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

~ Supreme Court, U.S. 7

FILED

AUG 1 4 2015

OFFICE OF THE CLERK

No. 14-1146 SUPREME COURT, U8.

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 CIVIL PROCEDURE SCHOLARS

AS AMICI CURIAE IN SUPPORT OF

NEITHER PARTY

ALLAN ERBSEN

Counsel of Record

University of Minnesota

Law School

229 19th Avenue South

Minneapolis, MN 55455

(612) 626-6632

August 14, 2015 aerbsen@umn.edu

TABLE OF CONTENTS

es GA GA CII I icrceccesircccervinisesenvensonicsnses li

INTEREST OF THE AMICI CURIAE .........00000000...... l

SUMMARY OF ARGUMENT.................ccceccseeseeeeees 1

ET sisitccicinliieusacblanvsectaiensidubenivennsninaaicednasteasibneteii 5

|. Plaintiffs’ Reliance on Averages Obscured

Dissimilarities Between Individual Claims

that Were Material to Liability.......0.0.00000000000.... 5

A. Neither Rule 23 nor the FLSA’s Collective

Action Provision Modify Otherwise

Applicable Liability Standards..................... 8

1. Rule 23 Requires Fidelity to

I Te oo nkiebeliabesi 8

2. The FLSA’s” Collective Action

Provision Provides a Remedy Without

Altering Claims and Defenses .............. 11

B. Plaintiffs Failed to Prove Classwide

REET See Ne Oe, ene 12

1. The FLSA and IWPCL Required Proof

that Tyson Underpaid Each Claimant... 13

The Jury Had No Basis for Finding

that Tyson Underpaid the Entire

Class Because Plaintiffs’ Time Study

Ignored Material Dissimilarities

Among Class Members ......................... 16

C. The Appropriate Remedy Would Be to

Vacate the Aggregate Damages Award

and Remand for Consideration of

Whether Plaintiffs Have a Feasible Plan

ie 23

~

Il. The Record Does Not Warrant a Broad

Inquiry into Context-Sensitive Questions

A. The Suitability of “Statistical

Techniques” Depends on the Factual and

Legal Context, Is Not an Issue in this

Case, and Is Already Subject to

Extensive Guidance................ccccccccesssseesees 27

B. The District Court’s Failure to Develop a

Feasible Management Plan Does Not

Require Reconsidering Precedent

Governing Certification When Some

Class Members Might Be Unable to

I i 33

I astienntainstanstpectimnnnintiobinnansibaiidenumsiin 37

1u

TABLE OF AUTHORITIES

Cases

Abrams v. Interco Inc., 719 F.2d 23 (2d Cir.

RE RS en EDs ee, 25

Abrams v. Johnson, 521 U.S. 74 (1997) ............... 29

Amchem Prods., Inc. vy. Windsor,

git Bg, , SR 9, 34, 35

Amgen Inc. v. Conn. Ret. Plans & Trust

Funds, 133 S. Ct. 1184 (2013)... eee. 7

Anderson v. Mt. Clemens Pottery Co., 328

SO sake TR 8 iin tere Mae dese 15

Bond v. United States, 131 S. Ct. 2355

Sa sceihccietsiastisiasmisilesbatiinielalsiainiteiiitat ite te NT i 34

Brown Shoe Co. v. United States, 370 U:S.

RES ail ca wee 29

Bus. Guides, Inc. vy. Chromatic Comme’ns

Enters., 496 U.S. 533 (1991)..................0....2..... 27

Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir.

RRS LR SEN ESS eh LENCO oe OE Ra eR 34

Castaneda v. Partida, 430 U.S. 482 (1977).......... 28

Chem. Mfrs. Ass'n v. Natural Res. Def.

Council, Inc., 470 U.S. 116 (1985) ....0..ccccccccccee. 29

City of Canton v. Harris, 489 U.S. 378

em kT) 24

Comcast Corp. v. Behrend,

3SS BS. Ce. 14BS CHOUD).........ccecccccccoscoces. 22, 31, 36

Erie R.R. Co. v. Tompkins, 304 U.S. 64

RRR AS SPU tei Sie de ne a 10

Farris v. Cnty. of Riverside, 667 F. Supp. 2d

af es U.N nan a memee 24

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

TE, We Cs 34

iV

Hoffmann-La Roche Inc. v. Sperling, 493

Se Me NII ts csccnshshcctsnasiceriheascndasioncididedieeeresaasabic 11

Hornby v. State, 559 N.W.2d 23 (lowa 1997)....... 14

Int'l Bhd. of Teamsters v. United States,

ee ls Se Oa nites ttasinnenccnininniehesciibaniaadinns 28, 33

Jones v. Rath Packing Co., 430 U.S. 519

PUPPET i iPbanicssecesosccalesecgheadb enn cibiesioasadicaciebinanedhaee diana 29

Lugo v. Farmer's Pride Inc., No. CIV 07-0749,

2010 WL 5060994 (E.D. Pa. Dec. 10, 2010) ......24

Marshall v. Marshall, 547 U.S. 293 (2006).......... 10

Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158

SN ciaascecniiaaibiasainnietamebonct attatched 24

Ortiz v. Fibreboard Corp., 527 U.S. 815

RASTA EEE Se arene Sea NRO RE anGe 9, 26

Pavelic & LeFlore v. Marvel Entm'’t Grp., 493

of | _ FRASER Cessna eue nm 27

Philip Morris USA Inc. v. Scott, 131 S. Ct. 1

UN stan piesisniethicaiieeciabieckcaenbdcuaiceiicacoes id anaes 10

Price Waterhouse v. Hopkins, 490 U.S. 228

SERRE AA tas nS TAOS E Res Seas er 28

Sandifer v. U.S. Steel Corp., 134 S. Ct. 870

| EERE RE eel re etre Rr a nee w EROS 18, 36

Shady Grove Orthopedic Assocs., P.A.

v. Allstate Ins. Co., 559 U.S. 393 (2010)....... 8, 34

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) .0.0....... 9

Steiner v. Mitchell, 350 U.S. 247 (1956)............... 16

Tum v. Barber Foods, Inc., 331 F.3d 1 (1st Cir.

eres ea aed ee 24

U.S. Parole Comm'n v. Geraghty, 445 U.S.

REE ERE hades SEAR ESS a ei ear 25

United States v. Fior D'Italia, Inc., 536 U.S.

RIENCE SHER 28

Utah v. Evans, 536 U.S. 452 (2002) ........... 29

Valley Forge Christian Coll. v. Ams. United

for Separation of Church and State, Inc..,

A a a 33

Wal-Mart Stores, Inc. v. Dukes,

Se iss Si a 9, 19, 36

Waters v. Churchill, 511 U.S. 661 (1994)............. 26

Constitutional Provisions

of ESE Renae ps pee Re 22

if G&G ) a eeerenerer ene 10

Statutes and Rules

EES EE Seen eaN A RTE e 9

ESTE eins ae cee eee en 13

I 5, 11

ER ERI ee ee alee 14

MS EER ne 25

ER 26. RIERA ne eee eS 33

Src RP a i 8

as I as 34

nc is I 25

I 8 27

I ka 25

I Se I FD vise vcccs conscvscencncecesncenontncss 14

ISIE SEE SE CREL OR: CRESS EOE NCO i 14

Id 6, 14

Other Authorities

American Law Institute, Principles of the

Law of Aggregate Litigation (2010)............ 26, 36

Bone, Robert G., Normative Evaluation of

Actuarial Litigation, 18 Conn. Ins. L.J.

