INTRODUCTION 1808 I. THE TYSON LITIGATION 1809 II. COUNTERFACTUAL QUESTIONS REQUIRE COUNTERFACTUALLY RELEVANT EVIDENCE 1815 A. Counterfactual Evidence 1816 B. Counterfactual Evidence in the Tyson Case 1818 C. The Logical Relationship Between Counterfactual and Direct Evidence 1819 III. UNDERSTANDING THE TYSON DECISION: THE TRIANGLE OF LEGAL AUTHORITY AND THE CHARACTER OF THE EVIDENCE 1820 A. Substantive Law and the Counterfactual Character of Evidence 1823 1. The Statutory Substantive Law in Tyson 1823 2. Mt. Clemens, "Just and Reasonable Inference," and the Liability--Damages Distinction 1825 3. Summary as to substantive Law 1830 B. Evidence Law Matters, Too 1830 1. Federal Evidence Law as Applied to the Time-Study Evidence in Tyson 1831 2. Justice Thomas's Argument in Dissent 1833 3. The Critical Implications of Tyson's Failure to Challenge the Statistical Evidence 1835 IV. THE TRIANGLE OF LAW, THE ROLE OF EVIDENCE, AND PRACTICAL LITIGATION CHOICES 1877 CONCLUSION 1845 INTRODUCTION
Before the case was decided, it was clear that Tyson Foods, Inc. v. Bouaphakeo could have hammered a nail in much of class action law. (1) Tyson swung for the fences at the Supreme Court, arguing that the use of statistical evidence in a class action trial that the company had lost violated both the Rules Enabling Act and due process. Had the Court adopted Tyson's argument, it would have greatly restricted the use of the class action device whenever the members of a plaintiff class had any relevant non-commonality. As co-amici and I argued in a brief filed in support of the respondents, Tyson's approach involved a radical view of evidence that would have destabilized numerous areas of the law. (2) While the company struck out at the Court, it remains to be seen whether Tyson is game-over for those seeking to narrow Rule 23's reach when statistical evidence is involved. But as I shall argue below, the statistical character of the evidence in Tyson should not be regarded as especially important, and in any event, Tyson is important for broader reasons than its modest embrace of such evidence in class litigation.
In this Article I review the Tyson opinion and provide a relatively deep dive into the appropriate roles that both the evidence in the case and evidence law played. It is my hope that this analysis will be helpful in thinking about how the class action game should be played in an important set of future class certification cases, particularly those involving Rule 23(b)(3). Commentary on Tyson has rightly pointed to the role of the substantive law--here, the federal Fair Labor Standards Act (FLSA) and Iowa's Wage Payment Collection Law (IWPCL). (3) The substantive law certainly matters, of course. But I argue that the key to the Supreme Court's proper resolution in Tyson involves more than just that, since the Court made important connections between the substantive law, the questions the plaintiffs' evidence sought to answer, and evidence law itself. Evidence law and the character of the evidence in the case were not merely incidental to Tyson--they were integral to it.
Part I provides some basics about the Tyson litigation. Part II develops a view of the kind of evidence that the plaintiff class used in Tyson, which I call counterfactual evidence. Counterfactual evidence is evidence that can answer the question to which it is addressed only under inferential assumptions that themselves cannot be answered with direct evidence. In Tyson, both the representative testimony of named plaintiffs and the time study evidence had this character. Part III shows that a proper view of class certification in Tyson is aided by understanding this counterfactual character of the evidence--rather than anything about the statistical or even representative aspects of the time-study evidence. Part III also shows the comfortable fit of the counterfactual character of the evidence with substantive labor law at issue in Tyson, and it considers the important role of federal evidence law in Tyson.
Finally, Part IV draws together these ideas into what I call the "Triangle of Law" for considering class certification. The vertices of the Triangle represent the substantive law at issue in a case, Rule 23's provisions, and the Federal Rules of Evidence. Located in the center of the Triangle is the evidence in the particular litigation in question. This visual model is helpful because the three sources of law represented by the Triangle's vertices are bilaterally interconnected, and the evidence in any case will be connected to all three sources of law. These various links between evidence and sources of law help us visualize the practical connections between the various aspects of class action litigation, connections which the Tyson case and Supreme Court opinion illuminate. Thus the Triangle of Law, with evidence at its center, provides a contemporary reflection of what Steve Burbank and Sean Farhang describe as the 1966 Advisory Committee's focus on "turn[ing] federal jurisprudence from abstract inquiries to functional analysis that considers the practical as well as the formal legal effects of litigation." (4) Part IV concludes with a reflection on how greater emphasis on the practicalities of litigation would affect the consideration of two issues that were posed, but not taken up, in Tyson.
