Dahlia Lithwick and Slate’s Amicus podcast: Reviewing class-action lawsuits.

Should Workers Assemble as a “Class” in the Courts? Dahlia Lithwick on Big Business and Class-Action Lawsuits.

Should Workers Assemble as a “Class” in the Courts? Dahlia Lithwick on Big Business and Class-Action Lawsuits.

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Nov. 19 2015 5:30 PM
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The “Class Dismissed” Transcript

From Tyson to Wal-Mart to Comcast, Slate’s Amicus host questions the effectiveness of class-action lawsuits. 

Tyson Foods v. Bouaphakeo
Activists with Mercy For Animals protest against Tyson Foods’ treatment of animals in front of the Supreme Court, Nov. 10, 2015, in Washington, D.C.

Photo illustration by Lisa Larson-Walker. Photo by Mark Wilson/Getty Images.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 30, in which Slate’s Dahlia Lithwick sits down with attorney Carter Phillips, a partner at Sidley Austin LLP who represented Tyson Foods this week in oral arguments at the Supreme Court. Phillips makes the case that the workers at Tyson Foods didn’t have the right to band together as a “class.”

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

When workers at a Tyson Foods meat-processing plant were told that they wouldn’t be on the clock when donning and doffing protective gear, they banded together and sued their employer. A jury decided that their class-action suit had merit and awarded them damages of close to $6 million.

To learn more about Amicus, click here.

We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the U.S. Supreme Court. I’m Dahlia Lithwick, Slate Supreme Court correspondent. One of the issues that the Supreme Court has been drilling deeply into in the last couple of years is the question of class-action litigation. It is certainly the case that the Roberts’ court has been slowly eroding the possibility of bringing a class-action suit.

That’s in response to the argument made by big businesses that class actions have simply become frivolous and costly, and they don’t even benefit the workers that they seek to help. This week, the court looked at one of four class-action cases that it has agreed to hear this year, this one involving a $5.8 million judgment against Tyson Foods, Incorporated, in a class action that claimed that they had underpaid their workers at a Storm Lake, Iowa, pork plant.

Why? Because Tyson allegedly did not compensate workers fairly for the time they spent suiting up in their protective gear and walking out to the slaughterhouse. Now, at the highest level of abstraction, the issue for the court is just whether everyone joined in a class has to prove individually that he or she was harmed in the same way by the claimed misconduct. In this case, that really has to do with how long it took to put your gear on. This is also one in the line of cases that just has to do with this question of when donning and doffing your work gear is part of a job for which you should be compensated.

But this appeal also raises some pretty unique questions about how statistical modeling can be used to calculate damages in these suits. Joining us today is Carter Phillips, who represented Tyson Foods this week at the high court. Phillips is a partner at the D.C. firm of Sidley Austin. He was managing partner of its D.C. office from 1995 to 2012. And Carter Phillips has also argued now 82 cases before the high court, more than any lawyer currently in private practice.

Welcome to Amicus, Carter Phillips.

Carter Phillips: Thanks, Dahlia. It’s good to talk with you.

Lithwick: I hope my characterization of the case is fair. But let’s try to break down the different pieces of it. The first thing I’m going to ask you to do is to help us understand. This case comes up under the Fair Labor Standards Act, FSLA. Can you help us understand what the FSLA is and what it does?

Phillips: Yeah, sure. That’s easy.

The Fair Labor Standards Act is a federal statute passed many years ago that requires that if an employer essentially insists that an employee work more than 40 hours in a single week, that the employer pay the employee one-and-a-half times the hourly compensation. A lot of questions arise in that context, as to what constitutes work. Employers obviously tend to set the work schedule in a particular way, and then, if they are activities related to whatever your main employment is that are necessary and indispensable, those then count as part of a 40-hour-work-week calculation.

Obviously, when those minutes take you above 40 hours in a week, then you’re entitled to time and a half. Sometimes employers are good at keeping track of all of that, and sometimes employers are less good at keeping track of all of that and for sometimes good reasons and sometimes not.

Lithwick: Now, you said something that’s important, which is that some employers do a really good job of keeping track of these extra tasks and some don’t.

