

ruling under Rule 23.

CONCLUSION

For the foregoing reasons, this Court should

affirm the decision below and deny the Petitions for

Certiorari in Wal-Mart Stores, Inc. v. Braun, Nos. 14-

1123 and 14-1124.

10 See Rikos vu. Proctor & Gamble, No. 14-4088,

2015 WL 4978712, at *22 (6th Cir. Aug. 20, 2015) (“We

see no reason to follow Carrera, particularly given the

strong criticism it has attracted from other courts.”);

Mullins, 795 F.3d at 671 (“the Third Circuit's approach in

Carrera, which is at this point the high-water mark of its

developing ascertainability doctrine, goes much further

than the established meaning of ascertainability and in

our view misreads Rule 23’).

September 29, 2015

Respectfully submitted,

Robert S. Peck

Counsel of Record

CENTER FOR CONSTITUTIONAL

LITIGATION, P.C.

777 6 Street, N.W., Suite 520

Washington, DC 20001

(202) 944-2874

robert.peck@cclfirm.com

Michael D. Donovan

DONOVAN AXLER, LLC

1055 Westlakes Drive

Suite 155

Berwyn, PA 19312

(610) 647-6067

Judith L. Spanier

ABBEY SPANIER, LLP

212 East 39th St.

New York, NY 10016

(212) 889-3700

Attorneys for Amici Curiae

APPENDIX

TABLE OF CONTENTS

internal company emails and other corporate records

from the record in Wal-Mart Stores, Inc. v. Braun &

Hummel, Nos. 14-1123 & 14-1124.

Email from Paul Ratziaff to Allen Plant, regarding,

Break and Meal Policy, Dec. 4, 2000,

SE la

Appointment Request from Nancy Bass to Andy

Wilson, et al., Sept. 29, 2000, R. 4263a......... 6a

Minutes of Staff Meeting, Oct. 2, 2000, R. 9231a.... 7a

Timeclock Punch Exception Report, Store 8160,

May 30, 2000, R .8644a-8647a..000.ooo oo. 9a

Exhibit A

Reproduced from record in

Nos. 14-1123 & 14-1124, R. 4264a-4266a, for the

Court’s convenience.

From: Paul Ratziaff

Sent: Monday, December 04, 2000 4:51 AM

To: Allen Plant

Ce: Roland Boudreau; Nancy Bass

Subject: RE: Break and Meal Policy CPD-07

Sensitivity: Confidential

Allen: Proceed with communicating and securing our

interests. Thanks. Paul

weneeeee Original Message---------

From: Roland Boudreau

Sent: Saturday, December 02, 2000 12:25 PM

To: Paul Ratzlaff

Subject: RE: Break and Meal Policy CPD-07

Sensitivity: Confidential

| support Al’s position.

Roland Boudreau

Sr. Vice President Operations

Wal-Mart Canada Inc.

905-821-2111 ext. #4128

905-821-8391 fax

rboudre@wal-mart.com

weseneees Original Message---------

From: Paul Ratziaff

Sent: Thursday, November 30, 2000 10:30 AM

To: Roland Boudreau

Subject: FW: Break and Meal Policy CPD-07

Sensitivity: Confidential

Roland: The US is changing their Break and Meal

Period Policy to eliminate punching out and in for

breaks and to eliminate the published policy language

that the associate is entitled to a full break later if

their regular break is interrupted. They are doing

this because they have received a class action lawsuit

by some opportunistic lawyers to recover many

millions of dollars on behalf of the ‘thousands’ of

associates who ‘regularly’ have their breaks cancelled

with no make up break granted. The US wanted us to

make the same policy and procedure changes, largely

so that the SMART programming would not have to

be different for Canada. Al has researched and we do

not support this request. You'll see his answer below.

FYI. Paul.

wnenneeee Original Message---------

From: Allen Plant

Sent: Thursday, November 30, 2000 10:09AM

To: Nancy Bass

Ce: Paul Ratzlaff; Greg Muzingo; Dean

Dolan; Bryan Miller — Int'l People;

Robbie Wasserman

Subject: Break and Meal Policy CPD-07

Sensitivity: Confidential

Hi Nancy:

Thank you for the heads up on the likely policy and

procedure change relative to the Break and Meal

Period (CPD-07).

I have had this issue researched in our legal

department and solicited opinion from Personnel

Managers in some of our larger Stores.

We are of the strong view that the policy should note

be changed by removing the requirement that

Associates “punch” in and out for break periods in

Canada for the following reasons.

