The U.S. Supreme Court recently granted certiorari to Tyson Foods, Inc. v. Bouaphakeo, a case which has the potential to shake up the class action bar.

The case revolves around a dispute raised by Tyson pork-processing workers from an Iowa plant who alleged they were underpaid for time spent putting on and taking off protective gear and walking to and from workstations. The scope of the class was created using statistical information about how much time the average Tyson worker took to don the gear and get to their work station. No individualized analysis of class members was undergone. The class was awarded a $5.8 million judgment at trial and the 8^th Circuit Court of Appeals upheld the judgment. In challenging the judgment, Tyson contends the workers’ class should not have been certified because there were significant differences in the types of protective gear and equipment used by different workers. They argue these differences are significant enough to violate Federal Rule of Civil Procedure (FRCP) 23(a)(2), “there are questions of law or fact common to the class.” Under FRCP 23(b)(3), these questions must “predominate over any questions affecting only individual members.” Tyson further argues that class certification was inappropriate because hundreds of uninjured members (who would wrongfully be entitled to receive benefits) are in the class. The outcome of this case could be as groundbreaking as the Court’s 2011 decision in Wal-Mart Stores v. Dukes.

This case is representative of a series of litigation which has been winding its way through the federal courts. These cases all concern the same general question – whether or not a class can be certified by use of statistics when there are individualized differences among the members and the membership includes many individuals who are uninjured. The Supreme Court has yet to act on similar certiorari petitions, in Wal-Mart Stores v. Braun and Dow Chemical v. Industrial Polymers Inc.