THE TYSON LITIGATION
The Tyson plaintiffs were employees at the Tyson Foods Storm Lake, Iowa hog processing plant. (5) They did dangerous, dirty, and difficult work on an assembly line that transformed live hogs into commercial meat products. (6) Employees on a shift were paid from the time that the first hog reached their station until the time that the last hog left it. (7) This system was referred to as the "gang time" system. (8) Employees brought suit claiming that the time spent walking to and from their stations and donning and doffing personal protective equipment before and after their shifts and lunch breaks constituted work activities under the FLSA. (9)
The FLSA mandates that covered employees who work more than forty hours in a week must be paid time-and-a-half for hours worked in excess of forty (1)" The plaintiffs in Tyson brought suit under the FLSA and sought to represent other employees at the plant. (11) Under the FLSA's representative action section, [section] 216(b), they have a right to do so "for and in behalf of . . . themselves and other employees similarly situated," provided that the other employees provide consent in writing. (12) The resulting "opt-in" action, sometimes known as a collective action, ultimately had 444 plaintiffs. (13)
It appears that the Rule 23 class action device is not available for claims brought directly under the FLSA. (14) But Rule 23 was involved in the Tyson litigation anyway. The IWPCL requires timely payment of wages owed." Overtime wages owed under the FLSA are also owed under the IWPCL, so the plaintiffs asserted derivative IWPCL claims against Tyson. Because the IWPCL claims arise under state law, [section] 216(b)'s opt-in requirement does not apply. Plaintiffs bringing such "hybrid" FLSA/state-law claims in federal court may use Rule 23(b)(3) to try to maintain a class action as long as there is federal subject matter jurisdiction. This is practically important to plaintiffs' attorneys because the opt-out nature of a Rule 23(b)(3) class action may yield a class size--and thus a damage award--that dwarfs those of the [section] 216(b) opt-in collective action. That is exactly what happened in Tyson, with the state-law opt-out class including nearly eight times as many plaintiffs as the FLSA opt-in class. (16)
Tyson contested the plaintiffs' motion for certification of both the FLSA opt-in and the IWPCL opt-out class actions. Rejecting Tyson's arguments, the district court certified overlapping classes consisting of all workers at the plant who were paid on the gang time system over a class period extending from February 7, 2005 to the "present"--presumably July 3, 2008, the date of the certification order." The district court's certification order came in a sixty-four-page memorandum opinion that gave extensive consideration to whether Rule 23's preconditions for certification were met. (18) In this opinion, Judge Bennett acknowledged that "Tyson points to numerous factual differences regarding the clothing and equipment employees wear, even among those paid on a gang time basisf.]" (19) But, he continued,
the court is not convinced these factual differences defeat commonality among all employees paid on a gang time basis. All employees paid on a gang time basis wear some sort of PPE, and all store their PPE in the same lockers, at the same plant, and all are required to don and doff their PPE. In addition, most all use some kind of knife, and also a scabbard or steel. (20) Further, Judge Bennett concluded that any factual differences were small enough that they didn't violate Rule 23(a)'s commonality requirement. (21) It does not appear that Tyson filed an interlocutory appeal pursuant to Rule 23(f). (22)
To win on the merits, the employees would have to prove both (1) that the donning, doffing, and walking activities constituted work; and (2) that Tyson had failed to pay overtime wages as a consequence of its failure to pay for the time these activities took. In addition, they would have to provide sufficient evidence to prove (3) the number of minutes of overtime for which Tyson had failed to pay its employees, such that the amount of unpaid overtime wages could be fairly calculated. (23) As to element (1), plaintiffs offered their own representative testimony as well as the testimony of Tyson managers. (24) To establish elements (2) and (3) they would need to measure the number of minutes each employee should have been paid, but was not, each day he or she worked.
The FLSA requires employers to keep records of employee work time. (25) Because Tyson did not pay employees for the...