1.) There is no legal exposure in any jurisdiction in

Canada similar to that faced in Colorado. The various

Provincial Employment jurisdictions each have an

“Employment Standards Act” setting minimum

standards for employees to follow with regards to all

employment obligations including breaks and meals.

Wal-Mart [4264a] Canada and in fact most employers

provide standards that far exceed what is set out in

the various Acts. In fact even if Wal-Mart were to

refuse a break as set out in the policy, in many cases

may still exceed the employment standards minimum

for breaks. Nevertheless there are mechanisms

provided to employees by which they would register

complaints with the Employment Standards Branch

of the Labour Board. Accordingly, because

Employment Standards Commissions have

jurisdictions over matters such as this it is highly

unlikely that a court would even hear a complaint

relating to an employers alleged breach of its

obligations with regard to its policy and/or the

Employment Standards Act.

2.) It is extremely rare, as we believe it should be, that

Management would as or require an Associate to

suspend their break in any event. We would consider

that if there were a case that this was happening on a

regular and/or perpetual basis it would be cause for

serious concern from a scheduling perspective and an

Associate Relations perspective.

3.) The Timeclock Exception Report (SAS1040R) is an

extremely useful tool for our Personnel Managers to

Manage Associates who are not following proper

guidelines. In fact this report is most often used in

evidence to support a misconduct coaching for time

fraud. The administrative time spent by Personnel

Managers in a large store is approximately 3 to 5

minutes daily, and the report is anywhere from one to

three pages long. You suggested that for some stores

in the U.S. this report was printing “15 feet long”

This is not happening in Canada and we believe its

because we have been managing the report on a daily

basis and addressing issues as they happen.

4.) We strongly believe that the removal of the

Associate obligation to “punch” in and out for breaks

would result in a significant increase in time fraud

and other inconsistencies and would most definitely

give rise to productivity loss and _ increased

administration costs in managing and monitoring

Associates break times.

5.) As I indicated on our telephone call, I believe that

if this policy were to be reformed as suggested, and at

a later date was to be reinstated in its present form

for the reasons listed above or other business reasons,

this would represent a significant Associate Relations

concern.

6.) With respect the provision in policy CPD-07 that

requires Management to compensate Associates for

the entire break and allow for an additional break or

meal period when breaks or meal periods are

interrupted, in our view acts as a disincentive for

Managers to interrupt an Associates break in the first

place. We would be prepared to remove this provision

nevertheless if so directed

(See below policy provision highlighted)

Interruption of Break and Meal Periods

Supervisors and management may not require nor

request associates to perform work during their break

and meal periods, except in extreme emergencies

where no other associate is available.

Hourly associates whose break or meal period is

interrupted to perform work will receive

compensation for the entire period at their

regular rate of pay and be allowed an additional

break or meal period

You indicated that the suggested policy changes do

not necessarily have to apply to Wal-Mart Canada. |

recommend respectfully that Canada’s policy (CPD-

07) remain as is.

Your respectfully

Allen Plant

Associate Relations

People Division

Wal-Mart Canada

This E-mail (including any attachments is intended for the use

of the individual or entity to which it is addressed and contains

information that is privileged and confidential. If the reader of

the E-mail (including any attachments) is not the intended

recipient, you are hereby notified that any dissemination,

distribution or copying of same is strictly prohibited. If you have

received thi E-mail (including any attachments) in error, please

notify the originating sender by telephone and reply by E-mail at

the [4265a] above-noted address and delete and destroy both

the reply and the original E-mail (including any attachments).

WMH0Oe-000082-008-00002700

CONFIDENTIAL

4266a

Exhibit B

Reproduced from record in Nos. 14-1123 & 14-1124,

R. 4263a, for the Court’s convenience.

APPOINTMENT

Organizer: Nancy Bass

Required Attendees: Andy Wilson, Charlyn Jarrells;

Deborah Kass; Jeffrey Reeves; Kevin Harper;

Mark Shaffer; Nancy Bass; Nancy Wetmore;

Ramona Truax; Randy Rogers

Subject: Special Meeting of the Policy Committee

Start Date: 09/29/2000 16:30:00 (GMT-06:00)

End Date: 09/29/2000 17:00:00 (GMT-08:00)

Show time as: Busy

Importance: Normal

Location: Andy Wilson's office

There is a law suit in Colorado that involves our Break

and Meal Period Policy, PD-07. We need to meet for a

ime ve discuss p SEC hanges in this DO

‘al f litigation. Char! giv ;

details at the meeting. I will be routing to you today

the policy with the proposed changes.

Thank you for your help!

