TYSON FOODS, INC. V. BOUAPHAKEO: THE ROLE OF STATISTICAL
ANALYSIS IN CLASS CERTIFICATION
I. INTRODUCTION
Under Rule 23(b)(3), a class may be certified if “the questions of law or fact
common to the class predominates over any questions affecting only individual
members,” and “a class action is superior to other methods for fairly and efficiently
adjudicating the controversy.”1 The predominance inquiry begins “with the elements of
the underlying cause of action.”2 And it “generally involves considerations that are
enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.”3
Courts often determine the predominance question by considering whether the plaintiffs
can establish their claims through “classwide proof.”4
In in Anderson v. Mt. Clemens Pottery Co., the Court held that when employers
violate their statutory recordkeeping duties, employees seeking class certification only
need to “produce[] sufficient evidence to show the amount and extent of that work as a
matter of just and reasonable inference.”5 The burden then shifts to the employer to prove
the “precise amount of work performed” or “to negative the reasonableness of the
inference to be drawn from the employee’s evidence.”6 This ruling relieves the class
plaintiffs “of an unnecessarily unrealistic evidentiary burden”7 and effectively eases the
1
Fed. R. Civ. P. 23(b)(3).
Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184 (2011).
3
Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (citation omitted).
4
Resp. Br. 28 (quoting Amgen). See also Comcast, 133 S.Ct. at 1433 (without a
classwide proof of damages, “[q]uestions of individual damage calculations will
inevitably overwhelm questions common to the class”).
5 328 U.S. at 687.
6 Id. at 687-88.
7 Halliburton Co. v. Erica P. John Fund, Inc., 134 S.Ct. 2398, 2407 (2014) (internal
2
process of certification for plaintiffs, especially in cases related to undercompensated
labor.
However, in recent years, certification requirements have become increasingly
stringent. In Wal-Mart v. Dukes, for example, the Court reversed class certification and
rejected the female employees’ use of a sample set of class members to determine
classwide liability and damages, calling it “Trial by Formula.”8 In the 2015 term, the
Court is hearing a number of cases which may result in further tightening of the standing
requirement for class representatives.9
In Tyson Foods, Inc. v. Bouaphakeo, the Court will address two questions that
may greatly impact the stringency of certification requirements for both Rule 23(b)(3)
class actions and collective actions under the Fair Labor Standards Act (“FLSA”). Part I
of this commentary describes the factual background of the case. Part II explains the legal
background. Part III presents the Eighth Circuit’s holding in Bouaphakeo v. Tyson Foods,
Inc. Part IV delineates the arguments presented by both sides. And Part V examines the
validity of the plaintiffs’ use of statistical averaging to estimate classwide liability and
damages and argues that the Supreme Court should allow the plaintiffs to use such
representative evidence to justify class certification.
II. FACTS
Tyson operates a pork-processing facility in Storm Lack, Iowa.10 It requires all
employees to wear at least some items of personal protective equipment (“PPE”), which
quotations omitted).
8 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561, 180 L. Ed. 2d 374 (2011).
9 See, e.g., Campbell-Ewald Company v. Gomez, Spokeo, Inc. v. Robins.
10
Joint Appendix at 28, Tyson Foods, Inc. v. Bouaphakeo, 2015 WL 4737041 (U.S.), 28
(U.S. 2015) [hereinafter JA].
is stored in lockers at the facility.11 The production employees are required to clean and
put on the required PPE before they start working on the production line, and they
generally do that in locker rooms before walking to their stations on the line.12 Tyson
pays its production employees on a “gang time” system, which only records the time
workers spent at the production line when the processing lines are moving.13
Besides “gang time,” Tyson also pays some of its employees for a few additional
minutes per day—known as “K-code” time—to compensate them for donning, doffing,
and washing specialized protective equipment.14 Prior to 2007, Tyson paid four minutes
of K-code time to each employee in a department where knives were used.15 From
February 2007 to June 2010, Tyson limited K-code payment to only knife-wielding
employees but raised the K-code time to 4-8 minutes per day to account for both walking
between the locker room and the production line, and donning and doffing.16 Tyson never
recorded the actual amount of time workers spent on donning, doffing, rinsing, or
walking.17
A group of current and former production employees at the Storm Lake facility
filed suit against Tyson in 2007, alleging violations of the Fair Labor Standards Act
(“FLSA”) and the Iowa Wage Payment Collection Law (“IWPCL”).18 The district court
conditionally certified a collective action and certified a class action based on Section
11
Id. at 36.
