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

No. 14-1146

IN THE

Supreme Court of the Anited States

TYSON Foops, INC..

Petitioner,

Vv.

PEG BOUAPHAKEO, et al., individually and on

behalf of all other similarly situated individuals,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICI CURIAE

CIVIL PROCEDURE PROFESSORS

IN SUPPORT OF RESPONDENTS

eee

David N. Rosen

David Rosen & Associates,

P.C,

400 Orange Street

New Haven, CT 06511

(203) 787-3513

(drosen@davidrosenlaw.com)

Counsel for Amici Curiae

Civil Procedure Professors

September 29, 2015

l

TABLE OF CONTENTS

TABLE OF AUTHORITIES... cece ceecceeeeseeeeees 11]

INTEREST OF AMICI CURIAE ....0........cccccccesesees

INTRODUCTION AND SUMMARY OF

IIT iissiidestonpincnibeididvonisietanesibasiasastbasaieiuinesmsenteit

I. THE APPROACH TO EVIDENCE IN

THIS CASE HAS TRADITIONALLY

BEEN USED IN FLSA CASES AND IS

USED IN LITIGATION ACROSS WIDE

SWATHS OF THE LAW .....000. eens

Il. THE RULES ENABLING ACT ALLOWS

CLASS-ACTION LITIGATION WHERE

SUCH LITIGATION IS CONSONANT

WITH THE SUBSTANTIVE LAW, AS

ae Ne sceessisicntrnitseenaeisnenniccindndaseianatladditenstsnnatae

A. The Rules Enabling Act Requires

Fidelity to the Substance of Both

Federal and State Law................0.....000008

B. FLSA Litigation Has’ Long

Proceeded on a Group-Wide Basis...........

II. DUE PROCESS DOES NOT GIVE A

DEFENDANT THE RIGHT TO

LITIGATE ALL DEFENSES

HOWEVER IT PLEASES, AND TYSON

HAD EVERY APPROPRIATE

OPPORTUNITY TO RAISE ALL ITS

NE hiciinsisentaniniicinesstitesenccnernapinbsctnicsciodnsadd

**

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A. Tyson’s Interest Was in Putting

Forward Its Defenses on the Merits,

PIED IID TI veveccevcescsescncncsisctensenvenenes 21

B. Tyson Received Ample Procedural

I icininnesersinssininnnbiviinciacenneinemiisensenenes 24

C. The Governmental Interests in

Class Litigation Were Very Strong

aE SA Rete Das Chas aD 27

D. There Was Sufficient §Non-

Statistical Evidence To Support the

Liability Verdict, Making Statistical

Evidence as to Damages

Appropriate Under Mt. Clemens’

“Just and Reasonable Inference”

i. 2. dasemeieensnaaaeaes 30

REE ae eee biaealaaet nals Mapecenrennes 33

APPENDIX (List of Amict) ..........c..ccccccceeceeeceeeeeneevees la

ili

TABLE OF AUTHORITIES

Page(s)

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

RE etm TRE I RSS Sea eee me Pe hl 24, 28

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

REE REE Ae rere ar. 9, 12, 13, 16,

18, 21, 30, 31, 32

Atlantic Sounding Co. v. Townsend, 557 U.S.

REESE Cs A ce ee PE 33

Brennan v. General Motors Acceptance Corp..,

482 F.2d 825 (5th Cir. 1973) 0.00... 17

Business Guides, Inc. v. Chromatic Commc’ns

Enters., Inc., 498 U.S. 533 (1991)... 15

Califano v. Yamasaki, 442 U.S. 682 (1979)............. 24

Callahan v. City of Chicago, 78 F. Supp. 3d

791 (N.D. Ill. 2015), appeal pending, No.

REESE SRY SNE AS SNe 7-8

Castaneda v. Partida, 430 U.S. 482 (1977) .......0..... 11

City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687 (1999)............00000. 33

Comcast Corp. v. Behrend, 133 S. Ct. 1426

i ia 10

Daubert v. Merrell Dow Pharm., Inc..,

608 U.S. 579 (1983) ............0...ccccccccecceees 3, 4, 11, 25

Donovan v. New Floridian Hotel, Inc.,

676 F.2d 468 (11th Cir. 1982)..........00c ee. 17

Garcia v. Tyson Foods, Inc., 770 F.3d 1300

| RSPR SER apace aioe PPA 13, 17, 31

iV

Gasperini v. Center for Humanities, Inc.,

Be ee ee eI pircserneectssiovcisnidsernengeccbebarciveseene 33

Grevhound Lines, Inc. v. Sutton, 765 So. 2d

rr rr cecaeeaiaeamoncen 10

Grochowski v. Phoenix Constr., 318 F.3d 80

a edemincasiaal 7

Hamdi v. Runsfeld, 542 U.S. 507 (2004)... 19

Herman v. Hector I. Nieves Transp., Inc..

91 F. Supp. 2d 435 (D.P.R. 2000), aff'd,

Ee 6 fo Le. Reon mee 17

Martin v. Selker Bros., Inc., 949 F.2d 1286

ge EN RE RAR RTE tines airs aed eee 17

Mathews v. Eldridge, 424 U.S. 319 (1976) ..... 5, 6, 19,

20, 21, 27, 28

McCarthy v. Paine Webber Grp., Inc.,

164 F.R.D. 308 (D. Conn. 1905)..............002....06.. 27

McLaughlin v. DialAmerica Mktg., Inc.,

Oe I, DU Cs BOD vicisesceccceisscncscesess 17

Merck & Co. v. Garza, 347 S.W.3d 256

(RNB AO cea eens 2 Se Ae re 11

Merrell Dow Pharm., Inc. v. Havner,

Re ee Pe IE, ED avn cccncsdcdecsscescinsvecces 10

Mt. Clemens Pottery Co. v. Anderson,

149 F.2d 461 (6th Cir. 1945), revd and

remanded, 328 U.S. G80 (1946) ..........c cece eee 16

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

a clacdhadiais 13

Phillips Petroleum Co. v. Shutts, 472 U.S. 797

Vv

Reeves v. Sanderson Plumbing Prods., Inc..,

SO i a 32

Reich v. Southern New England Telecomms.

Corp., 121 F.3d 58 (2d Cir. 1997) .............csc00.000 16

Roth v. Islamic Republic of Iran, 78 F. Supp.

I a clait 10

Shady Grove Orthopedic Assocs. v. Allstate

Bae, C., BE Gh ee Ge COD vhs xacnccsnceccccscecescecess 12

Tuf Racing Prods., Inc. v. American Suzuki

Motor Corp., 223 F.3d 585 (7th Cir. 2000)......... 33

United States v. Davis, 40 F.3d 1069 (10th Cir.

REN REE AES AP 3 SERGE CERES CST SIE pata © BeBe ae REY Pare 11

Wal-Mart Stores, Inc. v. Dukes, 131 8S. Ct. 2541

ata a te a dlimeiiaiine 2, 20, 23, 25

Wilkinson v. Austin, 545 U.S. 209 (2005)......000000.... 19

CONSTITUTION, STATUTES, AND RULES

a, ENE,

Fair Labor Standards Act of 1938, 29 U.S.C.