I think one of the issues that was clearly bothering the court this week was, why doesn’t Tyson just have a big clock and keep track of how much time this donning and doffing takes? I want to play for you, just for one second if I may, David Frederick, who was the attorney on the other side of the case. Here’s David Frederick trying to make this point at the court yesterday.

David Frederick: If they put the punch clock right outside the locker room, so that the workers as soon as they went in the locker room punched in, this problem would have been eliminated. Because at that point when they are putting on the protective gear, the sanitary gear, and then they are walking. The walking is uniform for all class members. The sanitary is uniform for all class workers. So, when they’re putting on their equipment in the locker room, if they punched in, the company has satisfied the FLSA, and this problem goes away.

Lithwick: So, Carter, I guess I just want to ask you.

Isn’t this the simple, elegant solution here—to just have a punch clock and resolve this right at the front end?

Phillips: Realistically, no. Because the truth is, people don’t tend to necessarily put on all their equipment before they come out of the locker. They tend to put their equipment on sometimes on the line, sometimes at other times. There are literally 3,300 employees in this class who perform 400 different tasks and who dress in, candidly, very different equipment and put it on in very different ways.

And typically, in candor, they’re usually pretty happy to have the flexibility, so that they don’t have to be dressed and ready to go at a particular time. That if they want to go spend time in the cafeteria, talking about fantasy football, or how the University of Iowa’s football team did this week, they can do that, as opposed to sort of a more regimented system. So, there are practical problems that can’t be solved with a clock like that.

Because of that, the Department of Labor, which you’ll remember, they didn’t say anything about clocks. The truth is, the Department of Labor doesn’t rely on time clocks and doesn’t have great confidence that they will succeed. Indeed, if you go back to the old Supreme Court case that has the focus of a lot of the discussion of yesterday’s argument, that decision categorically rejected the idea that you can use time clocks as an end all, be all to determining these kinds of issues. Because candidly, it doesn’t work.

Lithwick: OK. So, we’ve established for our purposes that time clocks is not the way to determine how long it takes your workers to suit up. So, Tyson says, “Hey, here’s what we’re going to do. We’re coming up with this thing called K time.” K stands for knife. It’s basically an estimate for how long it’s going to take workers to suit up and get on their protective gear. The estimate is around four to eight minutes, that’s what Tyson is going to allocate as K time.

They’re going to credit that to the workers. On the other side of this case, however, we have experts who view a whole bunch of videos that say K time is just completely cattywampus. That is not a good estimate. It’s taking, by our lights, between 18 and 21 minutes for workers to get their protective gear, and their knives, and all of their stuff on and get out on the floor. Is that the distinction we’re looking at? That’s a big, big gap, right?

Phillips: Right. Their averages were 18.5 for one part of the plant and 21 minutes for the other part of the plant.

On the other hand, of course, not one of their witnesses testified that he or she had ever used anywhere near that much time to do any of those tasks. The jury came back with an award that was significantly lower than that. So, it’s pretty clear the jury rejected, categorically, that the 18.5 and 21 minutes reflected anything close to reality. Most people can put a hard hat on in less than five minutes.

Lithwick: Let’s loop back to the class-action component of this, which is I think the thing that garners so much interest.

You know, there’s so many class-action cases at the court. One of the things that you rest, it seems to me, the bulk of Tyson’s case is rested on what happened after Wal-Mart Stores v. Dukes in 2011. So, can you just sort of set the table and help us understand what Wal-Mart did and why it impacts so heavily on this case?

Phillips: Right. There are two holdings on Wal-Mart that are particularly important. One is, that class actions should not be permitted unless it’s possible to litigate them so that questions of liability and questions of injury can be decided in one stroke. That is, if you want to put it in the context of this case, I would say because everybody knows how much walking time is involved. Then the question is, is that walking time covered by the statute because there had been other activities prior to the walking time that justify going forward?

In that context, if you conclude that the workday began before the walking took place, you would say you’re entitled to all that walking time. The amount of walking time is the same for all of the employees. Therefore, that should go as a decision in one stroke. So, that’s one aspect. Then the other aspect of Wal-Mart is that it rejected the idea that in litigation, when there are differences, that you can just sort of patch over those differences among the plaintiffs in the class by saying, we’ll use a formula.