Id. at 37.
13
Resp. Br. 7.
14
JA 186.
15
JA 121-22.
16
Id.
17
JA 175.
18
JA 28, 39-40.
12
216(b) and Rule 23.19 The court found that “there are far more factual similarities than
dissimilarities” among the collective- and class-action members and that questions
common to the class predominated over individualized questions.20 A total of 444
employees joined the collective action; the parallel class had 3344 members.21
In 2011, a jury trial was held, where the plaintiffs presented employee testimony,
video recordings of donning and doffing at the facility, and an expert-run study based on
744 videotaped observations.22 In the study, the expert estimated that donning, doffing,
and related activities required 21.25 minutes per day for employees in the slaughter
department and 18 minutes per day for employees in the processing department.23
Another expert calculated the amount of uncompensated overtime each individual
plaintiff worked from the estimates and tallied a total of approximately $6.7 million in
unpaid overtime for the entire class.24 The jury found that the time the employees spent
donning and doffing their PPE was compensable work that was “integral and
indispensible” to the employees’ gang-time work and not “de minimis,” but that donning
and doffing during meal breaks was not compensable.25 It awarded roughly $2.9 million
in damages to the plaintiffs.26
The court of appeals affirmed and later denied rehearing and rehearing en banc.27
III. LEGAL BACKGROUND
19
JA 117.
Pet. App. 88a-89a, 109a.
21
JA 117.
22
Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 796 (8th Cir. 2014) cert. granted, 135
S. Ct. 2806 (2015)
23
JA 123-124.
24
JA 139, 465-466.
25
JA 486-487
26
JA 488.
27
Pet App. 114a.
20
Rule 23(b) of Federal Rule of Civil Procedure provides that a damages class
action which satisfies Rule 23(a)’s requirements of numerosity, commonality, typicality,
and adequacy of representation, may be certified if “the courts finds that the questions of
law or fact common to class members predominate over any questions affecting only
individual members, and that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.”28
The Fair Labor Standards Act of 1938 (FLSA) establishes both a minimum wage
requirement and a requirement for overtime compensation at a rate of one and one-half
times an employee’s regular wage for work exceeding 40 hours in a workweek.29 The
FLSA allows “any one or more employees” to bring a “collective action” to recover
unpaid wages “for and in behalf of himself or themselves and other employees similarly
situated.”30 The FLSA collective actions are “fundamentally different” from class actions
under Rule 23(b).31 First, the FLSA “similarly situated” requirement differs from Rule
23(b)(3)’s predominance requirement. The majority of the courts believes that the FLSA
requirement is less stringent than Rule 23.32 Plaintiffs may be similarly situated when
“they suffer from a single, FLSA-violating policy, and when proof of that policy or of
conduct in conformity with that policy proves a violation as to all the plaintiffs.”33 A
court may consider “(1) disparate factual and employment settings of the individual
28
Fed.R.Civ.P. 23(b)
29 U.S.C. § 216(b)
30
Id.
31
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1529 (2013).
32
7B Charles Alan Wright et al., Federal Practice and Procedure § 1807 (3d ed. Supp.
2015); see, e.g., O’Brien, 575 F.3d at 585-586; Grayson v. K Mart Corp., 79 F.3d 1086,
1096 & n.12 (11th Cir.), cert. denied, 519 U.S. 982, and 519 U.S. 987 (1996); but see
Espenscheid, 705 F.3d at 772.
33
O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir.2009).