Nancy

x38326

WMIA-CC WMCa-000032-001-00009149

PX 50 CONFIDENTIAL

4263A

Exhibit C

Reproduced from record in

Nos. 14-1123 & 14-1124, R. 923la, for the Court's

convenience.

STAFF MEETING OCTOBER 2, 2000

CONFERNCE ROOM B

7:00 a.m.- 9:00 a.m.

(All RPM's Present. Covered w/Jessica 10/2/00)

Clubs up for Selection (No selection today)

((For Randy) RPM candidates.

(GM only) ¢ name ¢ club ¢ survey ¢ length of service)

Agenda

e Need a clear understanding of our “next in line”

for co-mgr. positions. Re: promotable assistants

(surveys, wats, relocatability)

e RPM candidates

e Bull: update the people remiplis

e TAPS: 9175, some clubs want it left open per

Randy

o Oct. 23 new program going — ALL posters

down

o Get info job on TAP’s bills that had been

previously paid

e Break/Meal Period — interrupted PD-07

o $550M lawsuit on Wal-Mart b/c of 1400

exceptions

o Wal-mart will be eliminating clocking in/out

for breaks

(open door issues re not getting breaks and/or lunches

interrupted)

e Verify fall college recruiting attendance

Ethics summary — Aug. hrs. to 1* contact/Aug.

hrs. to close (below expecations)

(caps from Betty)

Client satisfaction survey

Mgmt. terminations — email Wanda compensation

issues for mgmt. leaving

Doppler clubs resurveyed — doppler clubs dates

backed to Oct. 13th

MIT's go to $29,500 after training / RPM must be

involved in all money offers

Area mgr. minimum is $75K

(Run Query for <$75 for area 1 MIT's)

(For area <$75 for MIT's)

Betty -

Project Calendar*

Maintaitiing I-9s*

Ulonda

Working on wag? survey info

New club needs to have GAP turned on

Confidential WM-MN-9999-602190

PLAINTIFF'S DEPOSITION

EXHIBT EXHIBIT

134 30

Sherrill

9231A

Exhibit D

Reproduced and excerpted from record in

Nos. 14-1123 & 14-1124, R. 8644a-8647a, for the Court's

convenience.

{Note: This is an excerpt of the Timeclock Punch

Exception Report for Wal-Mart Store 8160 for May 30,

2000. Several columns containing department and

individual identifying information have been deleted to

allow space for the pertinent information contained in the

columns excerpted below.]

10a

FHag] Moy OO],

BBA Me OO],

Tl0 6160 8060 FI9 809 yeoly WOUS 69ZL.

£10 LSLO PLO syBvosg AUB; ooy

£1:0 €YLO O£20 91:0 RZL0 ZILO OL'L OO'R BOW MY OO}, 1072,

0£-0 9221 BSIT SIO 2280 LOBO FLL FIR SABoIgT MOT OO] ORCS,

eyRolg, MAJ OO],

82:0 YEFI BOLT £20 LSIL VEIT 69L LEB yor AUC] 6L9L«

Byvory] Moy OO]

1£:0 6ZII 8SOI 91:0 LSL0 IP¥LO OSB 206 yYIys suey oeeg,

auty uy oN su uy = «own() aut] uy ownNg emry Ul = 1INEG SINO}] eRIOM uo#sReyY (oosKYy

Zz [ea Z yeolgy 1 [ee-w I qeesg VN ,2wW1y

0002/0£/80 OL 0002/06/60 WOUA 0002Z/0t/S0 :4utpugq poe 4104

IDET #es 0dey O91R °9101¢ NOMAGIOXE HONNd YOOTOUWLL —s S #060 4" 0002/18/60 “UO UNY

‘ONI SAYOLS LYUVW 'TVM

lla

22-0 ZEST OZSGT 2L0O SZel

VIO PIL O£II ZE0O 6H6O LIGO 91:0 gP90

100 SI6l VIGI 67:0 8P9T GI9T SI:0 006!

O£0 ZI8L ZhLI ILO LbOZ

Il-0 6£02

O10 8SL0 8PLO TE:0 9PLO GILO 91:0 ISI0

91-0 O£9T PI9T £0:% OOPI LSIT 81:0 L260

O10 6002 GSG6I O£:0 PERI POST LI°O0 ZSSI SESI Z9L 6O0'R

erel

Z£90

Crs!

9£02

8202

SEO

6060 GLL 296

69'f

aly

LUL

ska May OO]

6o-9 yeerg 4ucy 6£98,

RbR UIUS 3U0y] 1268.

