Certification by Statistics: U.S. Supreme Court Upholds Use of Statistical Sampling in Tyson Foods Employment Class Action

Yesterday, the U.S. Supreme Court issued a 6-2 decision affirming a $2.9 million judgment against Tyson Foods, Inc. in an employment overtime pay case where statistical sampling was used to establish classwide liability and predominance of common issues. Tyson Foods Inc. v. Bouaphakeo et al., Case No. 14-1146 (U.S. March 22, 2016). The Court was careful to note that the “case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions.” Rather, the Court upheld the use of statistical sampling based on facts and law that are specific to the Fair Labor Standards Act (FLSA) and, in particular, to establishing the number of hours worked where there are no alternative means for doing so and the employees at issue are similarly situated.