29
plaintiffs; (2) the various defenses available to defendant which appear to be individual to
each plaintiff; [and] (3) fairness and procedural considerations.”34
Second, unlike Rule 23(b)(3), which requires class members to opt out if they do
not wish to be included in the class, Section 216(b) of the FLSA requires employees to
opt into the lawsuit by filing written consent to become “party plaintiff[s].”35 The purpose
of Section 216(b) is to allow employees with common issues of law and fact arising from
the same violation to sue collectively, so as to reduce individual costs and boost
efficiency in the judicial system.36
The Iowa Wage Payment Collection Law (“IWPCL”) is a complementary wageand-hour law paralleling the FLSA.37 It requires employers to pay for all hours worked
and to compensate for overtime work.38 Like the FLSA, IWPCL requires
recordkeeping39, and creates a private cause of action.40
Congress passed the Portal-to-Portal Act of 1947 (Portal Act) to exclude some
activities that might otherwise constitute work from the FLSA, such as travelling to and
from the location of the employee’s principal activity, and activities that are “preliminary
to or postliminary to said principal activity....”41 The exceptions only apply before the
commencement of an employee’s principal activities on any particular workday, or after
34
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001).
29 U.S.C. §216(b).
36
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S. Ct. 482, 486, 107 L.
Ed. 2d 480 (1989).
37
Iowa Code § 91A.1 et seq.
38
Id.
39
Iowa Admin. Code 875-216.2(1)(g).
40
Iowa Code § 91A.8.
41
29 U.S.C. 254(a); IBP, Inc. v. Alvarez, 546 U.S. at 26–28.
35
its completion.42 And “principal activities” includes “all activities which are an ‘integral
and indispensable part of the principal activities,’” and such activities are compensable
even when they are performed “before or after the regular work shift, on or off the
production line….”43
Congress also required employers to keep “records of the persons employed…and
of the wages, hours, and other conditions and practices of employment…” according to
regulations issued by the Secretary, including “[h]ours worked each workday,” “total
hours worked each workweek,” and regular and overtime pay.44 In Mt. Clemens, the
Supreme Court addressed the problem which arises when “the employer’s records are
inaccurate or inadequate.”45 The Court rejected the court of appeals’ standard of proof,
which required “each of the plaintiffs to prove by a preponderance of the evidence that he
did not receive the wages that he was entitled to receive under the [FLSA], and to show
by evidence, not resting upon conjecture, the extent of overtime worked.”46 Instead, the
Court held that the employers’ “failure to keep proper records in conformity with his
statutory duty” calls for a burden-shifting framework that prevents the employer from
benefiting from his own mistake.47 Under this framework, an employee only needs to
show that “he has in fact performed work for which he was improperly compensated” and
he has “sufficient evidence to show the amount and extent of that work as a matter of just
and reasonable inference,” before the burden shifts to the employer to provide “evidence
42
29 U.S.C. 254(a).
Alvarez, 546 U.S. at 29-30 (citation omitted); Steiner v. Mitchell, 350 U.S. 247, 256
(1956).
44
29 U.S.C. 211(c); 29 C.F.R. 516.2(a)(6)-(9).
45
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).
46
Id. at 465.
47
Id. at 687.
43
of the precise amount of work performed or with evidence to negative the reasonableness
of the inference to be drawn from the employee’s evidence.”48 The Court suggested that
“even where the lack of accurate records grows out of a bona fide mistake” about the
compensability of the unrecorded work, “the employer, having received the benefits of
such work, cannot object to the payment for the work on the most accurate basis possible
under the circumstances.”49
In Wal-Mart, the Court reversed class certification on the ground that the Ninth
Circuit improperly permitted the class to prove sex discrimination and the backpay owed
by first determining the validity of the claims for a sample of the class, then applying that
percentage to the entire remaining class, and finally multiplying “the number of
(presumptively) valid claims…by the average backpay award in the sample set to arrive
at the entire class recovery….”50 Such a “Trial by Formula,” the Court unanimously held,
would violate the Rules Enabling Act by depriving Wal-Mart of the right to litigate its
statutory defense to individual claims.51
IV. HOLDING
The court of appeals affirmed. Like the district court, the court of appeals found
the differences in the equipment worn by employees to be inconsequential.52 It observed
that because Tyson violated its statutory recordkeeping obligations, Mt. Clemens allows
the plaintiffs to use representative proof to determine the amount of individual
48
Id. at 687-88.
Id.
50
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011) (Wal-Mart).
51
Id.
