Yesterday, the U.S. Supreme Court issued a 6-2 decision affirming a $2.9 million judgment against Tyson Foods, Inc. in an employment overtime pay case where statistical sampling was used to establish classwide liability and predominance of common issues. Tyson Foods Inc. v. Bouaphakeo et al., Case No. 14-1146 (U.S. March 22, 2016). The Court was careful to note that the “case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions.” Rather, the Court upheld the use of statistical sampling based on facts and law that are specific to the Fair Labor Standards Act (FLSA) and, in particular, to establishing the number of hours worked where there are no alternative means for doing so and the employees at issue are similarly situated.

While the Court did not expressly limit its reasoning to FLSA cases, it emphasized that “the fairness and utility of statistical methods in contexts other than those presented here will depend on the facts and circumstances particular to those cases.” Though the case has been closely watched because it raises important issues concerning uninjured class members, the Court concluded that consideration of those issues would be premature on the record before it.