We’re not going to look at each individual employee. We’re going to use a formula that will mask those differences and allow you to resolve the case efficiently. So, those are to me the two big holdings. In the lower courts, we raised Wal-Mart immediately after it came in. We said, look, the problem with this case is that even their expert says that for specific tasks, the pre-shift putting on clothes varies from 30 seconds to more than 10-and-a-half minutes.

For what he would describe as the same activity, which is just simply putting on clothes prior to the shift. Which shows you that he’s lumping together an extraordinarily large numbers of employees who cover a very vast difference in terms of what time they take to get themselves ready to go to work. So, therefore, when you get to the point of, can you decide this in one stroke, well, no.

You would say, geez, these are wildly different. Even if they came in and testified with, it took me five minutes to get dressed, and I cross-examined you, I might very well be able to prove that actually it took you less than five minutes. It took you less than four minutes. But you can’t know that in one stroke. You have to litigate that individual by individual. And if that’s true, then that’s not an appropriate proceeding to go forward as a class action.

So, that’s the first half. Then the second half is, can you avoid those problems, as the expert did here, by just simply averaging across that wide swath of individuals? Our argument there is that that’s exactly the kind of trial by formula, as opposed to the opportunity to present individualized defenses that Wal-Mart seemed to suggest. And Comcast comes after that. There’s another Supreme Court case. But that those two cases seems to suggest that it’s fundamentally unfair to deprive the employer of his ability to put on individual defenses when you’re not going to decide the issue in one stroke.

That, in that context, is simply not supposed to be a class action.

Lithwick: I want to play for you a little bit of audio of David Frederick again on the other side, on the side of the class here, saying that there’s actually not that much of a difference between what the workers were donning and doffing. I want to hear your reaction to this.

David Frederick: Look, we’re talking about a difference between a Kevlar belly guard and a Plexiglas belly guard, or a metal mesh belly guard. We’re talking about the basic same kinds of gear. We’re talking about different kinds of gloves. But those variations were presented to the jury. They were found to be minor. The district court concluded that they were minor differences.

Lithwick: So, Carter, I wonder if what he’s saying is, come on, there’s not a huge, huge difference between the gear and the amount of time it takes to put it on. Of course we can make comparisons here.

Phillips: Yeah. The problem with that is, there are two ways of looking at it. Actually, there are three. First of all, the district court itself, when it certified this class, said that there are very significant differences among these employees, but was willing to overlook those differences because of what the judge said at the point was the commonality of gang time. Well, gang time is simply the method that Tyson uses for deciding when you’re at your principal workplace and when the workday ends at your principal workplace that’s on the line.

Gang time was never an issue in this case. It’s got nothing to do with anything, and it doesn’t bind any of these plaintiffs together. So, he was wrong. He should have stuck by his original statement, which was that there are very significant differences among all of these employees. If he had, candidly, he would not have certified the class. Two, the problem with saying these are small differences is that small differences, when you aggregate them by thousands of people, turn into very big numbers in terms of the liability and damages.

Lithwick: Going forward, does that mean you’re never, ever going to be able to create a class unless people literally don and doff precisely the same garb in precisely the same amount of time? Is that the sort of inexorable result of what you’re arguing?

Phillips: Well, the idea that you would have classes where people have essentially homogenous behavior, yeah, that’s exactly what I’m arguing. And that’s precisely what the 1966 amendments that created rule 23B3, is this sort of wild adventure in litigation, which is what it was described as.

You know, this is a very unusual device. It’s become much less unusual since 1966, as district courts and courts of appeals over time have basically said, well, you know, look, we’ve got a lot of plaintiffs here. We’ll lump them all together and then we’ll figure out how to resolve this in a way that’s efficient. Recognizing that more often than not what will happen is that the case will settle and it’ll go away. The truth is, if you’re going to litigate an issue like this on a class basis, it should not be by the use of averages when there are wide disparities in the activity that’s being measured.