52
Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 797 (8th Cir. 2014) cert. granted, 135
S. Ct. 2806 (2015)
49
unrecorded overtime.53 Moreover, the court factually distinguished Wal-Mart and
observed that because the plaintiffs “prove[d] liability for the class as a whole, using
employee time records to establish individual damages,” this was not a “Trial by
Formula” as suggested by Tyson.54 The court also reasoned that a class may be certified
even if some class members’ claims fail on the merits and therefore cannot recover in the
end.55 It pointed out that the jury instructions ensured that the presence of such class
members did not affect the size of the verdict.56
V. ARGUMENTS
Tyson argues that the lower courts erred in finding that the employees were
“similarly situated” and that questions of law or fact common to the class predominated
over individual questions.57 Because the class members wear different combinations of
personal protective equipment that take varying amounts of time to don, doff, and rinse,
Tyson argues that it is impossible for plaintiffs to show, with common evidence, that they
have collectively worked more than 40 hours without receiving overtime compensation.58
Not only do individual questions predominate, according to Tyson, the lower courts also
erred in allowing statistical sampling to demonstrate plaintiffs’ classwide liability and
damages.59 Tyson vigorously attacks plaintiffs’ use of Mericle’s average donning/doffing
times, emphasizing that “[n]o court would allow an individual employee to prove that he
53
Id.
Id. at 797-98.
55
Id.
56
Id. at 798.
57
Pet. Br. at 18. Tyson Foods, Inc. v. Bouaphakeo, 2015 WL 4720265 (U.S.), 13
(U.S.,2015) [hereinafter “Pet. Br.”]
58
Pet. Br. 19.
59
Pet. Br. 19.
54
worked unpaid overtime by submitting evidence of the amount of time worked by other
employees who did different activities that took a different amount of time to perform.”60
Tyson interprets the Supreme Court’s decision in Anderson v. Mt. Clemens
Pottery Co. to hold “only that an employee carried his burden of proving entitlement to
damages under the FLSA ‘if he proves that he has in fact performed work for which he
was improperly compensated and if he produces sufficient evidence to show the amount
and extent of that work as a matter of just and reasonable inference.”61 In other words,
Tyson believes that the Mt. Clemens decision is relevant only after an employee has
demonstrated with individualized evidence that he performed uncompensated overtime
work and therefore should not be read to sanction plaintiffs’ use of statistical evidence to
estimate the amount of injury the class collectively suffered.
Tyson raises another independent ground for reversing the decision below: the
inclusion of hundreds of uninjured class members in the class deprives the class of
Article III standing.62 Tyson introduces a new test to determine if plaintiffs have
constitutional and statutory standing: plaintiffs must show “(1) that they can prove with
common evidence that all class members were injured, or (2) that there is a mechanism
for identifying the uninjured class members and ensuring that they do not contribute to
the size of the damages award and cannot recover damages.”63 If plaintiffs fail to meet
either requirement prior to certification, Tyson argues, common issues cannot
predominate and the class cannot be certified.64 Even after the class is certified, Tyson
60
Pet. Br. 19.
Pet Br. 19-20.
62
Pet Br. 20.
63
Pet. Br. 21.
64
Pet. Br. 21.
61
suggests, the court may reconsider the certification decision “if it later appears that
plaintiffs’ proof is insufficient to establish classwide injury or the culling mechanism is
unworkable or inadequate.”65
On the other hand, the plaintiffs rely heavily on the Supreme Court’s Mt. Clemens
ruling to support the lower courts’ conclusion that common questions predominate.66
First, the class identifies four common contentions about whether their work was
compensable under federal and state wage-and-hour laws and point out that Tyson
conceded that those issues would “dominate” the litigation.67 Second, four of the five
questions on the verdict form were compensability issues that are common to the class
and therefore the workers argue that the district court did not abuse its discretion in
finding that issues regarding the compensability of the workers’ work predominated.68
The only issue that is individualized, which is the actual number of hours class members
spent on compensable activities, would have been easy to resolve had Tyson had proper
records of those hours as required by the FLSA and Iowa law.69
Per Mt. Clemens, the class argues that Tyson’s violation of its statutory
recordkeeping duties permits them to “demonstrate the ‘appropriate’ time worked ‘as a
matter of just and reasonable inference.”70 The class rejects Tyson’s argument that the Mt.
