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In 2011, U.S. Supreme Court Justice Antonin Scalia wrote a 5-4 decision for the U. S. Supreme Court, in Wal-Mart-Stores v. Dukes, reversing the certification of a nationwide employment class action of women against WalMart, involving promotions within the company, condemning “Trial by Formula”, his way of referring to using evidence from a sample of the members of the plaintiff class, and extrapolating those results to the whole class.

These comments were read by some as a shot across the bow at the very prospect of class actions, because the trial of a case involving a group of similarly situated could turn unwieldy if the entire group is to be called into court to each tell their account, instead of using some fairly arrived at sample group to focus on to make the case more manageable.

However, another case presenting the viability of use of statistical proof came before the Supreme Court for argument in November, 2015. This time the case, Tyson Foods v. Bouaphakeo,  involved a class and collective action for overtime pay brought by employees of Tyson Foods in a pork processing plant in Iowa.  The employees claimed overtime pay for the time they spent putting on and taking off the special protective gear they had to wear for the job, which time resulted in their working more than 40 hour weeks. Since the employer had no records of the time putting on and taking off the protective gear, the employees hired an expert, who did a study and estimated the time involved based on looking at a sample of the employees. On March 22, 2016, the Court decided that the results of the study were permissible evidence to establish the number of overtime hours worked. This was a 6-2 decision of an eight member court. The Court was down one member as Justice Scalia died between the time of the oral argument and the decision. (His vote would not have changed the outcome.)

In an era where class actions have come under one conservative attack after another, this decision reinforces that in cases where large groups of people and quantitative damages are involved, the Courts can make a determination using a reasonable sample. Plaintiffs will not be put to the test of bringing on every member of the class to testify or else lose their case.  It also means that cases involving wage and hour law claims will not become marathons of endless, tedious testimony which can only cost the taxpayers more for the use of the courts, and drive judges and juries nuts having to listen to it all.

Thank you, Justices Kennedy, Roberts, Ginsburg, Breyer, Sotomayor and Kagan. As for Justice Scalia, may he rest in peace, and we are sorry that he didn’t live long enough to lose another one.