If all you were talking about is people putting on two or three pieces of equipment consistently, that’s probably tryable on a class action basis. In the same way that you go back to Wal-Mart. When that case went back on remand, there were much smaller classes that were ultimately certified.

What the lower courts recognized was that the Supreme Court was saying, look, you can’t let these things become completely sprawling and out of control. You have to shrink them down so that you get the benefit of what the class action is designed to do, which is be able to efficiently and fairly decide cases in one stroke, as opposed to cases that have multiple strokes and then paper over those differences by trying to use some kind of statistical magic.

Lithwick: This is one of four big class-action cases at the court this term.

Do you have some working hypothesis about why so many of these cases came up, why the court is so interested in this one area of law right at this moment?

Phillips: Yeah. There are probably a couple thoughts on that score. First of all, the court has an interesting tendency, which I’ve seen over 30-plus years of doing this, of sort of clustering around issues. I can recall a time back in the 1980s when they took eight or nine double jeopardy cases, all in a row.

I think it was in the late ’90s and early part of this century that they went through a whole slew of ERISA cases. Maybe 12 or 14 ERISA cases. I don’t think it’s because they loved ERISA particularly.

Lithwick: Oh, who doesn’t love ERISA?

Phillips: The Employment Retirement Income Security Act is what ERISA stands for. But it’s essentially the retirement program. For people who have 401ks, they’ll know the laws that protect their 401k programs basically.

I think part of it is because the court recognizes that once it takes one of these cases, it feels comfortable and it’s more inclined to hear others, because there’s a familiarity with it. I think the other reason is because I think the court thought that in Wal-Mart and Comcast, it meant to send a fairly serious signal to the lower court that class actions had gotten out of control. That this really was meant a grand experiment, in a sense, in 1966, and was not meant to become the standard operating procedure of any litigation in which there are more than 30 plaintiffs joined together in litigation.

That you in fact are supposed to engage in a rigorous analysis of the requirements of the rule, and that the lower court had gotten out of the habit of doing that. There is still a fair amount of evidence that the lower courts are still blessing class actions in circumstances that seem at least arguably inappropriate.

Therefore, I think those issues are going to keep coming up until lower courts begin to take a more negative stance, or at least a more rigorous approach, to analyzing the class certification issue.

Lithwick: I want to give you an opportunity to respond to all the angry letters I’m going to get from people who say the more the court erodes the possibility of creating a real class and bringing a class action suit.

It’s not a surprise Wal-Mart and all the big businesses are on the side of your client, Tyson. The famous quote is, “Only a lunatic or fanatic would sue for $30.” I mean, there’s a reason that we bless class-action suits. They do put a thumb on the scale for, particularly in these labor cases, workers who can’t afford to bring case-by-case suits. So, what do you want to say them when they angrily tell you this is crazy. Tyson makes more money in a day than it would cost to just give these workers their overtime pay.

Phillips: Yeah, I think the answer to it is you’ve got to find a reasonable balance here. Probably prior to 1966, the balance would have tilted too far away from individuals trying to bring litigation. That’s part of the reason why the rule was adopted. I think if you rigorously apply the rule, you will still have class actions. As I said, Wal-Mart is still facing class action.

The problem is that the balance had gotten way out of control. You’re talking about situations where you have 1-and-a-half million employees who are very disparate bringing a class action. You have a situation, in our case, where you’ve got 3,300 employees across 400 different positions who are bringing a class action. It would have been easy, candidly, for the plaintiffs to stake out a much narrower ground. For the benefit of the employees involved, it would have in fact given them a much surer path, in my mind, to a recovery on an efficient basis.

As I said, the walking time here, I think, would have been significantly easier. That’s a million-dollar recovery for these employees, for whom I suspect they would have been delighted to get that. Rather than sort of running around in circles at this point trying to figure out what to do you when you allow this kind of a sprawling class to go to forward and the risks that ultimately higher courts will say, no, that’s gotten out of control.

To some extent, all that the court has done, and Wal-Mart and Comcast, has tried to bring it back more in balance and more in line with the intent of the original framers of the rule in 1966. Rather than what has happened, in terms of allowing everything to be handled as a class, and therefore all but assuring that the vast majority of these cases will settle on terms that are completely unrelated to the merits of the underlying dispute. Plaintiffs can complain all they want.