INR 7 scaaallaiicusasioaddacsioasanean passim

I Oo i 14, 15, 16

a | REESE pee erate 14, 15

Portal-to-Portal Act of 1947, ch. 52, 61 Stat. 84 ....... 9

Rules Enabling Act, 28 U.S.C. § 2071 et seg. ....passim

aaa ask cc naterenennialdsenitocdits 12. 14

Be ase I itickinseensceascnesnncancinces om |: ee

vl

Iowa Wage Payment Collection Law, Iowa

I IIE nsececeseratesseancosesennicnnesnns passim

ere ee ee 15

Fed. R. Civ. P.:

| ARIE SAIEI Seno errr SOME oe Perea ORR RO EEO EE 29

gE EERE RSS SRI Ae aetna toe Om 20

SE Ui caiihchiniectsikeinsupedesiaenidadsanmaiataabasmaeaiaientuniiéanmes 20

EE Ee Aaa PE ies 2. 15, 16, 24, 30

AA a To poe IES § Bel EMA Ramee AB 2

aes 2, 25

IE ENS See ER ee oe 2

Rule 23(b)(3).................:00222-2, 0, 18, 20, 24, 25, 28

I deaiieinis cacedecapiniseavinteapannnttaiidaantesehanbbniitenas 25

Fed. R. Evid.:

te od eles SSE ES vane 8A) REN Bea) 8, 11, 25

A SERPENT RDS Se ROO W RENEE Me REELS 4

gE aS AES AES EE PAA a at RNR Ea Ate 1]

OTHER AUTHORITY

Federal Judicial Center, Reference Manual on

Scientific Evidence (3d ed. 2011)..................:. 9, 10

David H. Kaye & David A. Freedman.

Reference Guide on Statistics ................:000006+ 9,10

Daniel L. Rubinfeld, Reference Guide on

ESE SEE IE SA ee 10

vil

Albert B. Gerber & S. Harry Galfand,

Employees Suits under the Fair Labor

Standards Act, 95 U. Pa. L. Rev. 505 (1947) ..... 13

Tobias Barrington Wolff, Discretion in Class

Certification, 162 U. Pa. L. Rev. 1897 (2014)...... 24

l

INTEREST OF AMICI CURIAE'

Amici are law professors who teach and write

about civil procedure, class actions, and complex

litigation, and are concerned about petitioner's

arguments on (1) the use of statistical and other

representative proof, (2) the Rules Enabling Act, and

(3) due process. Amici respectfully seek to offer the

Court their professional academic perspective on

these particular issues.2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Plaintiffs in this case, employees in the Tyson

Foods Storm Lake hog processing plant, do hard,

dirty, dangerous work. To protect themselves and

the hygiene of Tyson’s pork products, plaintiffs wear

personal protective equipment (PPE). All employees

wear standard PPE, and most wear a variety of

additional PPE, with the types worn overlapping

substantially. During the time period at issue in this

case, plaintiffs were all paid on Tyson's “gang time”

system, which as a matter of uniform company policy

did not compensate them for either the time they

spent donning and doffing the standard PPE

described above. or the time they spent walking to

1 No counsel for a party authored this brief in whole or in

part. and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than the amici curtae or their counsel made a

monetary contmbution to its preparation or submission. The

parties have consented to the filing of this brief.

2 A full list of amici is provided in the appendix to this

brief. Amici join this bnef as individuals: institutional

affiliation 1s noted for informational purposes only and does not

indicate endorsement by institutional employers of positions

advocated.

2

their work stations. The plaintiffs also alleged, and

the jury found, systematic underpayment in

connection with the additional knife-related PPE

worn by nearly all workers.

Plaintiffs alleged Tyson failed to pay overtime

owed under the Fair Labor Standards Act of 1938

(FLSA) and, by incorporation of the FLSA, the Iowa

Wage Payment Collection Law, Iowa Code (IWPCL).

The district court certified a Rule 23 class action

after a careful and extended analysis of the required

elements of Rule 23(a) and Rule 23(b). The court

rejected plaintiffs’ proposed class as overbroad and

substituted a more narrowly drawn one for which

common answers to common questions would or

could resolve critical issues in an across-the-board

manner. The court also rejected plaintiffs’ suggestion

that a Rule 23(b)(1) class action could be certified, in

light of the individual money damage claims at issue.

The court’s decision to certify under Rule 23(b)(3)

was consistent with subsequent dicta by Wal-Mart

Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011)

(“we think it clear that individualized monetary

claims belong in Rule 23(b)(3)”).

After years of pre-trial wrangling, there was a

class-wide trial at which plaintiffs presented

multiple forms of evidence. They presented

testimonial evidence as to Tyson’s liability, from both

representative plaintiffs and Tyson’s own managers.

They also presented exhibits and statistical evidence

based on an industry-standard time study of worker

behavior in the very Tyson plant where all class

plaintiffs worked. And they presented individualized

damage determinations computed from a

combination of averages from the time study and

millions of Tyson’s own employee time-sheet records.

Tyson vigorously defended itself at this trial.

3

A jury ~turned a verdict with specific answers to

common questions, specifically finding Tyson liable

for unlawfully failing to compensate plaintiffs under

some of their allegations. The jury awarded damages

that were both substantial and considerably less

than what plaintiffs had requested.

Notably, Tyson declined to object under Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), to plaintiffs’ time-study evidence, so it has

conceded that this evidence was relevant and

admissible. And Tyson has not sought review of the

Eighth Circuit’s affirmance of the district court's

denial of Tson’s renewed motion for judgment as a

matter of law, so Tyson has conceded that plaintiffs’

evidence is legally sufficient to support a verdict.

Tyson now seeks a ruling from this Court that

representative litigation using relevant, legally

sufficient evidence violated not only Tyson’s due

process rights, but also the Rules Enabling Act

(REA). Tyson also advances a radical theory of

evidence that would destabilize many fields of law.

Tyson tells this Court (at 38) that the time-study

evidence admitted in this case is “biased” and

“unreliable,” and (at 42) that it is “unrepresentative”

and that “no reasonable inferences may be drawn

from” it. Tyson also contends (at 36) that admission

of this evidence violated its due process rights

because it “lessened plaintiffs burden of proof and

undermined Tyson's ability to defend itself.” Tyson

argues that this same supposedly lessened burden of

proof independently constitutes a Rules Enabling Act

violation, because the burden of proof embodies a

substantive right. Jd.

4

Evidence that is biased, unreliable, and

unrepresentative, from which no_ reasonable

inferences may be drawn, and whose use violates

both due process and the Rules Enabling Act is not

admissible. Indeed, both Daubert and Federal Rule

of Evidence 402 provide bases to object to the

admissibility of such evidence. But Tyson did not

object to the admission of the evidence in question.

This Court should reject all of Tysons

arguments. In light of Tyson’s reliance in this Court

on supposed deficiencies of evidence it failed so

completely to challenge, the most reasonable

disposition of this case would be to dismiss the writ

as improvidently granted. Should the Court instead

take up the merits of Tyson’s arguments, it should

reject them, and affirm the Eighth Circuit, for the

following reasons addressed in more detail

throughout this brief.

First, the Court should reject the evidentiary

principle that Tyson claims as the basis for its REA

and due process claims. Tyson states (at 19) that

“{njo court would allow an individual employee to

prove that he worked unpaid overtime by submitting

evidence of the amount of time worked by other

employees who did different activities that took a

different amount of time to perform.” Tyson provides

virtually no authority for the principle underlying

this contention, and the empirical claim itself is

demonstrably false: In FLSA actions alone, many

courts have done precisely what Tyson says no court

would do. Dispositive as it is, that is a side point to

the threat posed by Tyson’s new theory of evidence.