EUS RPT OC ER ee ne 31

v1

Erbsen, Allan, From “Predominance” to

“Resolvability’.: A New Approach to

Regulating Class Actions, 58 Vand. L.

| | RE Se One ea 7, 8, 10, 35

Faigman, David L. et al., Modern Scientific

a assitedubbdtadeoeiainns 32

Federal Judicial Center, Reference Manual

on Scientific Evidence (3d. ed. 2011)................ 32

Gervais, Daniel & Latsko, Julie M., Who

Cares About the 85 Percent? Reconsidering

Survey Evidence of Online Confusion in

Trademark Cases, 96 J. Pat. & Trademark

I I a stuieminiens 29

Issacharoff, Samuel, The Vexing Problem of

Reliance in Consumer Class Actions, 74

Re ike Be I Sedicniniscinienonsnticosnascncececces 7

Izenman, Alan Julian, Statistical Issues in

the Application of the Federal Sentencing

Guidelines in Drug, Pornography, and

Fraud Cases, in Statistical Science in the

Courtroom (Joseph L. Gastwirth ed.,

Janus, Eric S. & Prentky, Robert A., Forensic

Use of Actuarial Risk Assessment with Sex

Offenders: Accuracy, Admissibility and

Accountability, 40 Am. Crim. L. Rev. 1443

ERS s He ATES a EIR feo trys SNS te ae ea Oe 30

Kaye, David H. et al., The New Wigmore:

Bpert Evidence (2014) ............0ccccccsscccssesesssceeee 32

Lahav, Alexandra D., The Case for “Trial By

Formula,” 90 Tex. L. Rev. 571 (2012) ...000.0000... 31

Manual for Complex Litigation, Fourth............... 35

McLaughlin, Joseph M., McLaughlin on

Class Actions (11th ed. 2014)... Oe

Meadow, William & Sunstein, Cass R..,

Statistics, Not Experts, 51 Duke L.J. 629

Moller, Mark, Class Action Defendants’

New Lochnerism, 2012 Utah L. Rev. 319

GPE i cescininnssnscaimssnnsennbnisninttebenaiatataalian

Nagareda, Richard A., Class Certification in

the Age of Aggregate Proof, 84 N.Y.U. L.

Be, DE GD Siniininsiiectatteeckcicetenetn ase

Resnik, Judith, Fairness in Numbers, 125

me Oe ft Re oe

Rubenstein, William et al., Newberg on Class

FROIN SI GEE: TFG sciinicscnctcntonenietabieedieiad

Rule 23 Subcommittee Report (Apr. 2015),

available at: http://www.uscourts. gov/

rules-policies/archives/agenda-

books/advisory-committee-rules-civil-

BE Renee ee

Sant’Ambrogio, Michael D. & Zimmerman,

Adam S., The Agency Class Action, 112

Colum. L. Rev. 19002 (2012) .........00sesecssesessses

Sorensen, Jonathan R. & Pilgrim, Rocky L..,

An Actuarial Risk Assessment of Violence

Posed by Capital Murder Defendants, 90

J. Crim. L. & Criminology 1251 (2000).........

Tidmarsh, Jay, MResurrecting Trial by

Statistics, 99 Minn. L. Rev. 1459 (2015).......

Walker, Laurens & Monahan, John,

Sampling Liability, 85 Va. L. Rev. 329

(Bp i wicccecssesormssissenipetsciantnngheinanoeaaal

100

INTEREST OF THE AMICI CURIAE

Amici (listed in the Appendix) are law professors

who teach and write about class actions and complex

litigation.! They have diverse perspectives on the

costs and benefits of aggregating claims, but agree

that judicial review should focus on the unique factual

and legal circumstances of each case. Amici therefore

propose narrow grounds for a decision. The Court can

provide helpful guidance about managing aggregate

proceedings without reconsidering certification

criteria or the use of statistical evidence.

SUMMARY OF ARGUMENT

Both parties overreach. Plaintiffs defend the

classwide judgment despite failing to prove that all

class members were injured. Tyson’ seeks

decertification even though classwide evidence might

be available after the Court clarifies the burden of

proof. Each party frames the case as implicating broad

questions that the record does not raise.

Amici recommend an intermediate position. Tyson

is correct that the judgment was unwarranted, but

plaintiffs should have an opportunity on remand to

present a feasible plan for managing a new trial. The

Court should therefore reverse on narrower grounds

than the Petition suggests. There is no reason to

address the general utility of context-sensitive

' The parties have given blanket written consent to the filing of

amicus briefs. No counsel for a party authored this bref in whole

or in part. No person other than amici and their counsel—

including no party or counsel for a party—-made a monetary

contribution to the briefs preparation or submission.

statistical methods and review of certification criteria

should await the rulemaking process or future cases

with records requiring an interpretation of Rule

23(b)(3).

A class may prevail at trial only by proving

common allegations and presenting a feasible plan for

resolving any remaining individualized disputes.

Plaintiffs offered neither proof nor a plan. Their

attempt at classwide proof relied on models that

glossed over material factual differences between

class members. The models at best established that

some class members had viable claims. This record

was an insufficient foundation for a judgment stating

that the entire class was “entitled to additional

compensation.” The District Court could have

salvaged the case by requiring plaintiffs to develop a

feasible plan for identifying which class members

were injured. Instead, the court authorized a

premature and arbitrary classwide judgment.

The problem is not that plaintiffs tried to

streamline the case with statistical evidence, but

rather that the particular time study they offered

failed to prove classwide liability. Correcting the

misunderstanding of precedent that led to this

mistake does not require fully answering the two

questions presented. Broadly spurning “statistical

techniques” or categorically prohibiting particular

types of class actions would needlessly stifle the case-

specific discretion animating Rule 23. Instead, the

Court can provide helpful guidance by clarifying that

aggregation of dissimilar claims: (1) cannot modify the

substantive law that would apply to individual

claimants if they litigated separately rather than

collectively; and (2) requires a feasible plan for

resolving individualized issues.

Aggregation is not a form of alchemy that

transmutes meritless claims into meritorious claims.

A plaintiff who should lose on the merits if he sues as

an individual should still lose if he raises the same

claim as part of a group. Bundling claims may reveal

merit by facilitating access to justice, but cannot

create merit by altering the substantive law that

would otherwise apply.

Plaintiffs failed to prove classwide liability under

the applicable substantive law because their evidence

overlooked materia] dissimilarities among emplovees

with distinct jobs that required distinct gear. An

individual employee in a non-aggregated suit would

have needed to prove that he spent uncompensated

overtime donning and doffing the gear used in his job.

Evidence of how much time employees performing

different jobs spent donning and doffing different gear

would have been irrelevant if the differences were

material to liability. Yet aggregation placed that

irrelevant evidence at the center of the case. Plaintiffs’

time study expert calculated the average time that

employees across multiple departments spent

donning and doffing. This approach disguised

variations between class members, enabling meritless

claims to blend in among valid claims. Plaintiffs

damages expert then incorporated the tainted time

study into her calculations without accounting for the

study’s errors.

Recognizing that the plaintiffs’ evidence did not

address the liability standard applicable to each

individual claim renders remaining factual disputes

moot. Tyson may have attempted to undercompensate

workers and the disputed analytical methods might

have conformed to norms among industrial engineers.

But if expert witnesses asked the wrong questions,

rigor and accuracy cannot redeem their answers. The

jury at a minimum needed to know how much time

each materially dissimilar subcategory of workers

spent donning and doffing relative to how much

compensation each subgroup received. Plaintiffs

never provided that information, so the jury could not

conclude that Tyson injured the entire class.

Reversal would be a frustrating result given the

jury's verdict and extensive evidence that Tyson

underpaid many employees. Other donning and

doffing class actions have appropriately accounted for

individualized issues; this one did not. Plaintiffs made

poor choices about how to structure the case and the

District Court erroneously endorsed their approach.

An opinion from this Court highlighting the

importance of fidelity to substantive law and careful

management of individual issues would help courts

avoid similar errors in the future.

The errors below do not necessarily foreclose

continued certification. Plaintiffs should have an

opportunity on remand to show that they can develop

a feasible plan for resolving individual claims at a new

trial. Vacating the judgment due to insufficient

evidence and improper case management would

enable the parties to litigate whether certification

remains viable under a revised understanding of

plaintiffs’ burden of proof.

