The benefit of friends: Big business goes after class actions in SCOTUS Tyson case

August 20, 2015

I’ve been predicting this since June: Class actions face a fundamental threat in the upcoming U.S. Supreme Court term. We already had evidence from the 17 amicus briefs class action foes filed last month in Spokeo v. Robins, urging the justices to do away with class actions based on federal laws granting consumers a private right of action to enforce statutory violations. Now business groups are piling on in Tyson Foods v. Bouaphakeo.

Tyson has attracted support from nearly two dozen amici in 13 separate briefs filed last week. And one of the arguments they’re making in Tyson would go even farther than Spokeo in curtailing class actions as we know them.

As Tyson’s lawyers from Sidley Austin explained in their Aug. 7 merits brief, the company is challenging a nearly $6 million verdict in a wage-and-hour class and collective action by workers at a meat-processing plant in Iowa. Tyson claims the trial court and the 8th U.S. Circuit Court of Appeals committed two essential mistakes: They permitted the jury to reach liability and damages verdicts based on a statistical average of workers’ hours and pay; and they permitted the certification of a class of employees that, according to the plaintiffs’ own expert, included a significant number of people who weren’t underpaid at all.

The Supreme Court agreed to consider both the statistical sampling and uninjured class member issues when it took the case in June. Tyson’s merits brief gave top billing to the statistics question and even seemed to step back a bit from the hard line the company took in its certiorari petition on certifying classes with uninjured plaintiffs. This time around, Tyson continued to argue that because uninjured plaintiffs do not have constitutional standing to sue, they should not be included in class actions. But instead of insisting only that classes cannot be certified if some class members haven’t been injured, Tyson added a fallback position: At the very least, class counsel must be required to present a workable plan for culling uninjured class members before damages are paid out. (That argument is entwined with the ongoing debate in the lower courts over the ascertainability of class members – a controversy that could also reach the Supreme Court this term.)

There’s no such moderation (albeit slight) in the briefs of Tyson supporters like the U.S. Chamber of Commerce, the National Association of Manufacturers and the Association of American Railroads. Unlike Tyson, these three amici (and the many additional business groups that signed the Chamber and NAM filings) make uninjured class members the centerpiece of their briefs, not the secondary argument. “This court can and should put a stop to such litigation abuse through its ruling in this case,” urged NAM’s counsel at Shook Hardy & Bacon. “It should make clear that class actions are not vehicles for awarding damages to individuals whose claims, if brought in their own names, would be dismissed.”

As several Tyson friends pointed out, requiring plaintiffs’ lawyers to demonstrate the injury of every potential class member would throw brakes on the class action vehicle itself. Right now, most federal circuits permit class actions to proceed as long as at least one name plaintiff has alleged an actual injury. Class action defendants have tried to use the Supreme Court’s rulings in Wal-Mart v. Dukes and Comcast v. Behrend to squelch cases in which some class members may not have been injured, but without much success. They are clearly hoping that the justices use the Tyson case to say explicitly what defendants have argued the court implied in Wal-Mart and Comcast.

Two other of the Tyson supporters, the Consumer Data Industry Association and TransUnion discussed the interplay between this case and Spokeo, arguing that the Supreme Court should employ a sort of one-two punch to be sure that uninjured plaintiffs are not permitted to sue in class actions, whether those class actions involve statutory violations or other alleged wrongdoing.

That double-whammy would be the worst possible outcome of the term for class action lawyers. It’s going to be interesting to see how many amici turn out to back plaintiffs in the Spokeo and Tyson cases, and whether they can match the sheer weight of support for the defendants. Amicus briefs in Spokeo will be due in early September, a week after the Aug. 31 deadline for the name plaintiff’s merits brief. (The latest counsel of record for the plaintiff, Thomas Robins, is William Consovoy of Consovoy McCarthy.) The Tyson employees, represented at the Supreme Court by Scott Michelman of Public Citizen, have a Sept. 22 deadline for their merits brief. Amici will file at the end of September.

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