Courts allow the kind of evidence Tyson disparages

in many substantive fields of law, provided that such

evidence meets the usual case-specific tests of

5

relevance and admissibility. In this context, those

tests police not for the presence of any differences,

but rather for material ones. Any endorsement of

Tyson's position here would destabilize many areas

of state and federal litigation. See Part I, infra.

Second, Tyson’s Rules Enabling Act argument

fails even to engage with lowa substantive law or the

federal law that it incorporates. The plain text of the

FLSA, and many years of federal court practice

based on it, establish that the FLSA embraces

representative litigation, including both

representative testimony and statistical evidence.

Absent any indication to the contrary—and there is

none—lowa state law also should be understood to

welcome such evidence in aggregate litigation. The

litigation of plaintiffs’ IWPCL claims using a Rule

23(b)(3) class action with representative evidence is

thus entirely consistent with Iowa substantive law.

Therefore, the trial conducted here did not violate 28

U.S.C. § 2072(b). See Part II, infra.

Third, even if Tyson has a due process interest of

the sort it proclaims here, that interest was honored.

As the record and Tyson’s own merits brief together

indicate, Tyson raised every one of its now-claimed

defenses at trial. It is true that Tyson did not get to

raise every one of these defenses via cross-

examination of more than 3,000 class plaintiffs. But

the fact that Tyson has a due process interest in

raising defenses does not give it a trump card to do

so in unlimited fashion. This Court has repeatedly

held out the three-pronged test of Mathews v.

Eldridge, 424 U.S. 319 (1976), including when the

most fundamental liberty interests are at stake, as

the framework for determining the ambit of a

procedural due process interest. If the Court takes

6

up Tyson's due process arguments, it should use the

familiar Mathews framework. Applying Mathews,

the Court can only find that the trial in this case

easily satisfied Tyson’s due process interests. See

Part III, infra.’

ARGUMENT

I. THE APPROACH TO EVIDENCE IN THIS

CASE HAS TRADITIONALLY BEEN USED

IN FLSA CASES AND IS USED IN

LITIGATION ACROSS WIDE SWATHS OF

THE LAW

Tyson argues (at 36) that allowing plaintiffs to

use statistical evidence in this case “masked

important differences” across individuals, by

allowing plaintiffs to focus on hypothetical rather

than real plaintiffs.

As a threshold matter, this argument is

inconsistent with Tyson’s own practice in the

ordinary course of business, in which it used

precisely this type of average time study to pay—or

not pay—workers for donning, doffing, and walking

time. JA446-55. If Tyson could reasonably use

average time-study data to determine its everyday

compensation of Storm Lake workers, the same type

3 This brief addresses in detail only those issues related to

the first Question Presented. Tyson's argument as to the

second Question Presented should also be rejected, both

because it mixes up merits and standing and because it

arrogates to Tyson third-party standing to litigate interests of

parties adverse to it. Cf. Phillips Petroleum Co. v. Shutts, 472

U.S. 797, 805 (1985) (explaining that a party might have a

“distinct and personal interest” as to the rights of absent class

members due to the first party’s interest “in seeing the entire

plaintiff class bound by res judicata just as [the first party] is

bound”). Respondents’ merits brief addresses the second

Question Presented in detail.

7

of data may reasonably be used to estimate donning,

doffing, and walking time in litigation under the

FLSA.

Further, Tyson’s argument applies in equal

measure to non-statistical evidence. Any use of

evidence for representative purposes would in some

sense “mask individual differences,” Pet. Br. 33, and

thereby “lessen” plaintiffs’ burden of proof, id. at 36.

But courts have many times allowed _ the

representative use of testimony from a small share of

plaintiffs in representative-action FLSA cases where,

as here, class members are similarly situated as to

basic job duties, gear, and company-wide

compensation policies (see Part II.B, infra). The test

is whether workers are similarly situated given all

the facts and circumstances of the case, not whether

they are identical in each and every respect.

Tyson also asserts that “[nJo court would allow

an individual employee to meet his burden of proving

that he performed work for which he was not

properly compensated by submitting evidence of the

amount of time worked by other employees who did

different activities requiring a different amount of

time to perform.” Pet. Br. 36 (internal quotation

marks and citation omitted). But Tyson points to no

text in the FLSA that would yield such an

evidentiary rule, and the case law Tyson cites is as

inapposite as it is meager.4

4 Tyson cites only a 12-year-old case from the Second

Circuit, Grochowski v. Phoenix Constr., 318 F.3d 80 (2d Cir.

2003), which affirmed a directed verdict because several non-

testifying plaintiffs had failed to “point to any evidence

establishing the amounts they were paid,” id. at 88-89

(emphases added), and a recent district court case, Callahan v.

City of Chicago, 78 F. Supp. 3d 791, 816 (N.D. Ill. 2015)

8

There is nothing unusual about an individual

employee meeting Ais burden using evidence about

other employees, even when this evidence includes

some “differences.” The relevant question is not

whether there are any differences, but rather

whether those differences are small enough that the

proffered evidence meets Rule 401’s requirement

that evidence (a) “has any tendency to make a fact

more or less probable than it would be without the

evidence” and that this fact (b) “is of consequence in

determining the action.”

Rule 401 thus instructs that the pertinent

question is whether evidence offered about the work

done by a set of workers who testify or were included

in Dr. Mericle’s time study could make it “more or

less probable” that Tyson unlawfully failed to

compensate a plaintiff for her own work time. Here

the answer is yes, because Tyson's failure to pay the

workers for their donning, doffing, and walking

activities was the result of a plant-wide policy;

because all the workers in this case wore standard

gear; because there was substantial overlap in the

additional gear they wore; because all worked daily

shifts in a plant that regularly ran for more than 40

hours a week; and because the jury was properly

instructed on the use of representative proof. The

time-study data buttressed plaintiffs’ showing of a

systematic pattern and _ practice of wunder-

compensation at Storm Lake, a fact surely relevant

to plaintiffs’ claims. Moreover, the district court

never had occasion to rule on the admissibility of the

(granting summary judgment on grounds unrelated to the text

Tyson quotes), appeal pending, No. 15-1318 (7th Cir.). The

facts and legal issues in those two cases have nothing to do with

this case.

9

evidence Tyson now disparages, because Tyson failed

to challenge it when the time was ripe.

Unavoidably, no one will ever know the exact

amount of time plaintiffs in this case worked without

legally required compensation, because Tyson failed

to keep proper time records. The best that employees

can possibly do in this situation, as this Court

recognized decades ago, is to provide evidence

sufficient to create a “just and reasonable inference”

of the damages owed. Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 687 (1946), superseded on

other grounds by statute, Portal-to-Porta] Act of 1947,

ch. 52, 61 Stat. 84. Under the FLSA, plaintiffs may

meet this burden using representative evidence,

including plant-wide data. See Part II.B, infra.