Given that the Court can reverse on narrow

grounds that would clarify aggregation jurisprudence,

there is no reason to consider whether the class should

have been certified or whether certification can be

maintained. The best answer to the two broad

questions that Tyson presents about whether

statistical evidence and diverse classes are

appropriate is: maybe, depending on_ the

circumstances. Cataloging those circumstances in a

single opinion would be neither possible nor prudent.

A decision addressing matters beyond the District

Court’s context-sensitive errors would have

unpredictable consequences in myriad fields where

aggregation is fair and efficient.

ARGUMENT

I. Plaintiffs’ Reliance on Averages Obscured

Dissimilarities Between Individual Claims

that Were Material to Liability

A simple hypothetical variation of the present case

highhghts the District Court’s error. Suppose that an

employee at Tyson’s Storm Lake plant filed a

complaint that was identical to Ms. Bouaphakeo’s

actual complaint, but without the class and collective

action allegations. Further suppose that at trial, the

plaintiff did not present any evidence about how much

time she spent donning and doffing her gear and how

much of this time was uncompensated. Instead, she

proved how much time another employee in a

different department spent donning and doffing

materially different gear and how much that other

employee was underpaid. The hypothetical plaintiff

should lose: she must prove her own entitlement to

damages, not someone else’s entitlement. See 29

U.S.C. § 216(b) (employer is liable only “to the

employee or employees affected” by underpayment);

lowa Code § 914.8 (employer is liable only “to the

employee” that it “failed to pay”). Evidence about

other employees in similar circumstances could be

probative, but a plaintiff cannot rely entirely on

evidence about materially dissimilar employees.

Relabeling the hypothetical claimant as a class

member rather than a named plaintiff does not

obviate proof that she was injured. Aggregation

facilitates proof but does not dispense with the need

for proof, alter the elements of a claim, or eliminate

defenses.

If a class encompasses materially dissimilar

members, the District Court must have a plan for

resolving individualized issues before entering a

classwide judgment. That required parsing of

dissimilar claims never happened in this case.

Instead, the plaintiffs’ effort to blur distinctions

between class members was a troubling example of

how:

[D}issimilarity creates subtle distortions in

the presentation and assessment of claims

and defenses that either inflate or dilute

the perceived value of the overall class

claim.... [T]hese distortions [include}:

“cherry-picking” (the tendency of aggregate

proceedings to generalize from examples

that do not fully represent the diversity of

individual claims), “claim fusion” (the

process by which claims in the aggregate

merge to assume characteristics that no

individual claim possesses), and “ad hoc

lawmaking (the manipulation’ of

substantive rules to assist in resolving or

-~l

preventing practical difficulties that arise

in the course of adjudicating dissimilar

questions of fact and law).

Allan Erbsen, From “Predominance” __ to

“Resolvability”: A New Approach to Regulating Class

Actions, 58 Vand. L. Rev. 995, 1003 (2005) (footnote

omitted).

Lawmakers may avoid the practical obstacles that

dissimilarity poses for aggregation by designing

substantive rules that do not require individualized

proof. For example, a perceived need to “facilitatef]

class certification” may have inspired the fraud on the

market doctrine in securities law. Amgen Inc. v. Conn.

Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1193

(2013). Similar reforms have reshaped other fields.

See, e.g., Samuel Issacharoff, The Vexing Problem of

Reliance in Consumer Class Actions, 74 Tul. L. Rev.

1633 (2000) (discussing rules that facilitate aggregate

proof in implied and express warranty actions). A

desire to bolster aggregate remedies can be an

appropriate impetus for substantive innovation when

drafting or interpreting statutes or when federal

courts develop common law. In contrast, federal

courts have no authority to circumvent inconvenient

substantive rules in order to manage a particular

trial. Neither Congress nor the Iowa legislature

eliminated individualized elements of donning and

doffing claims. Individualized elements therefore

should have shaped plaintiffs’ burden of proof.

A. Neither Rule 23 nor the FLSA’s Collective

Action Provision Modify Otherwise

Applicable Liability Standards

1. Rule 23 #$£=Requires’ Fidelity to

Substantive Law

Class actions are a valuable mechanism for

revealing the merit of claims that otherwise might

have been abandoned or litigated ineffectively.

However, certification cannot create merit by

changing the liability standard or foreclosing

defenses. “There is a difference between allowing the

resources that certification brings to polish a diamond

hidden in the rough and allowing the pressure that

certification brings to create a diamond from coal.”

Erbsen, 58 Vand. L. Rev. at 1043.2

First, Rule 23's text does not modify the otherwise

applicable substantive law. Instead, the Rule posits

that individual plaintiffs have “claims” before

certification that will resemble the “claims” of class

members after certification. Fed. R. Civ. P. 23(a)(3).

Likewise, “defenses” to individual claims before

2 The plurality and dissenting opinions in Shady Grove

Orthopedic Associates, P.A. v. Allstate Insurance Co. made a

similar point. See 559 U.S. 393, 409 (2010) (plurality opinion)

(holding that class actions do not violate the Rules Enabling Act

simply because they encourage plaintiffs to sue and raise the

stakes for defendants); id. at 408 (plurality opinion) (A class

action ... 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 rights and duties

intact and the rules of decision unchanged.”); id. at 447

(Ginsburg, J., dissenting) (distinguishing between the “method

of enforcing a claim” and “the claim itself’).

certification will resemble “defenses” to class

members’ claims after certification. Jd. Nothing in

Rule 23's authorization of certification purports to

transform the content of claims and defenses. See

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561

(2011) (“[A] class cannot be certified on the premise

that [the defendant] will not be entitled to litigate its

statutory defenses to individual claims.”).

Second, if there were any doubt that Rule 23’s text

preserves the otherwise applicable substantive law,

the Rules Enabling Act would preclude a more

“adventurous” interpretation. Ortiz v. Fibreboard

Corp., 527 U.S. 815, 845 (1999). The Act requires that

“rules shall not abridge, enlarge or modify any

substantive right.” 28 U.S.C. § 2072(b). Rule 23

therefore cannot be read to “modify” the elements of a

claim under lowa’s Wage Payment and Collection Law

(IWPCL).

The Court has repeatedly cautioned that applying

Rule 23 requires sensitivity to the Enabling Act. See

Wal-Mart, 131 S. Ct. at 2561; Ortiz, 527 U.S. at 845:

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 629

(1997). The District and Circuit Court decisions in this

case suggest that the message has not been fully

received. The Court might consider clarifying that

compliance with the Enabling Act requires courts to

assess the merit of claims in a class action using the

same substantive standards that would apply if each

claim were litigated individually. The method of proof

may differ in a class action, but what must be proven

remains the same. See Sibbach v. Wilson & Co., 312

U.S. 1, 10, 14 (1941) (holding that the FRCP can

change the “process for enforcing rights’ but cannot

10

alter the content of those rights under the “guise” of

procedural reform).

Third, absent federal preemption, the Erie

doctrine requires faithfully applying Iowa law. See

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Neither

party has raised preemption before this Court.

Accordingly, Rule 23 creates procedural

efficiencies without authorizing substantive

shortcuts. The boundary between procedure and

substance is often opaque, but state law determines

the facts that a claimant must prove to recover

damages under a state statute. See Marshall v.

Marshall, 547 U.S. 293, 313 (2006) (“It is clear, under

Erie” that state law provides the “substantive

elements” of a claim).$

3 Amici's analysis applies only to class actions in federal court.

Rule 23, the Enabling Act, and Erie would be irrelevant in state

court. Aggregating dissimilar claims in state court would raise

additional questions, including whether the Due Process Clause

prohibits application of state class action rules in a manner that

modifies the otherwise applicable substantive law. See U.S.

