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Member, Beacon International Group, Ltd.
The primary question on which the U.S Supreme Court’s 6-2 ruling in Tyson Foods Inc. v. Peg Bouaphakeo et al. focused was the admissibility of statistical evidence.
Left undetermined, however, was the question of whether the class should have been certified because it included members who did not work overtime in donning and doffing their work clothes and were therefore not “injured.” That part of the issue was returned to district court.
“The question of whether uninjured class members may recover is one of great importance,” the high court said in its March ruling. The majority concluded, however, that whether a methodology can successfully identify uninjured class members is “premature” at this point in the litigation.
In his concurring opinion, in which Justice Samuel Alito joined in part, Chief Justice John Roberts said that while he agreed that considering the issue now is premature, “I am not convinced that the district court will be able to devise a means of distributing the aggregate award only to injured class members.”
“It’s just plainly impermissible” to expand liability to include uninjured class members, said Penelope A. Preovolos, a partner at Morrison & Foerster L.L.P. in San Francisco.
The district court now will try “to separate the wheat from the chaff” on which workers are entitled to recover damages, said Kevin M. McGinty a member of Mintz, Levin, Cohn Ferris Glovsky & Popeo P.C. in Boston. Tyson does not think it is possible to make that distinction, he said.
The court achieved a majority ruling only because it did not rule on this issue, said Eric R. Magnus, a principal in Jackson Lewis P.C.’s Atlanta office. Meanwhile, “Justice Roberts’ concurrence will certainly have an impact on the court when the next case comes along,” said Kenneth L. Racowski, counsel at Buchanan, Ingersoll & Rooney P.C. in Philadelphia.