The Court should be mindful, moreover, of the

broader implications of Tyson's uncabined attack on

quantitative evidence. Tyson’s evidentiary principle

would prove a significant obstacle to the use of

representative evidence in general, and statistical

evidence in particular, whether by plaintiffs or

defendants, and across numerous fields of law. The

Federal Rules of Evidence, and the body of common

law built up around them, are flatly inconsistent

with such a result.5

5 Vast areas of litigation—involving both individual and

class actions—would be radically changed if the Court were to

question the use of statistical or other representative proof as a

tool for establishing facts relevant to a particular individual

case. The Federal Judicial Center's Reference Manual on

Scientific Evidence, for example, has two chapters directly

related to the use of statistics in litigation. The Reference

Guide on Statistics opens with the observation that “[s]tatistical

assessments are prominent in many kinds of legal cases,

including antitrust, employment discrimination, toxic torts, and

10

Any time a material issue depends on a

counterfactual object—what would have happened in

the absence of the alleged wrongful activity?—there

will be no way to determine facts at the center of

litigation without using evidence based on other

facts. Tyson's suggested evidentiary standard would

transform the ability of litigants to use statistical

evidence across many areas of the law; just a few

such areas include damages determinations in

wrongful death actions;6 liability related to

pharmaceutical products;’ antitrust;§ discrimination

voting mghts cases, because “[s]tatistical studies suitably

designed to address a material issue generally will be

admissible.” David H. Kaye & David A. Freedman, Reference

Guide on Statistics, in Federal Judicial Center, Reference

Manual on Scientific Evidence 211, 213, 214 (3d ed. 2011)

(“Reference Manual”). The Reference Guide on Multiple

Regression notes that multiple regression analysis has been

used in myriad cases involving antitrust, sex and race

discrimination, voting rights, the deterrent etiect of the death

penalty, public utility regulation, and intellectual property. See

Daniel L. Rubinfeld, Reference Guide on Multiple Regression, in

Reference Manual 303, 306-07.

6 See, e.g., Roth v. Islamic Republic of Iran, 78 F. Supp. 3d

379, 402 (D.D.C. 2015) (finding it reasonable to base damages

in a wrongful death action on experts’ application of a forensic

economic mode! to statistical earnings data); Greyhound Lines,

Inc. v. Sutton, 765 So. 2d 1269, 1277 (Miss. 2000) (holding that,

under Mississippi law, there is a rebuttable presumption in

favor of using national averages of earnings to calculate lost

earnings in a wrongful death action).

7 See, e.g., Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d

706, 718 (Tex. 1997) (holding that plaintiffs may prove liability

using epidemiological studies).

8 See, e.g., Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433

(2013) (reversing lower court as to certification not because an

econometric model was used, but rather because the proposed

model did not measure the right damages).

11

law: and the use of DNA evidence in criminal

prosecution. !0

Tyson's proffered evidentiary limit would

destabilize the myriad areas of law in which courts

have long allowed statistical evidence. The proper

test for whether such evidence is appropriate is not

due process, unmoored from the facts of a case.

Rather, it is the tried and true framework set forth

by Rules 401 and 702. Evidence that tends to make

a consequential fact more or less probable, and which

meets the Daubert gatekeeping standards. should be

admitted and tested through the “traditional and

appropriate means of attack[]", namely, “|vjigorous

cross-examination, presentation of contrary evidence,

and careful instruction on the burden of proof.”

Daubert, 509 U.S. at 596. Material differences are a

reasonable basis to reject evidence; the presence of

any difference is not.11

Regardiess of how it disposes of this case. this

Court should make ciear that nothing in its decision

should be understood to undermine this framework.

¥ See Castaneda v. Partida, 430 U.S. 482. 496 (1977)

{taking judicial notice of statistical methods for evaluating

whether jury-selection method was discriminatory).

10 See United States v. Davis, 40 F.3d 1069. 1075 (10th Cir.

1994) (finding that district court did not abuse discretion by

allowing statistical DNA evidence to be admitted).

Il See, e.g., Merck & Co. v. Garza, 347 S.W.3d 256. 266

(Tex. 2011) (rejecting use of epidemiological study not because

it involved other people, or even because those people took a

different dosage of the drug at issue, or for a different amount

of time, but rather because plaintiff took a much different

dosage for a much different time).

12

Il. THE RULES ENABLING ACT ALLOWS

CLASS-ACTION LITIGATION WHERE

SUCH LITIGATION IS CONSONANT WITH

THE SUBSTANTIVE LAW, AS IT IS HERE

It is undisputed that the Rules Enabling Act

prevents this Court from promulgating “general

rules of practice and procedure,” 28 U.S.C. § 2072(a),

that change substantive rights, id. § 2072(b).

Tyson argues (at 36) that the district court's

allowance of the statistical evidence discussed above

“lessened plaintiffs’ burden of proof,” thereby

impermissibly abridging Tyson's substantive rights.

Intrinsic to this argument is Tyson's view that, to

win, a plaintiff class must offer proof that would be

sufficient to win in a set of separate, individual-

specific trials for each plaintiff in the class. As the

Shady Grove plurality put this idea:

A class action, no less than traditional

joinder (ot which it is a species), merely

enables a federal court to adjudicate claims

of multiple parties at once, instead of in

separate suits. And like traditional joinder,

it leaves the parties’ legal mghts and duties

intact and the rules of decision unchanged.

Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559

U.S. 393, 408 (2010) (plurality).

But that way of understanding the REA question

does not apply here, because the federal and state

substantive law relevant to the present case have

long permitted wage-and-hour plaintiffs to prove

claims on a representative group basis. Decades of

FLSA cases are in accord, starting most famously

with this Court's decision in Mt. Clemens, which

approved the use of representative testimony from

13

eight employees to establish an employer's group-

wide liability under the FLSA to a group of 300 in

total. For a number of district court cases from the

1940s allowing such representative testimony even

before Mt. Clemens, see Albert B. Gerber & S. Harry

Galfand, Employees’ Suits under the Fair Labor

Standards Act, 95 U. Pa. L. Rev. 505, 508-09 (1947)

(collecting cases in which there were “‘marked

differences in employment.” and explaining that.

according to practice at the time, there need only be

“a peg upon which to hang the statutory language

‘employees similarly situated’ [for] the action [to] go

forward’) (footnotes omitted); see also Perez v.

Mountaire Farms, Inc., 650 F.3d 350, 371-72 (4th

Cir. 2011) (approving use of average from expert's

time study in the same way such average was used

here); Garcia v. Tyson Foods, Inc., 770 F.3d 1300,

1307 (10th Cir. 2014) (describing representative

testimony and time-study evidence as competent

evidence that can contribute to a “finding of class-

wide liability’).

Thus Tyson misapprehends the REA question. It

is not whether the burden of proof was lessened as to

particular individual plaintiffs’ claims. As even

Tyson's own proposed jury instructions reflected

here, plaintiffs faced the usual burden of proof. The

REA question here concerns the substance of what

plaintiffs had to prove under lowa law. In other

words, the question ccncerns not the burden of proof,

but rather what the object of proof is.

Plaintiffs did not need to provide individual-by-

individual presentation of evidence to establish the

elements of their claims, because long practice

establishes that. under the FLSA's substantive

provisions, claims of groups of plaintiffs may be

14

proved on a representative basis. The cases clearly

establish that FLSA claims brought under 29 U.S.C.

§ 207 may be proved once, on a group-wide basis.

While this practice has developed in actions brought

under 29 U.S.C. § 216(b), the representative-action

section of the FLSA, §216(b)’s procedural terms

could hardly make group-wide liability the object of

proof if § 207 did not allow it.

That is critical for this case, because the IWPCL

incorporates § 207’s substantive terms. As a general

rule, plaintiffs making IWPCL claims that spring

from the FLSA may prove them the same way they

would prove the underlying FLSA claims. Barring

express reason to think otherwise—and a review of

both the IWPCL’s text and Iowa case law indicates

that no such reason exists here—plaintiffs may prove

their IWPCL claims the same way they would prove

them directly under the FLSA. Thus, plaintiffs may

prove their claims on a group-wide basis, using the

same representative evidence they could use directly

under the FLSA.