Clemens rule is limited to determining the amount of damages.71 Rather, “Mt. Clemens’
core holding,” according to the class, is that “where the defendant has deprived workers
65
Pet. Br. 21.
Resp. Br. at 22. Tyson Foods, Inc. v. Bouaphakeo, 2015 WL 5634431 (U.S.), 3 (U.S.
2015) (hereinafter “Resp. Br.”).
67
Resp. Br. 23.
68
Resp. Br. 23.
69
Resp. Br. 23.
70
Resp. Br. 24, quoting Mt Clemens 328 U.S. at 687-99.
71
Resp. Br. 24, 43-44.
66
of accurate records… [w]orkers may satisfy their evidentiary burden through reasonable
approximation under an objective, classwide standard.”72 Furthermore, the class points
out that the Mt. Clemens evidentiary standard is a substantive rule and therefore the
district court, by applying the rule to justify certification, did not violate the Rules
Enabling Act and the Due Process Clause as Tyson claims.73
The class distinguishes this case from Wal-Mart and argues that the statistical
model it employs is not the “trial by formula” that the Supreme Court explicitly rejected
in Wal-Mart.74 Lastly, the class argues that Tyson lacks standing to complain about the
district court’s lump-sum damages award, because it invited the error by insisting on an
aggregated verdict and the allocation of the verdict does not change Tyson’s liability. 75
Besides, the jury instruction ensured that uninjured class members would not receive any
damages award.76
VI. ANALYSIS
The case turns on two determinations: whether the Court’s decision in Mt.
Clemens supports the plaintiffs’ use of statistical averaging to establish classwide liability
and damages, and whether, for a class or a collective action to be certified and
maintained, the plaintiffs have to make sure that uninjured class members do not get any
damages award. This article will only address the first question, which can be further split
into two inquiries: whether Mt. Clemens applies and whether the plaintiffs’ use of
statistical averaging is proper.
72
Resp. Br. 39.
Resp. Br. 25.
74
Resp. Br. 25, 50.
75
Resp. Br. 26, 57-58.
76
Resp. Br. 26, 59.
73
On the question of whether Mt. Clemens applies, the parties differ on two points.
First, the plaintiffs read Mt. Clemens to govern the determination of both liability and
damages, while Tyson reads Mt. Clemens rule to only apply when “damage is…certain”
and the “uncertainty lies only in the amount of damages.”77 Here, the parties are
essentially arguing about what needs to be satisfied before the Mt. Clemens rule applies.
Tyson wants the plaintiffs to prove that for each individual class member, the amount of
work she did exceeded the 40-hour overtime threshold, before the Court uses the Mt.
Clemens rule to determine how much overtime the plaintiffs are owed.78 However, as the
plaintiffs point out, “where the ‘liability’ question is simply whether an employee
suffered any damages,” the distinction between liability and damages is “untenable.”79 In
this case, proving one will necessarily prove the other, because the amount of
uncompensated work the plaintiffs performed is the only fact governing both liability and
damages.80 Therefore, it is nonsensical to require the plaintiffs to establish liability before
they can use “just and reasonable inference” to establish the amount of damages.
Moreover, such a requirement would defeat the central purpose of the Mt.
Clemens decision, which is to set an employee’s “burden of proving that he performed
work for which he was not properly compensated” with “[d]ue regard” to the fact that “it
is the employer who has the duty to keep proper records.”81
Second, the parties dispute whether Tyson improperly failed to record time spent
on donning, doffing, cleaning and walking activities. The Supreme Court in Mt. Clemens
77
Mt. Clemens, 328 U.S. at 688.
Pet. Br. 39.
79
Resp. Br. 43.
80
Resp. Br. 43.
81
Mt. Clemens, 328 U.S. at 687.
