# Amicus Curiae Brief — Tyson Foods, Inc. v. Bouaphakeo ex rel. Situated, 135 S. Ct. 2806 (2015) (No. 14-1146) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0547%3A23 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2015 ## Text No. 14-1146 IN THE Supreme Court of the United States TYSON FOODS, INC., Petitioner, v. 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 1 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 ss 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 ll 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) 1V 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 Vv 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 vl 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. vu 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 ix Smulow v. Southwestern Bell Mobile System, Inc., 323 F.3d 32 (1st Cir. Sperling v. Hoffman-La Roche, 24 F.3d 463 I, 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 x 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 xi 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 l 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. 2 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. 3 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 4 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, 8) 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 6 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 7 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 8 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). 9 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 10 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. 11 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 12 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 13 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 14 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 15 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 16 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. 17 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 18 “[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 19 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’). 20 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). 21 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 22 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 23 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 24 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 25 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 26 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’ ). 27 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 28 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 29 “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. 30 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 31 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 32 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 33 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). 34 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 35 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 la 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 2a 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. 3a 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 4a 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) 5a 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 6a 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 Sa 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 9a 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. 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