A. The Rules Enabling Act Requires

Fidelity to the Substance of Both

Federal and State Law

It is appropriate for this Court to promulgate,

and for the lower courts to apply, “general rules of

practice and procedure,” 28 U.S.C. § 2072(a), so long

as these rules do not change the substantive rights

embodied in either congressional or state legislation,

or state common law. The point of the second part of

the Rules Enabling Act, 28 U.S.C. § 2072(b). was,

and properly considered remains, the delineation of

the boundaries of the judiciarys legitimate

institutional authority. “Congress wanted the

definition of substantive rights left to itself in cases

15

where federal law applies, or to the States where

state substantive law governs.” Business Guides,

Inc. v. Chromatic Comme’ns Enters., Inc., 498 U.S.

533, 565 (1991) (Kennedy, J., dissenting).

It is impossible for the REA to pose an obstacle to

the representative FLSA collective-action aspect of

this case, both because Rule 23 plays no role under

the direct FLSA claims and because the aggregate

litigation of the FLSA claims in this case is blessed

by the plain text of the procedural terms of the FLSA

itself, see 29 U.S.C. §216(b). The sole statutory

requirement qualifying the characteristics of

individuals who can be represented in aggregate

litigation under § 216(b) is that they be “similarly

situated.”

But the FLSA’s substantive terms nevertheless

are relevant to REA considerations, because Iowa

state law incorporates these terms. The IWPCL

declares that “[a]Jn employer shall pay all wages due

its employees.” lowa Code §91A.3. Because § 207 of

the FLSA creates obligations to pay wages, it can be

the source of an employer's obligation to pay wages

“due its employees” under the IWPCL. That is the

basis—and the only basis—of plaintiffs’ claims under

the IWPCL in this action. For workers in the lowa

Rule 23 class, then, the IWPCL claims are

established if and only if those workers’ FLSA claims

under § 207 are established. Accordingly, substantive

rights under § 207 of the FLSA also are directly

grounded in lowa state law.

B. FLSA Litigation Has Long Proceeded on

a Group-Wide Basis

The substantive policy of allowing a group of

FLSA plaintiffs to satisfy their burden of persuasion

16

through representative proof is exhibited in the

development of case law over nearly seven decades.

This long experience evinces a clear stance in favor

of aggregate litigation in which plaintiffs need not

introduce evidence individual-by-individual.

Consequently, representative evidence—whether

testimonial, statistical, or otherwise—is appropriate

in aggregate actions brought under § 207.12

Courts adjudicating FLSA claims in

representative actions have long permitted evidence

from a small fraction of plaintiffs in favor of the

aggregation of those represented. For example, Mt.

Clemens, which pre-dated Rule 23's expansion in

1966, involved the testimony of just eight workers

out of the 300 represented. Mt. Clemens Pottery Co.

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

allowance for some workers to testify for the benefit

of all represented plaintiffs has continued with

regularity, see Reich v. Southern New England

Telecomms. Corp., 121 F.3d 58, 66-68 (2d Cir. 1997)

(allowing representative testimony of 39 employees

to support an award of back wages for approximately

12 Despite the exclusive focus Tyson trains on plaintiffs’

use of time-study averages. Tyson's argument would apply no

less to the voluminous testimonial evidence provided by

representative plaintiffs and Tyson managers, which Tyson has

ignored in briefing this Court. The testimonial evidence is of a

piece with the statistical evidence, because both tend to

establish that Tyson unlawfully failed to compensate its

workers for their work time. If the time-study averages

“lessened plaintiffs’ burden of proof.” as Tyson maintains, then

all the testimonial evidence did, too. There is no principled way

for this Court to find statistical evidence bad under the Rules

Enabling Act, but representative testimonial evidence good. If

anything, presenting both testimonia! and empirical evidence is

more rigorous and reliable than relying on testimony alone, so

this practice should not be discouraged as a general rule.

17

1,500 employees in total); Donovan v. New Floridian

Hotel, Inc., 676 F.2d 468, 472-73 (11th Cir. 1982) (23

testifying employees sufficient for back wages award

to 207); Brennan v. General Motors Acceptance Corp..,

482 F.2d 825, 829 (5th Cir. 1973); McLaughlin v.

DialAmerica Mktg., Inc., 716 F. Supp. 812, 824-25

(D.N.J. 1989) (liability for approximately 350 non-

testifying employees based on trial or deposition

testimony of 43 witnesses); and very recently, see

Garcia, 770 F.3d at 1307 (describing representative

testimony as competent evidence that can contribute

to finding of “class-wide liability’).

As one district court whose judgment was

affirmed on appeal explained:

{I]n a typical FLSA case, the [plaintiff]

presents testimony from some of the affected

employees as part of the proof of a prima

facie case. The [plaintiff] then can rely on

testimony and evidence from representative

employees to meet the initial burden of proof

requirement.

Herman v. Hector I. Nieves Transp., Inc., 91 F Supp.

2d 435, 446 (D.P.R. 2000), aff'd, 244 F.3d 32 (1st Cir.

2001).

Nor is this capacity for aggregate proof limited to

damages. As the Third Circuit recognized, “[i]t is not

necessary for every single affected employee to

testify in order to prove violations or recoup back

wages. The testimony and evidence of representative

employees may establish prima facie proof of a

pattern and practice of FLSA violations.” Martin v.

Selker Bros., Inc., 949 F.2d 1286, 1298 (3d Cir. 1991)

(emphases added); see also Herman, 91 F. Supp. 2d

at 446 (once plaintiff establishes that the FLSA was

18

violated as to testifying employees, “the existence of

the violations as well as an award of backwages may

be inferred for employees that do not testify”)

(emphasis added).

Put simply, decades of federal case law reveal a

clear FLSA policy of allowing plaintiffs to prove both

lability and damages in the aggregate, using

representative evidence. lowa law incorporates the

FLSA provisions that embody this policy. And Iowa

case law gives no indication of any rejection by the

state's courts of the FLSA policy in favor of aggregate

proof by representative evidence. Accordingly, the

IWPCL is properly viewed as favoring a policy of

allowing representative evidence in those cases

where plaintiffs bring FLSA-derived IWPCL claims.

The Rules Enabling Act is thus not violated by

allowing representative evidence to prove liability

and damages in Rule 23(b)(3) actions under the

IWPCL.13

13 All that is left of Tyson's contention to the contrary (at

36) is the qualifier “who did different activities requiring a

different amount of time to perform.” But both common sense

and experience indicate that not all activities done by all

workers in a representative action would be precisely the same:

nor would all require precisely the same “amount of time to

perform. Further, Mt. Clemens made clear that, when

employers unlawfully fail to keep records of unlawfully

uncompensated work time, employees are not required to do the

impossible. The evidence presented by plaintiffs in this case

easily meets the Mt. Clemens “just and reasonable inference”

standard for damages. This evidence, based on a combination

of individual time-sheet records with data from an objective

time study of the very plant where all class plaintiffs worked.

was surely at least as reliable as the testimony of eight

employees that the Mt. Clemens Court found sufficient for

determining damages.