Const. amend. XIV, § 1. The constitutional question is more

complicated than litigants typically acknowledge because a state

court decision foreclosing defenses to individual! claims could be

characterized in two ways with distinct implications: (1) as

circumventing substantive law, which might violate due process:

or (2) as interpreting substantive law to deny the existence of

defenses, which may be within the court’s authority as an

expositor of state law. See Philip Morris USA Inc. v. Scott, 131

S. Ct. 1, 4 (2010) (Scalia, J., in chambers) (discussing rejection of

a reliance defense in a class action alleging fraud under

Louisiana law). Addressing due process would entail several

complex inquiries that the present record does not require or

support. See, e.g., Erbsen, 58 Vand. L. Rev. at 1040 (noting that

modifying otherwise applicable substantive law may violate due

11

2. The FLSA’s Collective Action Provision

Provides a Remedy Without Altering

Claims and Defenses

Collective actions under 29 U.S.C. § 216(b) can be

an efficient mechanism for challenging broadly

applicable payment practices. See Hoffmann-La

Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989) (“The

broad remedial! goal of the statute should be enforced

to the full extent of its terms.”). But like class actions

under Rule 23, collective actions under Section 216(b)

do not obviate proof that each claimant was injured.

Section 216(b)’s text does not alter the content of

claims in a collective action. The first sentence limits

relief to workers who are “affected” by an illegal

practice, and only in relation to the “amount” of their

loss. 29 U.S.C. § 216(b). The third sentence authorizes

collective remedies, but expressly incorporates the

description of “liability prescribed” in the first

sentence. Id. No language suggests that elements of a

claim expand or contract depending on whether the

claim is raised individually or collectively.

Accordingly, a claim that would lack merit under

Section 216(b) if filed by a single employee suing alone

process if a defendant is “unable to conform its conduct to rules

that vary with the procedural context of a claim, thus rendering

it liable to groups for conduct that is not illegal with respect to

any individual member of the group.”); Mark Moller, Class Action

Defendants’ New Lochnerism, 2012 Utah L. Rev. 319 (2012)

(discussing historical evidence that complicates analysis of due

process arguments in class actions); Judith Resnik, Fairness in

Numbers, 125 Harv. L. Rev. 78 (2011) (noting that analyzing due

process requires considering an array of public and private

interests that litigants often overlook).

12

would still lack merit if filed by an employee who is

part of a collective litigation unit. Collective actions

streamline litigation but do not streamline claims.

Congress may of course amend the FLSA to

facilitate proof of collectively filed allegations. For

example, an amendment could enable employees to

prove that an employer had a policy of miscalculating

overtime, compel an employer with such a policy to

pay a penalty, and allow equitable distribution of the

penalty among employees without requiring proof

that specific employees were underpaid. Such an

amendment would make collective actions more

effective tools for policing misconduct by employers.

The classwide judgment resembles what the

hypothetical amendment to the FLSA would

authorize. However, the judgment is inconsistent with

what Congress currently requires.

B. Plaintiffs Failed to Prove Classwide

Liability

Given that aggregation did not alter the

substantive law applicable to each beneficiary of the

classwide judgment, the Court confronts two

questions. First, what facts would establish a

violation of the FLSA and IWPCL? Second, did the

jury receive evidence capable of proving those facts for

the entire class? Reviewing the statutes and trial

record establishes that plaintiffs failed to prove

13

required facts because they used aggregation as an

excuse to circumvent substantive liability standards.‘

1. The FLSA and IWPCL Required Proof

that Tyson Underpaid Each Claimant

The FLSA and IWPCL condition liability on proof

that each claimant: (1) spent compensable time

donning and doffing that (2) was not compensated.

Plaintiffs can potentially prove these facts using

aggregate data, but only if the data accounts for

variations that could prevent some claimants from

establishing liability. For example, liability would not

exist if an employee's donning and doffing occurred

during paid shifts, if overtime payments covered pre-

or post-shift work, or if the employee worked less than

forty hours per week.

First, the FLSA conditions liability for overtime on

proof that the employer underpaid each claimant by a

specific amount. The statute creates a right to sue

only when an “employee” alleges that “his

employment” exceeded forty hours in a week. 29

U.S.C. § 207(a)(1). If the employee worked overtime,

the statute entitles him to 150% of the rate that “he”

normally earned. Jd. Time spent donning and doffing

is compensable as overtime only if “an employee”

* The District Court instructed the jury that the IWPCL and

FLSA impose “the same” “duplicative” standards, J.A. 479, and

the large IWPCL class mostly subsumed the small FLSA class,

J.A. 117. The parties therefore focused on the FLSA’s

substantive provision but not its aggregation provision, and they

avoided the IWPCL’s substantive language while emphasizing

Rule 23. This case is therefore about how a federal procedural

rule enforces a state law that duplicates a federal law governed

by a different federal procedure.

14

alleges that the time is part of the “principal activity”

in which “he” engages. Id. § 254(a). Damages are

available only to “the employee or employees affected”

by a violation. Jd. § 216(b). Calculation of damages is

based on “the amount” of wrongfully withheld

compensation. Jd.

Second, the IWPCL similarly conditions liability

on proof that an employer withheld a specified

amount from each claimant. Employees are entitled

only to “wages” that are “due.” Iowa Code § 91A.3(1).

A “wage” is due only when “owed” as “compensation.”

Id. § 91A.2(7)(a). An employer that withholds required

compensation is liable only “to the employee” for an

amount based on the specific “wages” that it “failed”

to pay. Id. § 914.8. The statute is thus “remedial,”

focusing on a specific group (“employees” who are

“owed” wages) for a specific purpose (enabling them

“to collect wages”). Hornby v. State, 559 N.W.2d 23, 26

(lowa 1997).

Statutory text linking liability to underpayment of

each complaining worker means that donning and

doffing claims are job-specific rather than plant-

specific. Where the employee works is less important

than what the employee wears. The fact that one

employee was underpaid for donning and doffing one

type of gear does not prove that an adjacent employee

was underpaid for donning and doffing a materially

different type of gear. A claimant may prevail only if

the record contains proof that she was underpaid

based on her own circumstances or those of her

similarly situated coworkers.

This interpretation is consistent with the Court's

opinion in Anderson v. Mt. Clemens Pottery Co., 328

15

U.S. 680 (1946), on which plaintiffs rely. Br. in Opp.

5-9. Anderson might justify an imprecise calculation

of damages when the entire class was injured, but it

cannot justify a judgment for plaintiffs who never

proved liability. In Anderson, the Court observed that

“exactness and precision” in measuring unpaid

overtime are often unattainable. Jd. at 688.

“[Rjeasonable inferences” from probative evidence can

therefore suffice when defendants do not maintain

comprehensive time records. Jd. at 693. However, the

Court conditioned its willingness to tolerate imprecise

overtime calculations on proof that “damage” was

“certain.” Jd. at 688. Each employee must prove that

“he has performed work and has not been paid.” Jd.

Nothing in Anderson suggests that a plaintiff can

prove liability by showing that the defendant

underpaid the “average” employee when the average

obscures material variations.

Under Anderson, the appropriate manner of

proving donning and doffing claims depends on the

degree of variation among clothing requirements for

different work groups. For example, imagine two

hypothetica. meat-processing plants that each employ

one thousand workers who must wear cumbersome

clothing. Plant X requires each worker to wear the

identical uniform, while Plant Y employs three groups

of workers who each wear materially different gear.

Proving aggregate claims will be easier in suits

involving Plant X than in suits involving Plant Y. An

expert could study an appropriate sample of workers

at Plant X and extrapolate donning and doffing times

to the entire plant. But an expert studying Plant Y

would need to analyze three distinct work groups and

present distinct conclusions for each.

16

The problem in this case is that the District Court

treated Tyson’s Storm Lake facility like the

homogenous Plant X even though it more closely

resembled the heterogeneous Plant Y.

