# 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%3A27

## Record

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

## Text

~ 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

=

la

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0547%3A27. Public record. Not legal advice.