19

Ill. DUE PROCESS DOES NOT GIVE A

DEFENDANT THE RIGHT TO LITIGATE

ALL DEFENSES HOWEVER IT PLEASES,

AND TYSON HAD EVERY APPROPRIATE

OPPORTUNITY TO RAISE ALL ITS

DEFENSES

This Court set forth the framework for

evaluating whether governmental action is

consonant with a person’s due process interests in

Mathews v. Eldridge. That framework involves a

three-pronged inquiry into the risk of deprivation of

the person claiming due process protection, the

protections provided in the procedural mechanism

the government proposes, and the governmental

interest in using the proposed procedure rather than

feasible alternatives. Applying the Mathews

framework shows that class-action litigation fits

comfortably within the bounds of due process in this

case.!4

“Procedural due process imposes constraints on

governmental decisions which deprive individuals of

‘liberty’ or ‘property’ interests within the meaning of

the Due Process Clause of the Fifth or Fourteenth

Amendment.” Mathews, 424 U.S. at 332. But due

process rights are not inflexible trump cards: “due

process, unlike some legal rules, is not a technical

14 The Mathews framework has been applied in

substantive areas involving the most fundamental due process

interests. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 224

(2005) (assignment to super-max prisons) (“we generally have

declined to establish mgid rules and instead have embraced

[the] framework .. established in Mathews”) (Kennedy, J.);

Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (habeas corpus

action) (“Mathews dictates .. the process due in any given

instance’).

20

conception with a fixed content unrelated to time,

place and circumstances.” Jd. at 334. Instead, “(djue

process is flexible and calls for such procedural

protections as the particular situation demands.” Id.

And the protections demanded by the situation here

were provided.

Tyson argues that it has a due process right to

individualized determination as to every individual

claim in this action. But even stipulating that Tyson

has a due process interest here would hardly give

Tyson a trump card allowing it to mount its defense

on whatever terms it prefers. Trial plans regularly

limit both plaintiffs and defendants’ freedom to

maneuver, even in individual actions. No one

believes Rule 16 or Rule 20 or Federal Rules of

Evidence that limit admissibility of relevant evidence

are unconstitutional as a consequence. Yet Tysons

argument would render class __litigation

unconstitutional whenever there are any individual!

questions, even when Rule 23(b)(3)’s requirement

that common questions “predominate” over them is

satisfied.

Further, the trial that occurred in this case was

nothing like the “Trial by Formula” plan that the

Ninth Circuit approved and this Court questioned on

due process grounds in Dukes. Here, Tyson had an

opportunity to mount a defense on every issue it

raises in its merits brief. In some instances, it hurled

fastballs; in others, it lobbed softballs; and in still

others it w .ndered off the mound without delivering

a single pitch. In light of all that, Tyson's insistence

that it was unable to defend itself is baseless.

The governmental-interest prong of the Mathews

test also tilts strongly in favor of aggregate litigation

allowing representative proof. The burdens on the

21

judicial system of Tyson’s suggested alternative to

class-wide litigation—thousands of individual jury

trials with the same questions raised repeatedly on

cross-examination—are obviously prohibitive.

Finally, while Tyson asserts its due process

challenge only in relation to the statistical evidence,

the evidence in the record is ample enough for this

Court to simply avoid the due process question. The

record runs over with non-statistical evidence that

would entitle a reasonable jury to find Tyson liable

here. And the use of Dr. Mericle’s evidence for

determining damages easily falls within the

standard, which this Court elaborated long ago in

Mt. Clemens, that applies when an employer such as

Tyson fails to keep legally required records.

A. Tyson’s Interest Was in Putting Forward

Its Defenses on the Merits, Which Tyson

Did

Mathews teaches that “(t]he fundamental

requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful

manner. 424 U.S. at 333 (quotation marks omitted).

Thus, Tyson's interest was to have its defenses heard

meaningfully when a court adjudicates its employees’

claims, and that interest was vindicated in this case.

At the trial itself, Tyson was afforded a full

opportunity to cross-examine plaintiffs’ witnesses.

On cross-examination, it savagely attacked plaintiffs

expert, Dr. Mericle, concerning supposed

methodological flaws in his time study—and

evidently the attack drew blood, as the jury awarded

far less than plaintiffs requested. Further, Tyson's

own brief lists detailed excerpts from the trial

transcript of testimony by numerous employee

22

witnesses that the jury might have taken as the

basis for rejecting Dr. Mericle’s time study. See Pet.

Br. 30-31.

Tyson contends (at 37) that in individual trials it

could have countered plaintiffs claims “by

demonstrating, through cross-examination of the

plaintiff or the testimony of other employees, that it

took (or reasonably could have taken) much less time

to don and doff the particular equipment that the

plaintiff wore.” Ironically, Tyson makes this

contention only after spending pages of its brief (at

30-35) listing “vivid” examples of just such testimony

that Tyson elicited from plaintiffs’ witnesses. And

Tyson neither called to the stand, nor even sought to

call, any other employees (including, for example,

additional opt-in class members), despite the fact

that no Rule or order of court blocked it from doing

SO.

Tyson’s second example of a defense it could have

raised at an individual trial is no different. It is true

that in an individual trial the company might have

shown that “the plaintiff was compensated for time

spent donning and doffing apart from any K-Code

time, because the particular plaintiff donned

equipment after ‘gang time’ started or when the

plaintiff was paid to setup or clean up the production

area.” Pet. Br. 37. It is also true that in the very

next sentence Tyson cites JA90 for a discussion of an

“example of an employee who [testified he] did all of

his post-shift washing of equipment on paid clean-up

time.” Jd. (emphasis added).

It is thus simply not true that “[i]Jn this class

action Tyson could not raise such individualized

defenses.” /d. Tyson could and did raise them on a

representative basis in the class-wide trial. And, just

23

as the generality of representative testimony in their

favor can benefit plaintiffs as to the entire class, such

testimony couid be expected also to redound to

Tyson's advantage when it favored Tyson.15

Tyson's ability to raise exactly the defenses it

incorrectly says were denied contrasts dramatically

to the procedure this Court rejected in Dukes, where:

A sample set of the class members would be

selected, as to whom liability for sex

discrimination and the backpay owing as a

result would be determined in depositions

supervised by a master. The percentage of

claims determined to be valid would then be

applied to the entire remaining class, and the

number of (presumptively) valid claims thus

derived would be multiplied by the average

backpay award in the sample set to arrive at

the entire class recovery—without further

individualized proceedings.

Dukes, 131 S. Ct. at 2561.

The procedure rejected in Dukes really is Trial by

Formula, because the claims selected for trial would

themselves be sampled, with extrapolation to the

rest of the claims in the class. A defendant snagged

in such a procedure would not be able to raise

defenses relevant to claims that had not been

sampled concerning the “crucial [subjective] question

why was I disfavored.” Id. at 2552. This case, by

contrast, did not involve any such novel procedure,

unrepresentative evidence, or lack of a common

company policy. Nor, as explained above. did the

15 As with its attack on Dr. Mericle, Tyson's success in

such cross-examination might well explain why the jury

awarded plaintiffs substantially less than they requested.

24

trial in this case involve any limitation on Tyson’s

ability to raise defenses that would defeat claims of

class-wide liability, which Tyson did with gusto.

B. Tyson Received Ample Procedural

Protections

With respect to the FLSA collective action, the

procedures here included the standard protections.

The FLSA requires that collective-action members

give written consent to representation, as hundreds

did here. Additionally, represented members of the

collective action must be similarly situated to the

representative _ plaintiffs. The district court

undertook a detailed analysis of that question, and

the case for certifying the FLSA collective action, in

the same memorandum opinion that considered

certification of the Rule 23 class action. The court

expressly found that the factual differences

emphasized by Tyson are “small,” Pet. App. 99a, a

finding to which this Court should defer. See, e.g.,

Califano v. Yamasaki, 442 U.S. 682, 703 (1979)

(abuse-of-discretion standard applies to class-

certification findings); see generally Tobias

Barrington Wolff, Discretion in Class Certification,

162 U. Pa. L. Rev. 1897 (2014) (explaining vital

svstemic importance of discretion, especially as to

fact-bound issues, in class-certification matters).