2. The Jury Had No Basis for Finding that

Tyson Underpaid the Entire Class

Because Plaintiffs’ Time Study Ignored

Material Dissimilarities Among Class

Members

Plaintiffs’ reliance on broad averages would have

been appropriate only if class members were similarly

situated. If the class was homogenous, then a

statistical average would be an appropriate form of

proof. An average would sacrifice accuracy about

outlhers—such as unusually speedy donners or

lethargic doffers—for the sake of efficiently enforcing

statutory rights. See Steiner v. Mitchell, 350 U.S. 247,

251 (1956) (apparently accepting finding in donning

and doffing case that “each” employee spent “ten

minutes in the morning and twenty minutes in the

afternoon” bathing even though these uniform times

presumably were averages). There is no reason to

believe that the FLSA—which expressly contemplates

collective ltigation—requires all similarly situated

workers to testify when a representative sample could

prove the point.

If the class was materially heterogeneous, then

expert testimony about overall average donning and

doffing times could not establish classwide liability.

For example, suppose that a statute requires

employers to provide a twenty-minute break each day.

A class of one hundred employees sues and the

evidence eventually shows that forty received a ten-

17

minute break while sixty received a twenty-minute

break. Most of the class clearly cannot prove

liability—they received the required twenty-minute

break. Yet the average break for the class as a whole

was sixteen minutes. Expert testimony about the

average would create an illusion that 100% of the

class was underpaid by four minutes each, even

though 60% were fully paid. Donning and doffing

claims are more complicated than the hypothetical

break claim, but the same principle applies: averages

by definition disguise variations. Sometimes

variations do not matter, in which case relying on

averages can be fair and efficient. But if variations are

material to liability, then averaging them away would

ignore the substantive law.

The materiality of a variation is a question unique

to each area of substantive law and each disputed fact.

A decision that the factual variations in this case

precluded averaging under the FLSA or IWPCL would

not preclude using averages to efficiently establish

different facts in different substantive contexts. See

infra Part II(A).

The class in this case was heterogeneous and

plaintiffs’ evidence failed to account for material

factual variations. This fact-bound oversight, rather

than any inherent flaw in statistical reasoning,

requires reversal for a combination of six reasons.

First, the record establishes at least three kinds of

material factual variations: (1) some positions used

distinct gear that required distinct donning and

doffing times; (2) some work groups were subject to

distinct practices for calculating overtime; and (3)

some donning and doffing occurred during paid

18

portions of the work day. Amici will not repeat the

extensive discussion of these variables in Tyson's

brief. Pet. Br. 4-15, 29-34.

Although factual variations seem peripheral in

hight of evidence that Tyson often underpaid workers,

the District Court still should not have entered a

classwide judgment. Evidence of systematic

underpayment was a good reason to aggregate claims.

But evidence that these practices did not injure the

entire class was a reason to manage variations rather

than ignore them. The District Court should have

developed a plan for identifying workers who could

not prove liability. See infra Part II(B). This parsing

could have occurred either during the trial or in a

post-trial claims resolution process. Instead, the court

skipped directly to a classwide judgment stating that

all class members were entitled to compensation. The

error is frustrating given the extensive resources that

this case has consumed, but it is nevertheless

inexcusable under the applicable substantive law.

Small factual variations may be immaterial under

many statutes, but the Court has interpreted the

FLSA as being “all about ... the relatively

insignificant periods of time” required to donn and

doff distinct gear. Sandifer v. U.S. Steel Corp., 134 S.

Ct. 870, 880 (2014) (emphasis in original).

Second, plaintiffs’ time-study expert (Kenneth

Mericle) admitted that he ignored factual variations

between class members. Mericle conceded that he: (1)

did not study a “random” sample (J.A. 378-79) and

that up to 40% of the plant’s workers did not wear

various items that he included in his calculations (J.A.

392); (2) lumped all the plant’s workers into two

19

groups—"“kill” and “fabrication”"—and provided an

average donning and doffing time for each group (J.A.

361-62); (3) collapsed two distinct departments—

“cut” and “retrim”’—into the “fabrication” category

(J.A. 363-64); (4) did not separately measure

numerous “small departments” (id.): (5) made no

effort to identify the “specific job an individual does”

because doing so would “slow” his analysis (J.A. 355—

56); and (6) recognized that plaintiffs’ use of distinct

gear distorted his averages yet made no effort to

control for these variations. See J.A. 388 (“Q. One of

the reasons for the difference in times is different

combinations of clothing, right? A. Yes.”); J.A. 376 (“I

didn’t differentiate between knife users and non-knife

users.”).

When confronted with his omissions, Mericle

opined:

I think, you know, that [the jury] could

repeat the study using a different

methodology if they wanted to ....

Tr. 1051. The jury was in no position to perform

complex quantitative analysis on hundreds of video

studies and thousands of spreadsheet entries.

Plaintiffs themselves suggested when discussing

Mericle’s credentials that only a qualified expert was

capable of such modeling. Tr. 827—40.

Mericle’s indifference to factual variations among

class members rendered him unable to parse

meritless claims from meritorious claims. When an

expert's “testimony does nothing to advance” a party’s

case, the Court “can safely disregard what he has to

say.” Wal-Mart, 131 S. Ct. at 2554.

20

Third, plaintiffs’ damages expert (Liesl Fox)

admitted that her damages calculations relied on

Mericle’s averages. J.A. 418. This was a fatal error

because Fox conceded that lability was not linear. If

lowering the estimated donning and doffing time for a

particular worker reduced his weekly hours below the

amount for which he had been fully compensated,

then he had noclaim. J.A. 424-25. For example, a 10%

reduction in estimated donning and doffing time

would not necessarily translate into a 10% reduction

in damages; instead, damages could plummet to zero

because there was no injury. Proving liability

therefore required measuring the difference between:

(1) the time for which emplovees doing a particular job

were paid; and (2) the time the employees actually

worked. Fox knew how much employees with

particular job codes were paid, but she did not know

how long they actually worked. She therefore could

not prove classwide liability.

Plaintiffs cannot contend that differences between

jobs were immaterial to liability because they had the

burden of proving material similarity yet never

systematically measured variations. Mericle needed

to prove rather than assume that employee A in

department B using equipment C spent a materially

similar amount of time donning and doffing as

employee X in department Y using equipment Z. Class

certification does not create a presumption at trial

that claims are materially similar; otherwise,

certification would invert the substantive law's

burden of proof. See supra Part I(A). Plaintiffs must

in some fashion prove all class members’ claims rather

than forcing the defendant to disprove its liability to

particular employees.

21

Even if the Court were inclined to impose

classwide donning and doffing liability based on rough

overall averages, the liability standard would

presumably distinguish between “acceptably rough”

and “too rough.” Mericle and Fox failed to provide any

data that would allow the Court to apply that

distinction in this case. Their failure is especially

salient in a legal regime where even a few minutes per

week—which in other contexts might be immaterial—

can be the tipping point between no liability and

millions of dollars in damages.

Fourth, the jury rejected plaintiffs’ estimates, yet

had no other basis for finding classwide liability.

Plaintiffs conceded that the jury awarded exactly 50%

less than Fox calculated. Resp. C.A. Br. 44. This

across the board reduction is exactly what Fox

admitted the jury could not do because liability was

not linear:

Q. If the jury were to say no, Dr.

Mericle’s numbers are wrong, it is

only half that, you can’t just take

half of your $6.6 million, can you?

A. No, you cannot.

J.A. 424~-25. After finding that plaintiffs’ models were

fundamentally inaccurate, the jury had no basis for

awarding any classwide remedy given that numerous

class members would lack a valid claim. Juries in

many cases can permissibly award much less than

plaintiffs request. But this case is unusual. The

combination of non-linear liability, reliance on broad

averages to obscure material variations among class

members, and a 50% reduction in damages indicates

that the judgment benefits claimants who were not

22

injured. A model supporting aggregate liability “need

not be exact,” but it cannot be “arbitrary.” Comcast

Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013).

