Will class action ascertainability come to SCOTUS through Tyson back door?

October 26, 2015

This summer, the 7th U.S. Circuit Court of Appeals explicitly renounced the reasoning of its fellow judges on the 3rd Circuit on a topic that has become all the rage in class action litigation: ascertainability. The 3rd Circuit has said in a series of cases culminating in its 2013 decision in Carrera v. Bayer that trial judges may not certify classes unless plaintiffs’ lawyers offer a “reliable and administratively feasible” way to figure out who is a class member. The 7th Circuit said the 3rd Circuit analysis throws the class action rules out of balance, giving too much weight to assuring the purity of the class.

Now the question of ascertaining class membership is before the U.S. Supreme Court – but not in a case in which it was an issue below. (The defendant in the 7th Circuit case, Mullins v. Direct Digital, doesn’t yet seem to have filed a petition for certiorari though it informed the appeals court that it intends to.) In a reply brief filed last week in Tyson Foods v. Bouaphakeo, Tyson has subtly reframed one of the questions the Supreme Court agreed to hear in its case.

The Tyson suit involves a wage-and-hour case brought by employees at a Tyson meat processing plant in Iowa who claimed they weren’t being paid enough for the time they took to get into and out of cumbersome protective gear. Jurors found for the workers, who won a final judgment of about $6 million. Tyson and its lawyers at Sidley Austin asked the Supreme Court to take up two issues in the case: whether the jury’s liability and damages determinations were improperly based on a statistically “average” worker’s changing time; and the much broader question of whether a class can be certified if it contains some members who have not been injured and are not entitled to damages.

Tyson’s cert petition contended that classes cannot be certified if they contain uninjured class members because those plaintiffs do not meet constitutional standing requirements. (That position, you won’t be surprised to hear, has since been heartily advocated in amicus filings by Tyson’s supporters in the business lobby.) But Tyson’s merits brief was a bit less emphatic. It stepped back from the extreme position that classes with uninjured claimants can’t be certified, adding a fallback argument that plaintiffs must at least be able to show a mechanism for culling uninjured claimants from the class.

Tyson’s more moderate position led the Tyson workers, represented by Scott Michelman of Public Citizen, to assert in their merits brief that Tyson had pulled a bait-and-switch, presenting one question but arguing another. The workers said the justices should consider dismissing that part of Tyson’s case entirely – an argument asserted even more forcefully in an amicus brief by several public interest groups. The amicus brief urged the Supreme Court to dismiss Tyson’s case entirely “so as not to reward ‘bait and switch’ tactics.”

Tyson’s new reply brief calls for the dismissal of part (or all) of its case to be “nonsense.” There is still a vast gulf between its position and the plaintiffs’ contention that constitutional standing for a single class member confers standing upon an entire class. “Tyson’s fundamental point,” the brief said, “is that plaintiffs and many lower courts too easily assume that the problem of uninjured class members can be resolved at some later time, and that reliance on such an assumption is impermissible. The rigorous culling requirement that Tyson advocates – and that Article III demands – would change the law in many circuits.”

That sounds an awful lot like defendants’ ascertainability arguments. And what’s so interesting about Tyson’s brief is the suggestion that it made a strategic decision to argue that plaintiffs must present a plan to sift uninjured plaintiffs out of the class rather than sticking with the absolutist position that classes can’t be certified if they may contain uninjured claimants. ” may have anticipated (or hoped) that Tyson would stake out a more absolutist position,” the brief said, hinting that the class action bar thought Tyson would lose its constitutional standing argument.

Tyson also must have thought it had a better chance of persuading a majority of the justices to require an ascertainability plan or else it wouldn’t have shifted its argument. In any event, its new brief said the company is entitled to make any argument it wants to back its constitutional standing claim.

There is no indication on the Supreme Court docket that the justices have any intention of dismissing all or part of the Tyson case. It will be interesting to find out at the Nov. 10 oral argument whether the court is as intrigued by Tyson’s moderation as I am.

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