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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0547%3A26

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0547%3A26. Public record. Not legal advice.