It’s hard enough to predict what the Supreme Court will do on a given case even after it has been briefed and oral argument has been heard. It’s even harder when all we have is the decision accepting certiorari, but this one is important enough to note. The Supreme Court has now accepted certiorari in a case that may present significant issues regarding when class and collective actions may be certified, and whether and how damages and liability may be determined on a class-wide basis.

The underlying facts are simple enough. In Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th Cir. 2014), the plaintiffs were hourly workers at an Iowa meat processing plant. They brought a collective action under the FLSA and a class action under Iowa law, essentially challenging the employer’s calculation of donning and doffing time. The district court certified both the FLSA and Iowa claims and the case proceeded to trial, where the plaintiffs relied, at least in part, on statistical expert testimony on the time spent by the workers in donning and doffing duties. The jury returned a large verdict against the employer and in favor of the class. The Eighth Circuit, in a 2:1 decision, upheld that verdict, rejecting arguments by the employer that (1) the case should never have been certified given differences in time spent among the class; (2) the use of statistics was improper and constituted “Trial by Formula” in violation of the teachings of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011). The dissent not only would have reversed on these grounds, but it also noted that the case highlighted the problems of combining Rule 23 state law claims with FLSA Section 16(b) collective actions and should have been reversed for that reason as well.

Certiorari was certainly a long shot. The Supreme Court decided another case involving preliminary or postliminary work just months ago. But the case was important enough to draw briefs from seven amici on the issue of certiorari alone, and on June 8, the Supreme Court did grant review. The Court’s order did not specifically state the issues to be considered, but the employer’s petition presented two questions:


The Bouaphakeo case (in time, it will probably be called the “Tyson Foods” case since “Tyson” is much easier to pronounce) should prove significant. It will be the first post-Dukes Supreme Court case regarding the propriety of certifying a wage and hour class action, and the first directly addressing the Dukes admonition to avoid “Trial by Formula.” It may also shed light on the procedural quagmire created by the simultaneous use of Rule 23 class actions and Section 16(b) collective actions and potential differences among the two. Assuming the Supreme Court reaches and addresses the questions presented, Bouaphakeo may decide how wage and hour claims are litigated for years to come.

The bottom line: The U.S. Supreme Court has now accepted review of a case that has the potential to shape or reshape the questions of whether wage and hour claims can proceed as class or collective claims and, if so, how they are to be tried.