With respect to the Rule 23(b)(3) class under

lowa law, Tyson had all the usual protections that

attend Rule 23 actions. See, e.g., Amchem Prods., Inc.

uv. Windsor, 521 U.S. 591, 620-21 (1997)

(requirements of Rule 23 are carefully calibrated to

comport with Rules Enabling Act and due process).

It had an opportunity to contest class certification

following an appropriate period of class discovery.

Only after class discovery had occurred, and both

25

sides had made detailed arguments, did the district

court certify the Rule 23(b)(3) class action after

expressly “rigorous” analysis. Pet. App. 95a. Tyson

moved for decertification following this Court's

decision in Dukes. It received a full and fair

consideration of its argument, which was decidedly

weak given that Dukes involved a class action

certified under a different provision of Rule 23(b)—

not to mention the dictum in Dukes affirmatively

stating that damages actions like this one “belong in

Rule 23(b)(3).” 131 S. Ct. at 2558.

After the trial, Tyson renewed its motion for

judgment as a matter of law, and for a new trial in

the alternative. After the district court denied that

motion for the prosaic reason that a reasonable jury

could have found for plaintiffs on the basis of the

record before it, Tyson appealed its loss to the Eighth

Circuit, which properly considered and then rejected

Tyson's argument.

Tyson also declined to avail itself of a number of

procedural mechanisms that were within its reach.

First, Rule 23(f) allowed Tyson to pursue an

interlocutory appeal of class certification.

Notwithstanding the extraordinary constitutional

deprivations and Rules Enabling Act violation Tyson

now claims, Tyson did not do so.

Second, Tyson could have filed a motion to

exclude one or both of plaintiffs’ experts under

Daubert. Tyson now insists (at 42) to this Court that

Dr. Mericle’s time study was “unrepresentative” and

incapable of yielding any “reasonable inference.”

Such alleged defects would render an_ expert's

testimony and related exhibits inadmissible under

Daubert, irrelevant under Rule 401, and thus also

inadmissible. It is hornbook law that our adversarial

26

system places the obligation to object to inadmissible

evidence on a party itself. Even were it to

mistakenly agree with Tyson's description of Dr.

Mericle’s time-study evidence, this Court should

reject Tyson's attempt to do by end-run what it failed

to do forthrightly when the time was ripe.

Third, Tyson could have presented its own time-

study expert to convince the jury that Dr. Mericle’s

figures were inflated. Indeed, Tyson originally

planned to call one Dr. Adams as a rebuttal time-

study expert. The company subsequently determined

that it was “not necessary’ to do so, on the basis of

deposition testimony given by Dr. Mericle and Dr.

Fox. See Def’s. Mem. Supporting Exclusion of Dr.

Adams at 2, ECF 233-1. But, before that time, Tyson

actually told the district court that it would be an

appropriate question for the jury to decide whether

evidence from Dr. Adams or Dr. Mericle was more

reliable. 16

Fourth, Tyson could have chosen not to oppose

plaintiffs’ motion for a bifurcated trial that would

have separated liability and damages

determinations.!?

16 Referring to its own time-study expert, Dr. Adams,

Tyson argued: “[Bloth sides experts are doing something

similar, and the jury will just need to evaluate which one had

the better measure. is the better expert. and is more reliable.”

Def’s. Resistance to Pls.. Omnibus Motion in Limine at 11, ECF

170.

17 See JA115. Tyson maintained that it opposed a

bifurcation of liability and damages because (i) plaintiffs did not

give it more notice of their motion for bifurcation, and (ii) it

believed hability included some individualized issues. But

nothing stopped Tyson from making its own, putatively better-

tailored motion either before or after plaintiffs’ motion.

27

Fifth, Tyson could have called its own employee

witnesses. The representative plaintiffs were

employed at the same Tyson facility as those they

represented, wore substantially similar PPE, and

were subjected to the same uniform policy of non-

compensation. If individualized issues related to

liability were as substantial as Tyson claims, it

would have had little trouble finding employees who

could have testified to this effect, including certain

opt-in class members who had elected to become

parties to the FLSA case. Tyson obliquely seeks to

excuse its failure to do so by citing (at 37-38) to an

observation in a treatise mentioning a smattering of

district court rulings.18 But Tyson points to no order

of court. because there was none, that limited its

ability either to engage in such discovery or to call

non-named plaintiffs to testify.

Having availed itself of numerous procedural

protections, and elected to forgo many others, Tyson

is in no position to argue that it was due any more

process. Analysis of the second Mathews prong

shows that Tyson received ample procedural

protections.

C. The Governmental Interests in Class

Litigation Were Very Strong in This

Case

The third Mathews prong requires a court to

consider “the Government's interest, including the

function involved and the fiscal and administrative

burdens that the additional or substitute procedural

18 And even this handful of cases does not uniformly

support Tyson's position. See McCarthy v. Paine Webber Grp.

Inc. 164 F.R.D. 309, 313 (D. Conn. 1995) (stating that

“[djiscovery of absent class members” is “not forbidden,” even if

it is “rarely permitted’).

28

requirement would entail.” Mathews, 424 U.S. at

335.

One alternative to aggregate litigation in this

action would be no litigation. But that is a result

that this Court should not countenance. Claims like

the ones at issue here are precisely the types of

relatively small claims for which the Court has said

Rule 23(b)(3) was designed. See Amchem, 521 USS.

at 617 (“[S]mall recoveries do not provide the

incentive for any individual to bring a solo action

A class action solves this problem by

aggregating the relatively paltry potential recoveries

into something worth someone’s (usually an

attorney's) labor.”). Absent a viable path to class-

wide redress of systematic wage-and-hour violations,

a company in Tyson’s position could thwart the duly

enacted laws of the United States and of Iowa.

The alternative that Tyson evidently embraces is

a series of individual trials. In these trials, Tyson s

merits brief suggests (at 37) the following questions

would be raised seriatim:

¢ Q for individual plaintiff: Did you spend time

walking to your work station outside gang

time? A: Yes.

e Q: Did you use the standard PPE vou alleged

vou used? A: Yes (after all, that is what

makes it standard).

e Q: Did you use any additional PPE? A: Yes

Gust like virtually all other emplovees at the

Storm Lake plant).

e Q: Did you use any of this PPE in a week in

which you worked more than 40 hours? A:

Yes, because I regularly worked more than 40

hours, and | always used PPE.

29

e Q: Did Tyson compensate you fully for the

donning and doffing of PPE in every week in

which you worked more than 40 hours? A: No:

Tyson had a uniform policy of not

compensating anyone for donning and doffing

standard PPE, and I frequently wore

additional PPE not covered by K-Code time.

¢ Q: How much overtime did Tyson fail to pay

you as a result of this uniform policy? A: I

cant say exactly, because I didn’t keep my

own records.

Tyson apparently envisions repeated

performances of this process, thousands of times. in

front of thousands of duly selected juries, over many

thousands of days of court time. Such tedious

reconstruction and parsing of the minutes each

individual employee spent donning and doffing

essentially the same gear at the same plant during

the same period of time—all to determine the

legality vel non of an unquestionably common plant-

wide pay policy—would hardly befit a system that is

supposed “to secure the just, speedy, and inexpensive

determination” of anything. Fed. R. Civ. P. 1.