Fifth, plaintiffs inadvertently highlighted the

confusion their models had wrought. During closing

arguments, they conceded that the class contained

“about 3,344 people, not all of whom are due any

money.” Tr. 1721. Yet the jury awarded money to the

entire class. The verdict form states that “the

plaintiffs” are “entitled to additional compensation.”

J.A. 487. A subsequent claims proceeding that

attempts to reject individual class members’ claims

could raise Seventh Amendment concerns. See U.S.

Const. amend. VII (“no fact tried by a jury, shall be

otherwise re-examined”).

The District Court should have prevented this

disarray by planning for a claims resolution process

before submitting aggregate damages to the jury. See

infra Part I1(B). A post-trial claims proceeding is an

appropriate way to allocate damages, but only if the

initial judgment is structured to account for the

additional litigation.

Finally, all remaining factual disputes are moot

even if the record is construed in the light most

favorable to the plaintiffs. Tyson could have sought to

underpay its workers and obscure its misconduct with

inadequate records. Mericle could in turn have used

unassailable observational methods to calculate

average donning and doffing times and Fox could have

correctly analyzed millions of data entries. Even so,

Mericle’s time study ignored the governing

substantive law by lumping meritless claims together

with meritorious claims. Comcast, 133 S. Ct. at 1433—

23

34 n.5 (distinguishing factual accuracy of data from

the legal question of “what those data prove”).

Amici take no position on plaintiffs’ argument that

Tyson waived the foregoing objections to the classwide

judgment. However, amici offer an observation about

how to analyze waiver: adaptation to aggregation

generally should not be treated as acquiescence.

Defendants who unsuccessfully oppose aggregation

cannot endlessly refight that lost battle at the expense

of trying to win on the merits. Tactical decisions made

in an effort to prevail at trial attempt to mitigate the

alleged prejudice of aggregation without necessarily

conceding that aggregation was appropriate. Treating

these tactical decisions as waiving prior objections

would punish the defendant for defending itself. Amici

express no view about how this approach to waiver

would apply to the present record.

C. The Appropriate Remedy Would Be to

Vacate the Aggregate Damages Award and

Remand for Consideration of Whether

Plaintiffs Have a Feasible Plan for a New

Trial

Getting lost in the labyrinth of aggregative

procedure should not permanently preclude access to

justice. Plaintiffs followed a path that both the

District and Circuit courts thought was available. An

appropriate remedy for this error would be to vacate

the jury’s aggregate damages award without

foreclosing further aggregate proceedings.

5 Plaintiffs prevailed on four of the verdict form’s five questions.

See J.A. 486-87. This brief focuses on the fifth question, which

24

The question for the Court to decide is what the

certified class needed to prove in order to prevail. lf

classwide proof was insufficient, the propriety of

continued certification would be an issue on remand.

The parties would address certification with the

benefit of this Court’s assessment of the trial and a

revised adjudication plan from plaintiffs. Prior

donning and doffing cases in which claimants

acknowledged and accounted for material variations

among employees would provide a helpful template.®

Accordingly, the Court should reverse the denial of

Tyson's motion for a new trial, with leave for Tyson to

move for decertification on remand if plaintiffs fail to

present a feasible adjudication plan. See Norfolk S.

Ry. Co. v. Sorrell, 549 U.S. 158, 172 (2007); City of

Canton v. Harris, 489 U.S. 378, 392 (1989).

addressed aggregate liability and damages. Amici express no

view about whether the errors invalidating the judgment on

question five also affect questions one through four.

8 See Tum v. Barber Foods, Inc., 331 F.3d 1, 4-5 (1st Cir. 2003),

affd in part, rev'd in part, 546 U.S. 21 (2005); Farris v. Cnty. of

Riverside, 667 F. Supp. 2d 1151, 1154 (C.D. Cal. 2009). See also

Lugo v. Farmer's Pride Inc., No. CIV 07-0749, 2010 WL 5060994,

at *2 (E.D. Pa. Dec. 10, 2010) (after court decertified donning and

doffing action due to “extensive variation ... [in] whether and by

how much any given Plaintiff was unlawfully undercompensated,”

plaintiffs proposed six relatively homogenous subclasses and court

agreed to try one as a test case).

25

II. The Record Does Not Warrant a Broad

Inquiry into Context-Sensitive Questions

About Statistical Evidence and Certification

Criteria

Judicial decisionmaking benefits from “sharply

presented issues in a concrete factual setting.” U.S.

Parole Comm'n v. Geraghty, 445 U.S. 388, 403 (1980).

The factual setting of this case does not present the

full range of issues raised in the Petition. Specifically,

the record does not require: (1) considering the

general utility of “statistical techniques” such as

averaging and sampling: or (2) deciding when courts

may certify classes that contain a mix of injured and

uninjured claimants.

Courts managing aggregate litigation apply

flexible procedural and evidentiary standards to the

circumstances of each case. A district court must

“determine the course of proceedings” and “prevent ...

complication in presenting evidence,” Fed. R. Civ. P

23(d)(1)(A), consider “adopting special procedures for

managing potentially difficult or protracted actions

that may involve complex issues, multiple parties,

difficult legal questions, or unusual proof problems,”

id. at 16(c)(2)(L), and ensure that expert testimony is

based on “sufficient ... data” that is “reliably applied”

to the “facts of the case,” Fed. R. Evid. 702.

Flexible standards are difficult to apply in part

because, as Judge Friendly observed, “no two cases

will be exactly alike.” Abrams v. Interco Inc., 719 F.2d

23, 28 (2d Cir. 1983) (affirming denial of class

certification on manageability grounds after close

scrutiny of the record). Courts can assess whether a

particular aggregative technique is appropriate only

26

by carefully considering the relevant facts, governing

law, and proposed management plan. See American

Law Institute, Principles of the Law of Aggregate

Litigation §§ 1.03, 2.02, 2.12 (2010).

The importance of context suggests that the Court

should approach the questions presented with caution

and restraint. See Waters v. Churchill, 511 U.S. 661,

686 (1994) (Scalia, J., concurring) (noting that the

Court should avoid a conclusion that is “superfluous

to the decision in the present case” and “unpredictable

in its application and consequences’). A single broad

sentence in an opinion about pork processing could

unsettle the myriad fields where class actions promote

access to justice, including civil mghts, antitrust,

securities, and consumer protection.

A light touch would also be appropriate to

accommodate the Enabling Act’s rulemaking process.

The Advisory Committee on Civil Rules has formed a

subcommittee to consider potential reforms to Rule

23.7 If revisions to certification and case management

criteria are necessary, they should evolve through

notice and comment rulemaking. This preference for

rulemaking underlies the Court’s holding that it is

“bound to follow Rule 23” and is “not free to alter it

except through the process prescribed by Congress in

the Rules Enabling Act.” Ortiz, 527 U.S. at 861. Even

if the Court were “convinced” that a proposed

“standard would more effectively promote the goals

of’ Rule 23, the Court “would not be free to implement

this standard outside of the rulemaking process.” Bus.

7 See Rule 23 Subcommittee Report (Apr. 2015), available at

http://www.uscourts.gov/rules-policies/archives/agenda-

books/advisory-com mittee-rules-civil-procedure-april-2015.

27

Guides, Inc. v. Chromatic Comme'ns Enters., 498 U.S.

533, 549 (1991). The Court strives “to apply the text,

not to improve upon it.” Pavelic & LeFlore v. Marvel

Entm't Grp., 493 U.S. 120, 126 (1989).

A. The Suitability of “Statistical Techniques”

Depends on the Factual and Legal

Context, Is Not an Issue in this Case, and

Is Already Subject to Extensive Guidance

This Court presumably would not entertain a

proposal to condemn the use of “mathematical

techniques” in litigation. Even though many lawyers

seem uncomfortable with math, litigation is often an

exercise in quantification. Courts routinely estimate

the costs and benefits of conduct, the amount of

damages, and the probability that various events

occurred.

The “statistical techniques” that the petition asks

the Court to address are merely a species of math.

