Some important Supreme Court cases are hard to accurately capture in a sound bite, and this is one of them. In a narrow holding, the Supreme Court issued a 6-2 decision in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___ (2016), addressing class claims for overtime compensation certified under Federal Rule of Civil Procedure 23 and the Fair Labor Standards Act of 1938 (FLSA). The Court rejected the employer’s appeal, which sought a blanket rule barring use of statistical proof to establish the elements necessary to certify a class or collective action. Some in the plaintiffs’ class action bar will no doubt cheer. However, Justice Kennedy’s opinion for the majority, joined by all but Justice Thomas, provides an analysis revealing that, in the right employment counsel’s hands, this decision can be a relatively powerful weapon in defeating class or collective action certification. Indeed, as we note below, the Tyson decision responds to and is limited by the Mt. Clemens presumption, which notes that in the absence of records it would be presumed that overtime was worked, and the question is how that overtime would be calculated. Although class action lawyers will surely write extensively about the reach of the opinion, at heart, this is a wage and hour case and to understand it properly, one should read it in that context.

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