78
allowed the employees to use “just and reasonable inference” to prove their claims when
the employer violated its recordkeeping duty under FLSA.82 But if the employer did not
violate its duty, then Mt. Clemens would not apply. Tyson argues that it properly relied
on the 1996 Reich v. IBP decision, which “held that Tyson’s predecessor, IBP, did not
have to pay for donning and doffing standard protective equipment and sanitary clothing,
or for associated walking between the locker room and work station,” and therefore it did
not improperly fail to record time spent on these activities.83 Further, because the
government in Reich “agreed that four minutes was sufficient compensation” for
“donning, doffing and cleaning the ‘unique’ protective equipment,” Tyson’s failure to
record time for those activities is justified as well.84 However, as the US brief points out,
the Department of Labor in Reich only allowed IBP to pay four minutes of K-code time
“until such time as the Department announces its position with respect to recordkeeping
in the industry.”85 And in 2001, “the Department clarified that meatpacking companies
may not rely on such estimates and must instead ‘record and pay for each employee’s
actual hours of work, including compensable time spent putting on, taking off and
cleaning his or her protective equipment, clothing, or gear.’”86 Therefore, Tyson does not
have a valid excuse for not keeping the actual hours the employees spent on those
activities.
Furthermore, Tyson argues that the use of statistical averages to estimate the
liability and damages of the class constitutes “trial by formula,” which was explicitly
82
Id.
Reply Br. 1-2.
84
Reply Br. 1-2.
85
FT 2 US Br 8.
86
FT 2 US Br 8.
83
rejected by the Court in Wal-Mart.87 This is a misinterpretation of the term. In Wal-Mart,
the Court used “trial by formula” to describe a process “where liability and damages
would be determined for a sample of class members,” and “[t]he percentage of claims
determined to be valid would then be applied to the entire remaining class, and the
number of (presumptively) valid claims thus derived would be multiplied by the average
backpay award in the same set to arrive at the entire class recovery—without further
individualized proceedings.”88 However, unlike in Wal-Mart, where the plaintiffs only
proved liability for a sample set of class members, the plaintiffs in this case proved
liability for every class member by calculating the amount of time each member worked
“[u]sing ‘time sheets’ and ‘[p]ay data’ obtained ‘directly from [Tyson].’”89
Besides, Wal-Mart is so factually dissimilar to this case that it has little
precedential value here.90 Unlike Wal-Mart, which was a sex-discrimination class action
case involving a myriad of discretionary decisions, this case involves employees working
at the same plant, using similar equipment, and are subjected to the same company policy
that “systematically undercompensated them for compensable work under the FLSA and
state law.”91 Hence, Tyson’s attempt to use the Wal-Mart decision to undermine the Mt.
Clemens rule here will probably fail.
Relatedly, Tyson’s argument that variations in the time the plaintiffs spent
donning and doffing the different sanitary gear and protective equipment they wore
“rendered [the plaintiffs’] evidence insufficient for the jury to draw a reasonable
87
Pet. Br. 39.
Wal-Mart, 131 S.Ct. at 2561.
89
US Br. 20.
90
See Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 797-98 (8th Cir. 2014) cert.
granted, 135 S. Ct. 2806 (2015).
91
Resp. Br. 50; see also Bouaphakeo v. Tyson Foods, Inc., 765 F.3d at 798-799.
88
inference of the extent of class members’ uncompensated work” will probably fail too.92
First of all, whether the differences among class members are so great as to warrant
decertification is a factual inquiry for the jury to decide. Here, the jury returned a verdict
for the class, which suggests that it found the class members to be sufficiently similar to
permit reasonable inferences based on the plaintiffs’ representative evidence. Tyson
cannot ask the Court to overturn the jury’s factual determination without good reasons.
Second, because variations almost always exist among class members, adopting
Tyson’s standard would mean that virtually no class action may be certified. There is no
limiting principle in Tyson’s standard to prevent it from requiring “classwide evidence to
capture every minuscule variation in workers’ time.”93 And the Court openly rejected a
similarly stringent standard of proof the court of appeals demanded in Mt. Clemens 94
VII. CONCLUSION
For the reasons stated above, the Supreme Court should allow the use of statistical
averaging as common proof when considering whether to certify or maintain a class
action under Rule 23(b)(3) or a collective action under the FLSA.
92
US Br. 23.
Resp. Br. 42.
94
Mt. Clemens Pottery Co. v. Anderson, 149 F.2d 461, 462-465 (6th Cir. 1945); Mt.
Clemens, 328 U.S. at 686-687. (There, the court of appeals argued that the variations in
departments and positions required individualized proof rather than reliance on an
“estimated average of overtime worked.”).
93