Jenner & Block

“Clarifying the Impact of Classwide Damages Methodologies,” New York Law Journal

In this article, Jenner & Block Partner Jeremy M. Creelan and Associate David B. Diesenhouse examine the implications of a class action case before the US Supreme Court in its upcoming term.  The case is Tyson Foods v. Bouaphakeo, in which hourly workers at a Tyson plant sued on behalf of a purported class, alleging that Tyson failed to compensate employees for overtime work.  The authors explain that the case willexplore two related questions that could limit class actions brought under FRCP 23(b)(3).  The questions are: 1. may courts certify a class that uses statistical averaging, sampling methods or other representative proof to overcome differences between class members and determine liability and damages on a classwide basis and 2. may a class be certified when it includes members who have not been injured in any respect by the defendant’s conduct.