But I don’t think the idea of being in a position simply to extort money out of a large defendant on a claim that has little or no merit simply because you bring in a very large number of people and say, even though you have very little in common, we’re going to let you bring all of your claims together, is an essentially fair way of dealing with it. Unless you’re just in the business of wealth transfer, which that’s fine. But if you want to do that, then I suggest changing the tax scheme, or doing something else as a mechanism for dealing with big business.

Lithwick: Carter, I have to ask you one last question before I let you go, because we’ve talked, over the course of this podcast, to so many litigators. Am I correct that you have now argued 82 cases at the high court?

Phillips: It is 82 now.

Lithwick: Holy cow. So, here’s my question. I bet listeners would be surprised to know that you have a little totemic tradition that you deploy before you argue. I say that only because I think of you as a pretty not-superstitious guy.

I don’t know why I think that. But you’re a pretty stoic litigator, and yet you have a Buckeye habit. Can you tell us a little bit about that?

Phillips: Yeah. Well, I’m a proud alum of the Ohio State University, and their mascot is the Buckeye. So, I’ve always had Buckeyes in my office, just as a tribute to my alma mater. I don’t know, it seemed to make sense to me when I started to argue cases at the court that I’d stick a Buckeye in my pocket.

I don’t think it’s so much for superstition. I did it at the beginning and I survived. So far, every other 82 times, I’ve always survived and come back. And so, once you start down that path, it’s kind of hard to change direction. The flipside of that is, when I started arguing cases in 1982, solicitor general’s office didn’t do moot courts.

So, I didn’t do moot courts. It’s hard to think about suddenly starting to do moot courts after you’ve done 80-some oral arguments at the court.

Lithwick: Well, I guess it’s a good thing that you don’t have a metal Buckeye, because you’d set off all the metal detectors.

Phillips: I’d have to at least put it on. But that wouldn’t be a real Buckeye. I mean, if you’re going to do this, you might as well do it with the real thing.

Lithwick: Well, we so appreciate having someone of your just tremendous experience on the show.

Phillips: You’re too kind, Dahlia. I’m happy to be on the show.

Lithwick: Carter Phillips represented Tyson Foods this week. He is a partner at the D.C. firm of Sidley Austin, and was the managing partner of its D.C. office from 1995 to 2012. Carter, thank you again for joining us, and we look forward to talking to you at case number 106, 107, and 108 that you argue.

Phillips: I look forward to that, Dahlia. Thank you so much.

Lithwick: And now for something just a little bit different.

Now, despite the fact that some of you probably think that we at Amicus spend all of our time in darkened marble buildings, we are not totally unaware of the fact that there is in fact a federal election that’s going to take place in a year, and that a pretty entertaining contest to be in that election is happening right now. Now, if you listen to some of the putative candidates opining about how they would fix the Supreme Court, you might come to believe that rejiggering the entire institution is in fact a possibility, should they be elected.

Here, for instance, is Sen. Ted Cruz speaking on Fox News right after last spring’s big Supreme Court decisions in the marriage equality case and the Obamacare cases. Note that he’s so incensed at the Supreme Court that he proposed having judicial elections for them. He rails against the five elite unelected lawyers who comprise the court. Have a listen.

Ted Cruz: Every eight years, the people would have an up or down vote, with the option to remove a justice.
Megyn Kelly: What if the people bounced out Scalia and Alito and Thomas, and we had a President Obama in the White House?
Ted Cruz: Well, I can tell you that 20 states have put in place judicial retention elections, and they have worked. The people have used them sparingly. But the alternative is, who in their right mind would design a system where every major public policy issue of the day is decided not by the people, not by the Constitution, not by elected representatives, but by nine elite lawyers in Washington, D.C.?

Lithwick: For a variation on that theme, here’s Ben Carson also talking about marriage equality in an interview with Newsmax last spring, suggesting that maybe we could just do away with judicial review altogether, and presidents could get to ignore Supreme Court rulings they don’t like.