Statistical evidence is neither categorically

appropriate nor categorically suspect. Instead,

statistics are context-sensitive tools that help courts

decide if a particular fact is true or a particular

argument is persuasive. See Fed. R. Evid. 102

(stressing importance of “ascertaining the truth and

securing a just determination’).

Like any tool, statistics can be misused. Statistical

analysis can be poorly implemented in a context

where it would otherwise be helpful, carefully

implemented in a context where it does not belong, or

rigorously applied in an appropriate context but given

undue weight. The present case involves the use of

averages where they did not belong because the time

28

study obscured variations among class members that

were material to liability. Reversal on that narrow

ground would obviate consideration of how courts

adjudicating different cases under different

substantive laws should evaluate different methods

used by different experts for different purposes.

Caution in addressing the use of statistics in

aggregate litigation is especially appropriate for three

reasons.

First, any discussion of statistics in this case will

have unpredictable ripple effects because statistical

analysis is ubiquitous in legal reasoning. Courts

routinely rely on sampling, averaging, imputation,

and extrapolation when applying myriad legal rules

in myriad factual contexts. For example, this Court

has relied on statistics when analyzing such issues as:

discrimination based on race,® sex,’ and national

origin,!° assessment of taxes under the Internal

Revenue Code,!! market dynamics under antitrust

8 See Intl Bhd. of Teamsters v. United States, 431 U.S. 324, 339

(1977) (‘[O}ur cases make it unmistakably clear that ‘(s)tatistical

analyses have served and will continue to serve an important

role’ in cases in which the existence of discrimination is a

disputed issue.” (quoting Mayor of Phila. v. Educ. Equal. League,

415 U.S. 605, 620 (1974))).

8 See Price Waterhouse v. Hopkins, 490 U.S. 228, 270-75 (1989)

(O'Connor, J., concurring in the judgment) (discussing precedent

about the use of statistical evidence).

10 See Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977)

(analyzing statistical techniques used to prove intentional

exclusion of Mexican-Americans from grand juries).

1! See United States v. Fior DTtalia, Inc., 536 U.S. 238, 243 (2002)

(noting various statistical methods by which the IRS “estimates

an individual's tax liability”) (emphasis in original).

law,!? congressional apportionment! and

redistricting,’ state enforcement of federal

regulations,'® and regulatory variances under the

Clean Water Act.!§ Likewise, scholars have discussed

the use of quantitative methods for analyzing a

diverse range of additional issues, including the

standard of care in medical malpractice suits,’’

consumer confusion in trademark infringement

actions,'® application of the federal sentencing

\2 See Brown Shoe Co. v. United States, 370 U.S. 294, 341 (1962)

(‘There is no reason to protract already complex antitrust

litigation by detailed analyses of peripheral economic facts, if the

basic issues of the case may be determined through study of a

fair sample.”).

'3 See Utah v. Evans, 536 U.S. 452, 464-79 (2002) (discussing

distinction between statistical “sampling” and statistical

“imputation” or “inference”).

'4 See Abrams v. Johnson, 521 U.S. 74, 98-101 (1997) (reviewing

statistical evidence).

15 See Jones v. Rath Packing Co., 430 U.S. 519, 531 n.18 (1977)

(rejecting contention “that States may not uee valid statistical

sampling techniques, including reliance on lot average weights,

to police compliance with federal and valid state net-weight

labeling laws’).

16 See Chem. Mfrs. Ass'n v. Natural Res. Def. Council, Inc., 470

U.S. 116, 132 n.24 (1985) (rejecting challenge to the EPA's use of

“statistical methodologies” to grant variances from effluent

limitations).

17 See William Meadow & Cass R. Sunstein, Statistics, Not

Experts, 51 Duke L.J. 629, 631 (2001) (“The legal system should

rely, whenever it can and far more than it now does, on statistica]

data about doctors’ performance rather than on the opinions of

experts about doctors’ performance.”).

8 See Daniel Gervais & Julie M. Latako, Who Cares About the 85

Percent? Reconsidering Survey Evidence of Online Confusion in

Trademark Cases, 96 J. Pat. & Trademark Off. Soc’'y 265, 293-—

95 (2014) (proposing nuanced analysis of survey data).

30

guidelines,'9 adjudication by administrative

agencies, and actuarial predictions of future

dangerousness that influence detention of sex

offenders?! and imposition of the death penalty.22

The preceding list of fields infused with statistics

blurs numerous distinctions between the

methodology, purpose, and complexity of statistical

evidence. That variation illustrates why restraint is

necessary: critical distinctions could easily be

overlooked if the Court assesses statistical tools such

as averaging and sampling in the abstract rather than

in a narrow and well-defined context. The Court might

attempt to confine the precedential force of any

opinion addressing statistical evidence to the specific

'8 See Alan Julian Izenman, Statistical Issues in the Application

of the Federal Sentencing Guidelines in Drug, Pornography, and

Fraud Cases, in Statistical Science in the Courtroom (Joseph L.

Gastwirth ed., 2000) (discussing use of sampling when sentences

depend on calculating the amount of harm caused or the amount

of items possessed).

20 See Michael D. Sant'Ambrogio & Adam S. Zimmerman, The

Agency Class Action, 112 Colum. L. Rev. 1992, 2060-63 (2012)

(considering how administrative law judges should review

statistical evidence).

21 See Eric S. Janus & Robert A. Prentky, Forensic Use of

Actuarial Risk Assessment with Sex Offenders: Accuracy,

Admissibility and Accountability, 40 Am. Crim. L. Rev. 1443,

1444 (2003) (contending that “actuarial methods have proven

equal or superior to clinical judgments’).

22 See Jonathan R. Sorensen & Rocky L. Pilgrim, An Actuarial

Risk Assessment of Violence Posed by Capital Murder

Defendants, 90 J. Crim. L. & Criminology 1251, 1252 (2000)

(“Studies have found the fate of capital defendants in Texas and

Oregon is determined almost entirely by juries’ deliberations on,

and emotional responses to, the punishment inquiry concerning

defendants’ future dangerousness.”).

31

facts of this case. But some seepage across doctrinal

boundaries is inevitanle because lawyers and judges

will read the tea leaves for signs of the Court’s

approach to statistical methods.

Second, even if limited to the context of proving

classwide liability in aggregate litigation, a discussion

of statistical evidence would require more nuance

then the present record could support. Scholars have

repeatedly demonstrated that statistical evidence can

either vindicate or undermine substantive rights in

aggregate proceedings. Context is critical. Courts

must consider the purpose for which statistics are

used (such as proving liability, damages, or both), the

specific methods employed, how and to what extent

class members’ factual circumstances materially vary,

the elements of claims and defenses, whether

cognitive biases might distort the presentation or

perception of statistics, the interaction between

statistical evidence and more traditional forms of

evidence in painting a coherent picture for the trier of

fact, and the costs and benefits of the best alternative

to statistical evidence.2> The Court has similarly

observed that statistical models supporting aggregate

litigation must account for the factual and legal

context. See Comcast, 133 S. Ct. at 1433 (limiting its

23 See, e.g., Robert G. Bone, Normative Evaluation of Actuarial

Litigation, 18 Conn. Ins. L.J. 227 (2011-2012); Alexandra D.

Lahav, The Case for “Trial By Formula,” 90 Tex. L. Rev. 571

(2012); Richard A. Nagareda, Class Certification in the Age of

Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009); Jay Tidmarsh,

Resurrecting Trial by Statistics, 99 Minn. L. Rev. 1459 (2015):

Laurens Walker & John Monahan, Sampling Liability, 85 Va. L.

Rev. 329 (1999); sources cited infra notes 24—25.

32

analysis to a particular econometric model in an

antitrust class action).

The failure of two witnesses to analyze one

slaughterhouse does not signal a deeper problem

requiring comment from the Court. Plaintiffs’ time

study was flawed because it ignored the governing

substantive law. See supra Part I(B)(2). This error

should not indict the use of averaging and sampling in

countless cases by experts in such diverse disciplines

as economics, political science, environmental studies,

psychiatry, epidemiology, criminology, and sociology.