And plaintiffs could introduce representative

proof and aggregate statistical evidence in individual

trials anyway. Tyson maintains (at 37) that at most

it could be required to pay only for the reasonable

time it takes to don and doff the gear at issue in this

case. In determining how long is reasonable, it

would surely be relevant how long employees

typically take to do these activities. The accepted

method of answering that question—and the way

Tyson calculated its own K-Code time—is via a time

study done by an industrial engineer such as

plaintiffs expert witness Dr. Mericle. Thus each of

30

the thousands of individual trials Tyson envisions

could easily feature Tyson’s own internal “average”

time studies or, similarly, the following testimony

from an expert such as Dr. Mericle:

e Q: Roughly speaking, how much time does it

take employees at the Storm Lake plant to don

and doff PPE? A: I did an industry-standard

time study and found that the average time

spent donning and doffing is 18 minutes for

Cut and Trim workers and 21.25 minutes for

Kill workers.

To even consider such an alternative is to

demonstrate the vital governmental interest in

allowing aggregate litigation in this case, and in

others like it. Aggregate litigation in this case,

whether through the FLSA opt-in class or the Rule

23 Iowa class, is clearly consonant with the

Constitution when the scope and character of the

claimed constitutional right are taken seriously and

considered in context.

D. There Was Sufficient Non-Statistical

Evidence To Support the Liability

Verdict, Making Statistical Evidence as

to Damages Appropriate Under Mt.

Clemens’ “Just and Reasonable

Inference” Standard

This Court need not address whether statistical

evidence standing alone can establish liability

consistent with due process, because here this

evidence does not stand alone. In its briefing for this

Court. Tyson has simply ignored the volumes of

stipulations and non-statistical testimony and

exhibits that reasonable jurors could have believed

support a liability finding. Accord Mt. Clemens, 328

31

U.S. at 687-94: Garcia, 770 F.3d at 1307 (describing

representative testimony and time-study evidence as

competent evidence that can contribute to “finding of

class-wide liability’).

As to whether plaintiffs worked more than 40

hours, Tyson stipulated before trial that “(hjourly

workers at the Storm Lake plant tend to work a

significant amount of overtime on a weekly basis.”

JA122 (emphasis added). Its managers testified to

simular effect at trial.19

Plaintiffs also presented testimonial evidence of

Tyson's class-wide policy of paying =_ zero

compensation for donning and doffing standard

protective gear worn by all or virtually all class

members—including hard hats, work boots. hair

nets, frocks, aprons, gloves, ear plugs. and uniforms

or outerwear. JA176-78.

And plaintiffs then provided representative

testimony from class members concerning the

standard and additional PPE they wore, and

concerning the typical time spent donning, doffing.

and walking. E.g., JA255-65. Tyson's own

supervisors testified to similar effect, JA453-55. and

the jury had voluminous videotape evidence that

allowed jurors to evaluate the relevant donning,

doffing, and walking issues for themselves.

A reasonable jury easily could determine that

this record established critical issues related to both

overtime status and whether donning and doffing the

PPE at issue in this case was work and thus should

*9 See, e.g., JA326 (testimony of top plant manager Mrvlon

Kizer, whose answer confirmed that “more often than not

employees work most Saturdays and have a 48-hour week in

the production departments”).

32

have been compensated. Accordingly, the post-

verdict posture of this case entitles plaintiffs to the

inference that the jury did find Tyson liable to

plaintiffs on the basis of the record as a whole, and

this Court should avoid upsetting a jury verdict

based on Tyson's challenge to just one piece of the

evidence. See, e.g., Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150-51 (2000) (post-trial

review demands “draw{ing] all reasonable inferences

in favor” of the verdict in light of the trial “record as

a whole,” and court must “disregard all evidence

favorable to [Tyson] that the jury [was] not required

to believe’).

Beyond plaintiffs’ liability showing, this Court

long ago interpreted the relevant provisions of the

FLSA to allow an equitable determination of

damages where, as here, the employer failed to keep

records required by law. Mt. Clemens, 328 US. at

687. The Mt. Clemens Court's reading of the FLSA,

which is due the strong form of stare decisis usually

accorded to statutory interpretations. spares

employees the need to do the impossible and prove

exact damages where no records exist. Instead,

plaintiffs may prove damages as a matter of “just

and reasonable inference” using the best available

evidence. /d. That is just what plaintiffs did here.

combining individualized time-sheet records with an

industry-standard time study to estimate the

amount of uncompensated time.

Finally, contrary to Tyson’s argument, the jury

was hardly obligated to award either zero damages

or damages exactly equal to what plaintiffs

requested. A long line of case law establishes that

damages are “a matter so peculiarly within the

province of the jury that the Court should not alter

33

it.” Atlantic Sounding Co. v. Townsend, 557 US.

404, 409 (2009) (Thomas, J.). See also City of

Monterey v. Del Monte Dunes at Monterey, Ltd.. 526

U.S. 687, 720-22 (1999) (Kennedy, J.) (“the extent of

any resulting damages [is a] question{] for the jury”):

Gasperini v. Center for Humanities, Inc., 518 US.

415, 453 (1996) (Scalia, J., dissenting) (“the proper

measure of damages involves only a question of fact”)

(internal quotation marks omitted).

Applying these Seventh Amendment principles,

there is nothing remotely unusual or problematic

about a jury's rendering a_ split-the-difference

damage award within the range of the evidence

presented at trial. See, e.g., Tuf Racing Prods., Inc.

v. American Suzuki Motor Corp., 223 F.3d 585, 591

(7th Cir. 2000) (Posner, J.).20

CONCLUSION

For these reasons, this Court should dismiss the

writ as improvidently granted or affirm the

judgment below.

20 This Court should also disregard Tyson's attempt to

impeach the testimony from plaintiffs’ statistical expert. Dr.

Fox, by characterizing her testimony “that ‘if the jury concludes

the activities take [a different number of minutes than Mericle

calculated], you have no idea what kind of back wage

calculations would result’ without re-running the program.’

Pet. Br. 13-14 (citing JA425) (alteration in original). The jury

in our system is not tasked with predicting vanations in an

expert witness's computations. The jury is instead asked to

determine, on the basis of admissible evidence. the damages it

believes to be appropriate based on the trial record as a whole.

September 29, 2015

34

Respectfully submitted,

David N. Rosen

David Rosen & Associates,

gu

100 Orange Street

New Haven, CT 06511

(203) 787-3513

(drosen4 davidrosenlaw.com)

Counsel for Amici Curiae

Civil Procedure Professors

APPENDIX

la

List of Amici

Each of the individuals listed below joins this brief as

an amicus curiae. Institutional affiliations are for

identification only; none of amici’s law schools takes

any position on the issues in this case.

Amicus Jonah B. Gelbach is Associate Professor

of Law at the University of Pennsylvania Law

School, an economist (Ph.D., MIT, 1998), and a

former economics professor at the University of

Maryland and the University of Arizona’s Eller

College of Management.

Amicus Stephen B. Burbank is the David Berger

Professor for the Administration of Justice at the

University of Pennsylvania Law School.

Amicus J. Maria Glover is Associate Professor of

Law at the Georgetown University Law Center.

Amicus Arthur R. Miller is University Professor.

New York University.

Amicus Alexander A. Reinert is Professor of Law

at Benjamin N. Cardozo School of Law.

Amicus Adam N. Steinman is the Frank M.

Johnson Faculty Scholar & Professor of Law at the

University of Alabama School of Law and is a co-

author of the Wright & Miller treatise on Federal

Practice & Procedure.

Amicus Tobias Barrington Wolff is Professor of

Law at the University of Pennsylvania Law School.