Category Archives Dukes

Last week, the Supreme Court issued its opinion in Tyson Foods v. Bouaphakeo, No. 14-1146 (March 22, 2016), a closely watched case out of the 8th Circuit that presented two meaty issues relevant to class action practitioners: 1) whether a plaintiff can use statistical sampling to establish class-wide liability, aka "Trial-by-Formula"; and 2) whether a certified class can include uninjured claimants.  In its opinion affirming both class certification and the trial verdict, the Court did not make any broad pronouncements on the use of statistical evidence in classwide proceedings, but instead took a more measured approach on when such evidence may be used.  Our thoughts on the opinion are below. On the use of statistical evidence, Justice Kennedy, writing for the majority observed that "[a] categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability."  Instead, whether and when…

Following its grant of certiorari in Spokeo v. Robbins earlier this year, the United States Supreme Court has granted cert in yet another class action for the upcoming Fall Term that may have wide-ranging implications in the class action arena, particularly the wage-and-hour litigation. In Tyson Foods, Inc. v. Bouaphakeo, the Eighth Circuit recently affirmed the district court's decision to certify a class of hourly employees at a Tyson meat-processing facility in Iowa.  The plaintiffs alleged Tyson failed to provide FLSA overtime compensation for donning and doffing (putting on and taking off) protective gear before their shift formally started.  Although Tyson argued that there were significant factual differences between the workers in the putative class, the district court certified the case based on the plaintiffs' proposed statistical analysis calculating the “average” time spent donning and doffing the protective equipment, notwithstanding any employee’s actual individualized and personal circumstances.  The case was tried, ultimately resulting in a…

In a decision emphasizing the continuing viability of medical-monitoring class actions, the Missouri Court of Appeals clarified plaintiffs’ burden of proof at the class-certification stage by holding that the trial court may not consider expert testimony or other evidence that contradicts the plaintiffs’ theory of the case. In Elsea v. U.S. Engineering Company, No. 77687 (Mo. App. W.D. Mar. 17, 2015), the plaintiffs sought certification under Mo. Rule 52.08(b)(3) (the state-law counterpart to Rule 23(b)(3)) of a class of individuals who had spent two consecutive weeks or eighty hours in the Jackson County Courthouse after the defendants had performed a retrofit of the building.  According to the plaintiffs’ allegations and experts, asbestos dust was blown and tracked through the courthouse during the retrofit, putting putative class members at a significantly increased risk for latent disease.  The plaintiffs sought recovery of compensatory damages for the expense of necessary prospective medical monitoring. Following…

In a pair of decisions, the Tenth Circuit this week decertified two class actions involving gas-well owners in Kansas and Oklahoma who claimed they were underpaid royalties owed by XTO, a company that buys and produces gas from wells.  The pair of decisions illustrates that commonality is getting more scrutiny after Dukes. The dispute centered on IDM, the implied duty of marketability.  In many states - including Kansas and Oklahoma – there is an implied duty of marketability in gas leases.  That duty requires the lessee to bear the full cost of making the gas marketable (i.e. gathering, compressing, and processing the gas into a marketable product).  So, once a gas-well lessor and a lessee agree on a royalty to be paid per unit of gas, then the lessee must bear the full costs of making the gas marketable and may not deduct those costs from the agreed-upon royalty. In…

In another closely-watched case, the Supreme Court issued an opinion in Comcast v. Behrend, and reversed certification of a Rule 23(b)(3) antitrust class based on the lower courts' refusal to scrutinize the plaintiffs’ expert proposed damage model because doing so would require an inquiry into the merits.  In a 5-4 decision that split largely among ideological lines, the Court re-emphasized its earlier decision in Wal-Mart Stores, Inc. v. Dukes that courts must conduct a "rigorous analysis" of plaintiffs' damages theories even if that analysis involves an inquiry into overlapping merits issues.  More importantly, the decision potentially undermines the long-standing rule that individualized determinations of damages are not an obstacle to class certification. In Comcast, the Supreme Court reversed a Third Circuit decision upholding class certification in an antitrust action brought on behalf of more than 2 million current and former Comcast cable-television subscribers, claiming the cable company used an anti-competitive “clustering strategy” that drove…

Having grown up near Ann Arbor, and later attending college at the University of Michigan, I have no doubt probably ordered pizza delivery from Domino's dozens of times (the corporate headquarters is located at the beautiful Domino's Farms complex).  One thing I started to notice as a poor college student was the $1 "Delivery Fee" tacked on to each order.  I assumed that this surcharge was an automatic tip for the delivery drivers, and used it to rationalize my lack of generosity.  (I have since learned the error of my ways, and that these fees are not tips.) My naivety regarding the purposes of the delivery surcharge, however, is apparently not uncommon.  The Eighth Circuit recently decertified a statewide class of Minnesota pizza delivery drivers based on a lack of commonality under Dukes, based on the different information customers received regarding whether a delivery fee constituted a "tip."  Luiken v.…

As part of our analysis, we’ve been looking at how Missouri courts have been interpreting the United States Supreme Court’s decision in Wal Mart v. Dukes, 1341 S. Ct. 2541 (2011).  As you probably recall, Dukes has been lauded as a game-changer by some on the defense side, or dismissed by some as a recapitulation of prior law and the product of a really bad fact pattern by others.   Without getting into too much detail on a subject well-covered in several places, Justice Scalia wrote for the majority in reversing the certification of a massive class of some 1.5 million female current and former Wal Mart employees alleging Title VII discrimination under a disparate impact theory.  At the risk of oversimplifying, the Dukes majority denied certification under b(3) because in the absence of a companywide discriminatory pay and promotion policy, there was no common question, and denied injunctive certification under…

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