éI-8 4velg WOUS CROP,

B[ Bay Aurp oo]

[Bey 4u0c7]

yRoig WoYs

Ajreg Oo], [eo

IL-v YIYS VOUS OILR,

a HRY WOUS GHB.

yeerg Wous

ZeeL Sang oO], ¥8e1Y RIGI,

[Re 4u0cy] 1106,

ywo1g WOYS GRR.

out, ul

z [PAW

NO eu) uj

é Weorgy

MO ouNny,

1 ea

ay mO omy aj

| ywoag

ING BINOY OyIOM

UuoBBOY oBBY

ON ,oUty,

l2a

syeasg Auep ooy,

STO ISSI 9EGT BBW Mey OOL

£20 GEL 2281 97-0 GETIT GIT SLL 808 yeeig 3u0] PS6h,

GGZ FES YWYS Hous veeo.

ByveIg] Me] OO],

G10 Z@Z2€l LOET 209 [0:9 s[BeW Med OO], ZLZS~

LI-O 9260 6060 28:0 SOZI FEIT R10 PLO SZLO SSL O18 ARG COL Fvorg OFG,

92-0 PZEL BSZI 910 9260 O160 SOL OF L SRO MOJ OO] ZZHI.

SY4BIIG M2] OO),

ZtO STOLL 9001 289 69 SBA MAJ 9°], 9199,

[Rep auc’)

yeeig Bucy]

2o-0 Zbl ObET EPO EFIT LOLL 610 8260 6060 SCL 028 yeorg 3u0] LObP.

81-0 POST 9PPI 62:0 OZEI [SZ SIO P20 GOOT LLB 166 YUS IO] 22274

awty Uy MQ sew, uy WO eu Ul] WO ey, Ul] = INO SANOPy BRIO M UOsEOY (OBB Y

z [P°W 6 Aeorg T (POW { Weer sVON got]

l3a

Bs, Ray AuBy Oo]

E11 OSOG LEG ZITO ORT SLI If0 G6S9T 8Z91 BIO ZEPL PIPL S99 92:8 [Baw 4u0] 0910,

86-0 T0¢I LEIL SIO OS60 SE6O SOL LOR SyRoIg may OO] Z6LL.

S10 6E6I PZ6I PRE OG-E WHS HONS IZEl«

[vey su07

81-0 SSET LEEL ShO GOZI OZIT 61°0 82760 6060 ZPL LIS 4eorg BU0] L8SZ

s]eay Aue oo;

Yeolg MJ OO]

[Bay 3u07]

LE-0 ZHI SOFT tt-O0 ZOcI 6ZIT £0-0 SELI LET 689 FOR Wet MOUS TIE.

O10 SHGIL SEG LEW 22h yeorg MOUS TILL

STO 620% FIOZ ZE-O OFLE BE9L GIO ZEST EIST ZOL LOR yeog Ju] 1Z19,

[tO GOT BE9T 62:0 BEST GOST LI‘O SET LEET FLO STL yeoty HOUS THO,

LgO ¥£-0 VIS MOUS 1ZS1,

owty, uy mH euny Ul] WO eu uy mg euny Ul «ING sINOPy OFIONM uoseoYy (lossy

Z 1P°W ie Mae | T TPeW [ yeory ON .OUyL

l4a

syeeigg Aue oo],

£10 BOF SSFI RLBOW MO4 OO)

GZz0 REZT LIZI £10 S60 IP60 LOL 108 yeoig 4uc] Of6f.

02:0 IPG 1261 YE 10°S yeoig 4u0] PPYL.

91:0 SZ60 6060 82:0 10Z1 £EI1 91:0 ILO SZLO 69R 116 yYS Buc] ZE9P,

O10 SIST SOSI ZEO0 ZPrYI OFEL £10 1260 8060 S6L 628 yee VOUS L676.

jeoyw 4ucy

02:0 SLI PELI 9F0 GOOL EFST B10 ZEIT HEEL SID COL yeasg Au] TILL.

SIO €291 BO9I SLE SIE WYS VOUS 6070.

L100 9260 6060 I€0 POZI LEIT 910 ZPLO 9ZLO HSL 9OR [2"q OOL eo CIPe,

yvorg WOYS

60:0 GEST OST HO LOFT LZZI FLO LICL COLT 006 PEG YUS 4uV] OOPS.

omy, ul mQ emmy ay mQ ou, UT MO oME” Ul IMG SMoH oNI0H Uoevey ons

z POW q Aeelg 1 (e°W 1 qeerg ON OU

l5a

‘anoy UB Jo BY peIpuUNY pue sinoY UI UMOYsS BI

pur (pepn|our sjvew pur syvolq pred pue) yrys oyy 40J pred @ oyetoosse ay) sanoy Jo JUNOME oY} Bt sinoy 1aN

‘sONUTW puke sINOY Ut

UMOYS SI pub (S[BaM PUL &YvoIQ [|e JUIPNoUT) 91078 ayy UI BEM OFELI0SSE BY OUIT] JO JUNOUIE BI Peys0M aul],

l6a

‘844 § UBY] JOU BINOY JOU ayeI9I0RRE <= LYTHS ONO’ .

