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The Tyson Foods Ruling
The Supreme Court's recent decision in Bouaphakeo v. Tyson Foods, 577 U.S. ' (2016) was decidedly not the sweeping ruling many practitioners anticipated. Nevertheless, the decision provided useful guidance for class-action litigants regarding the proper use of representative evidence ' i.e., that which requires the trier of fact to draw conclusions about one subset of the class, or even an individual putative class member, based on an analysis of a different part of the class. Likewise, the decision afforded litigants an interesting glimpse into the Court's disposition regarding certification where, by definition, the class includes unharmed members.
With respect to representative evidence, Bouaphakeo marks a clear departure from the recent trend of Supreme Court jurisprudence that tightened class-certification standards. While the Court was reluctant to endorse any hard and fast rules that manifestly favor employees or employers, the Bouaphakeo decision arguably softened the strict stance articulated by Justice Scalia just five years earlier in Dukes v. Wal-Mart.' With respect to uninjured class members, Chief Justice Roberts' concurrence provides defendants with a possible roadmap to certification challenges.
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