Third, to the extent the Court is concerned that

lower courts need guidance about the proper use of

statistics, ample guidance already exists. For

example, the Federal Judicial Center’s Reference

Manual on Scientific Evidence devotes 297 pages to

statistical analysis,*4 and treatises cover statistical

evidence at length.25 Calling attention to these

sources would be helpful, but an extended discussion

of “statistical techniques” divorced from the time

study in this case could do more harm than good.

24 Reference Manual on Scientific Evidence 211-423, 549-632 (3d

ed. 2011) (chapters on “statistics,” “multiple regression,” “survey

research,” and “epidemiology’).

25 See 1 David L. Faigman et al., Modern Scientific Evidence §§

6: 1-6:55 (2014) (chapter on “statistical proof’); David H. Kaye et

al., The New Wigmore: Expert Evidence §§ 12.1-12.10 (2014)

(chapter on “statistical studies”); 4 William Rubenstein et al.,

Newberg on Class Actions §§ 11:1—11:21 (5th ed. 2012) (sections

on proof at trial); 2 Joseph M. McLaughlin, McLaughlin on Class

Actions §§ 8:6—8:13 (11th ed. 2014) (sections on “Aggregate proof”

and “statistical evidence”).

33

The Court has correctly observed that statistics

“come in infinite variety” and that their “usefulness

depends on all of the surrounding facts and

circumstances.” Int? Bhd. of Teamsters, 431 U.S. at

340. Questions about the utility of statistical evidence

should “be resolved, not in the rarified atmosphere of

a debating society, but in a concrete factual context

conducive to a_ realistic appreciation of the

consequences of judicial action.” Valley Forge

Christian Coll. v. Ams. United for Separation of

Church and State, Inc., 454 U.S. 464, 472 (1982).

B. The District Court’s Failure to Develop a

Feasible Management Plan Does Not

Require Reconsidering Precedent

Governing Certification When Some Class

Members Might Be Unable to Prove

Liability

The Court should not fully address the second

question presented, which asks whether a class or

collective action “may be certified or maintained” if

some claimants were “not injured.” Pet. Br. i.

Answering this context-sensitive question would

require reconsidering settled precedent on an

inadequate record. Instead, whether the case can

continue as a class action or collective action should

be an issue on remand. See supra Part I(C).

First, this issue does not involve “standing” (Pet.

Br. 46) for the same reason that standing is not

retroactively a concern in ordinary litigation when

plaintiffs lose on the merits. For example, suppose

that four employees joined donning and doffing claims

under Fed. R. Civ. P. 20({a){1), there were no class

allegations, the plaintiffs survived a motion to dismiss

34

for failure to state a claim, and at trial three plaintiffs

prevailed and one lost. The Court would not treat the

losing plaintiff as lacking “standing”; he simply failed

to prove a claim. See Bond v. United States, 131 S. Ct.

2355, 2362 (2011) (observing that “conflation” of

merits and justiciability issues “can cause confusion”).

Likewise, “standing” is not the relevant inquiry when

class actions identify some claims as meritorious and

some as meritless because Rule 23 is, like Rule 20, a

“species” of “traditional joinder.” Shady Grove, 559

U.S. at 408 (plurality opinion).

Second, Rule 23’s text expressly contemplates that

“questions affecting only individual” class members

may cause some to lose while others prevail. Fed. R.

Civ. P. 23(b)(3). The prospect that some class

members’ claims will lack merit requires careful case

management but does not categorically preclude

certification. See Halliburton Co. v. Erica P. John

Fund, Inc., 134 S. Ct. 2398, 2412 (2014) (“That the

defendant might attempt to pick off the occasional

class member here or there through individualized

rebuttal does not cause individual questions to

predominate.”); Amchem Prods., Inc. v. Windsor, 521

U.S. 591, 625 (1997) (requiring “caution” rather than

a categorical bar when “disparities among class

members [are] great”). If there is confusion about this

point, evolving doctrine addressing “ascertainability”

will present more direct opportunities to address the

issue.26

26 Byrd v. Aaron’s Inc., 784 F.3d 154, 161-71 (3d Cir. 2015)

(collecting cases). Amici express no view about whether

“ascertainability” is a sensible concept or how it should apply.

35

Third, the critical problem below was that the

District Court improperly managed the trial by failing

to account for factual variations among class

members. The judge who certified the class found that

“dissimilarities” existed but believed they would be

“manageable.” Pet. App. 90a. That judge never had an

opportunity to manage variations because the case

was transferred to another district. Pet. App. 5a. The

transferee court did not adapt as the case evolved.

District Courts managing aggregate litigation

must make decisions “informed by the proceedings as

they unfold.” Amchem, 521 U.S. at 620. Here, the

court overlooked mounting evidence that a classwide

judgment would be premature. After Mericle and Fox

testified, the District Court should have realized that

plaintiffs: (1) had not proved classwide liability; and

(2) had no plan for a post-trial claims resolution

process. The court should have anticipated these

problems before the trial, but in any event was

required to react when the problems arose. By failing

to adjust as the class action unraveled, the District

Court overlooked its “unique responsibilit[y]” to

provide “active judicial management” in aggregate

proceedings. Manual for Complex Litigation, Fourth,

§ 21.

The District Court’s error presents an opportunity

for this Court to provide guidance about case

management. At early stages of litigation some courts

“overestimate their ability to cope with the burdens

that class actions impose.” Erbsen, 58 Vand. L. Rev.

at 1046. Certification then “creates momentum that

courts may be unwilling to halt.” Jd. at 1047.

Requiring a “feasible” plan can help courts make a

36

“realistic assessment of how a case can be litigated”

before they go too far down an unproductive path. Id.

at 1046-48. Courts should therefore develop an

“adjudication plan” addressing both “common” and

“remaining issues. AL] Principles § 2.12(a)(3).

Planning can avoid ill-considered “shortcuts” that

attempt “to squeeze heterogeneous claims into a

homogenous mould” in order to manage “dissimilarity”

among class members. Erbsen, 58 Vand. L. Rev. at

1009.

Careful planning in this case might have led to a

more refined presentation of evidence. Alternatively,

if planning revealed that aggregation was not feasible,

the court and parties would have been spared the

expense of trial.

Finally, this case is an anachronism. It was

certified before Wal-Mart redefined commonality, and

it was tried before Comcast reconsidered statistical

evidence and Sandifer reinterpreted the FLSA.

Settled precedent requires vacating a classwide

judgment based on a poorly constructed time study

that glossed over material variations aidong

individual claims. A new opinion might clarify the

importance of fidelity to substantive law and the need

for feasible management plans. Any additional issues

should await future cases with appropriate records.

37

CONCLUSION

Jurisprudence governing aggregation should be

sensitive to the diverse contexts in which it operates.

Vacating the classwide judgment on parrow grounds

would recognize the fact-bound nature of the errors

below, provide guidance that could avoid similar

errors in the future, and preserve flexibility to employ

aggregative procedures in cases where they are fair

and efficient.

Respectfully submitted,

ALLAN ERBSEN

Counsel of Record

University of Minnesota

Law School

229 19th Avenue South

Minneapolis, MN 55455

(612) 626-6632

aerbsen@umn.edu

August 14, 2015

APPENDIX

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APPENDIX: LIST OF AMICI CURIAE

Institutional affiliations are provided solely for

identification. Amici file this brief in their individual

capacities as scholars.

Kevin M. Clermont

Ziff Professor of Law

Cornell University

Allan Erbsen

Associate Professor and Solly Robins Distinguished

Research Fellow

University of Minnesota Law School

Richard D. Freer

Robert Howell Hall Professor of Law

Emory University School of Law

Mark Moller

Associate Professor of Law

DePaul University College of Law

Howard M. Wasserman

Professor of Law

FIU College of Law