Ben Carson: First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land. The laws of the land come from the legislative branch. So, if the legislative branch creates a law or changes the law, the executive has the responsibility to carry it out. It doesn’t say that they have the responsibility to carry out a judicial law. And that’s something that we need to talk about.

Lithwick: Sometimes the candidates don’t want to fix the Supreme Court, so much as blame one another for its composition.

So, here’s Donald Trump at an event in Iowa last June blaming Jeb Bush for the existence of John Roberts as chief justice.

Donald Trump: If you think about it, Jeb Bush gave us Justice Roberts. He’s the one that pushed Justice Roberts. He worked with Jeb Bush. I don’t know if anybody knows that. And he pushed him. How could a thing like this happen? Obamacare was dead. Totally dead. And then Roberts, in order to be popular in the Beltway—
Who knows why? Who knows why? He came in with a shocking decision. Then he came in again last week with a shocking decision.

Lithwick: But Donald Trump does not hate all justices equally. As much as he seems to hate John Roberts, he heaps the love on Clarence Thomas in this August Bloomberg interview.

Trump: I like Clarence Thomas a lot. I will go with Clarence Thomas. In terms really of conservative decisions, he’s probably about the best there is on the Supreme Court.

Lithwick: But lest you think it’s only GOP candidates who want to talk volubly about the Supreme Court and the justices on the stump, here’s Bernie Sanders talking on Face the Nation this spring about how he’s still kind of mad about Citizens United, and has a litmus test for his Supreme Court nominee.

Bernie Sanders: That nominee will say that we are going to overturn this disastrous Supreme Court decision on Citizens United. Because that decision is undermining American democracy. I do not believe that billionaires should be able to buy politicians.

Lithwick: Now, if we’ve given you the impression that there is only rancor and anger between the Supreme Court and the president, it’s worth remembering that some of the justices really love President Obama. Here’s Ruth Bader Ginsburg.

Ruth Bader Ginsburg: There was rapport from the start between us.

Lithwick: Here’s Sonia Sotomayor talking about her pounding heart when Barack Obama tapped her for the Supreme Court.

Sonia Sotomayor: And I had my right hand, because my phone was in my left. I had my hand on my heart trying to quiet it. And it was the most electrifying moment of my life.

Lithwick: And not to be outdone, here’s Elena Kagan, long before she was tapped for the court or Obama was the president, telling us how much she likes him.

Elena Kagan: You know, that commitment to be of use, to give back, to make a real difference in the world, that’s what makes Barack Obama, Barack Obama.
And that’s what makes Barack Obama, for me and for so many others, a hero.

Lithwick: But whether the justices and the president love each other or hate each other or are indifferent to each other, it is simply a fact that four of the nine sitting Supreme Court justices will be either about to turn 80 or 80-something come the 2016 election. What that means for you is that you’re going to hear an awful lot more talk from potential candidates about the Supreme Court in the coming year.

We’ll leave you today with Donald Trump, forever amusing, on judicial temperament and integrity and the possibility of his sister being tapped for the U.S. Supreme Court if he gets elected.

Trump: Oh, my sister’s great. I have a sister who’s on the court of appeals, and she’s fantastic.
Mark Halperin: Would she be a good Supreme Court justice?
Trump: I think she would be phenomenal. I think she’d be one of the best. But frankly, I think she is—we’ll have to rule that out now. But I do have a sister who’s very smart, and a very good person.

Lithwick: And that is it for this episode of Amicus. We are eager to hear your thoughts. Our email address is amicus@slate.com. We love your letters. Thank you. We also love reading the reviews of our podcast that you leave on our iTunes page. So, if you haven’t already added one of your own, please take a minute to do so. Just search Amicus in the iTunes store. Click the ratings and reviews tab. Your reviews are a really great way to help other people find out about this podcast.

You can catch up on all of our past episodes at slate.com/amicus. And if you’re a Slate Plus member, you’ll find transcripts there as well. Thank you as always to the Virginia Foundation for the Humanities where this show is taped. Our producer is Tony Field, and Andy Bowers is our executive producer. Amicus is part of the Panoply network. Check out our entire roster of podcasts at itunes.com/panoply. I’m Dahlia Lithwick, and we will be back with you soon for another edition of Amicus.