Yesterday, the United States Supreme Court granted Tyson Foods’ petition for certiorari to review the Eighth Circuit’s opinion upholding class certification in a donning and doffing case. A class of Tyson employees brought the suit seeking compensation for time they spent putting on (donning) or removing (doffing) protective equipment and clothing. The decision promises to be most important clarification yet of the scope of the Supreme Court’s Wal-Mart Stores, Inc. v. Dukes decision. The two questions presented for certiorari were: (1) whether differences in individual class members may be ignored and a class certified where “liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample” and (2) whether a class can be certified when it consists of “hundreds of members who were not injured and have no legal right to any damages.” The Eighth Circuit affirmed a $5.8 million jury verdict for plaintiffs in a divided opinion. En banc review was denied in a 6 to 5 vote. A key question dividing the majority and the dissent was the role that “company policy” plays in class certification analysis. The majority pointed to Tyson’s “specific company policy” regarding donning and doffing. The dissent agreed that the policy existed, but did not believe the policy’s application could result in a “common answer” because the donning and doffing issue must be determined on an individual basis. Another key question facing SCOTUS will be the role of statistics in satisfying commonality and whether a single-sum jury verdict in the case – based on “average” damages — amounts to an impermissible “trial by formula.” The case will be argued in the fall.