‘81 pf UBY) S80] SINOY YoU ByeIDI0KsY <= LAIHS LYOHS .«

[Poul J64IY e10joq BLY Z UBYY SRO] POYIOM OVB1ID08BU <= LHOHS OOL IVAW «

WRI W6IT) G1OJeq BUT OF 814 | UBY) BRO] PeyIOM #UY S7eILD0RER <= ATHVaA OOL MVAUG «

Aep oy} Joy Yound 4yno uteM OU BEY ayBIDOBEe <= 1.10 NIVW ON .

sazeooREe AjINOY [je 07 A[dde sajna Autmoyoy ey L,

pemolle eAep

CATNIOBUOS FY SIEIYS JO JEQUINU WNUITXYW eq) UBY) e1OW peyxIOM BEY IOUIW <= SLY OASNOD »

yoom B UT PaMmo[[H S4NOY YoU UINUIIXeU ay) UBY} e10mI SHY AOUTW <= YAYM/MH XVI «

Avp ¥ Ul PoMOT]e BINOY QoU TINUITxeW oy) UeY) e20UI BeY IOUT <= AVC/MH XVW .

[Beu! {NOYIM saNoy Jou WNUIXeW sey IOUT <= TYAW O/M XVW «

SANOY JOOYSS AULINP pexsOM Bey IOUT! <= SYNOH IOOHDS «

Al1B9 007 YOM poqseze IOUT <= AVC A'IUVA OOL -

a1L] 00} POxIOM SEY IOUIW <= AVG ULV OOL .

sodey uondeoxg

youn” Yoo|veany & uo svedde []1M ey 8100888 UB JEYIEYM GUTUIA}epP BVY) BayNI oY) o1e Auimoljo4

‘INADA LAOd

17a

«HOP AO ONG se.

seynuUTa ¢ enum 20 snid #1 B[eeul 10) potted eoBI5)-

seynulu ¢ enuTU 30 Enid et BYBeIq J0OJ potted aowsry-

seqnNUTW PUB sINOY UT eae BeINAY JaYy{O [TYy-

snoy UF jo BYypezpuUNY pus sINOY UI UMOYES BI BINOY YN- “LON

0 I $10 z 10°9

0:0 0 gO I 10:€ BAB [IV

0:0 0 00:0 0 00:0

TOMEI CT TESA AVITUNG TRH, WON] HES AUTEN HES] — PIyIO MA SMT], “Ys yO AUG]

‘Ba[nYy UOTVBING [Vop/yvorg

s[veW Jo JequINU paedxe UBY) sso] BI MORE] B(VoU Jo JequUiNU <= STWAW Mad OOL «

84 Bolg JO oquINU pezedxe UBYy Sse] BI UAxe] SYveIg Jo equUINU <= SYYTUA Mad OOL -

s[eem Jo JequInu peyedxe UBY 1078013 BI UEXe) eyReW Jo zaQuINU <= GTVAW ANVW OOL .

$4 Beg JO JoqUINU peyedxe URY] 1078913 BI UOYe) BXREIG Jo 4equINU <= SYVYUA ANVW OOL «

UOTJEANP [BOM pewedxe UeY) JoyBaI3 BI UEYw, [Bow Jo UOTVBINP <= TWHW ONO’ »

UOTJBINp [BOW pa}dedexe ULYy 10710Y8 BI B[eeM Jo UOTWRANP <= "TWYW LYOHS .

LoOrwaNnp FveIq peyedxe UvY) 1edU0] BI OY) Yworg Jo UOTVeINP <= YWANA ONO’

UOTJBINP FRG poyvedxe UvYyy 10710Y6 81 YBeIq JO UOTNVINp <= YVAN LYOHS .

(MO[Oq Se[NY VOIVBANG [Va;/Yeerg oes ‘syvou! puv syxReIg Jo UOTWEINp pue JequINU peWedxe ey} 103 OJ)

peyxtOmM ult) JO NOW oY) UO spuadep s[eaW pUe sYReIG Jo UOTWeINpP puke JoquINU oY,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.