U.S.
Spencer Tirey / The New York Times / Redux
Lawyers for one of the world’s largest meat producers, Tyson Foods, are urging the Supreme Court to take its side in a case that could affect the rights of low-wage workers and, more broadly, people who want to bring class-action lawsuits. Tyson Foods, Inc. v. Bouaphakeo is one of four cases currently being argued before the court that concern group litigation — historically, a vehicle used by employees and consumers lacking the resources to press individual claims against large companies.
The Tyson case was originally filed by six immigrant workers in an Iowa chicken-processing factory over alleged unpaid overtime wages for the minutes — and accumulated hours — spent “donning and doffing” protective equipment, such as rubber gloves, an apron, a hairnet and, in some cases, earplugs, a hardhat and plastic, knife-proof belly guard. During the trial, Peg Bouaphakeo and her coworkers offered testimony and statistical estimates to prove just how much money they were owed, in light of the fact that the employer had failed to keep legally required records. This uncompensated time before and after work, the employees claimed, added up to significant “wage theft” for some fraction of a class of over 3,300 low-wage plaintiffs, though any individual’s case would be too small to litigate on its own. The jury awarded the class $5.8 million in unpaid wages.
In its appeal to the Supreme Court, Tyson Foods maintains that the class action was improper, given variations in the time employees need to put on and remove protective gear. Although the company did not precisely document people’s work hours, say Tyson attorneys and business associations who have submitted friend-of-the-court briefs, employees should have to prove their claims one by one, not in a collective “trial by formula.” If the court sides with the corporation, it would expand its 2011 ruling in Wal-Mart v. Dukes, where female employees were found too diverse to proceed in a class action, despite their shared allegation of discrimination based on sex.
Three other cases before the Supreme Court examine the viability of group claims, though in a consumer rights’ context. Spokeo, Inc. v. Robbins asks whether someone who has suffered the violation of a statute but no concrete damage (in this case, for having inaccurate information about him published online), can bring a lawsuit on behalf of similarly situated people — a question with implications for civil rights litigation. Campbell-Ewald Co. v. Gomez considers if a class action should be dismissed when a defendant offers to pay the named, representative plaintiff all the monetary damages he or she seeks (here, for unwanted text messages sent by a military recruiter). And DirecTV, Inc. v. Imburgia concerns a satellite TV contract that limits a customer’s legal recourse to individual arbitration, a private, non-judicial option bolstered by the Supreme Court in recent years.
In each of these consumer cases and Tyson Foods, it’s the corporate defendant that successfully convinced the justices to hear their appeal. (The Supreme Court generally has the choice whether to take or reject a request for review.) But according to attorney Cory Andrews at the non-profit, libertarian Washington Legal Foundation (WLF), which submitted friend-of-the-court briefs in all four of the above cases, the court’s willingness to adjudicate these issues reflects a suspicion of runaway lawsuits, rather than any pro-business agenda.
“Litigation is very, very expensive. … Arbitration is one way to resolve disputes efficiently and economically,” he said. His colleague Richard Samp, chief counsel of WLF, added: “A number of members of the Supreme Court think that the class action device is being abused by plaintiffs’ attorneys as a way of generating fees for themselves, without necessarily keeping in mind the interest of individual plaintiffs.”
It may be true that some plaintiffs'-side lawyers recoup disproportionate fees, but that's rarely the case when it comes to class-action litigation involving low-wage laborers, according to Reena Arora, a workers' rights attorney at the non-profit Empire Justice Center in New York. The group mechanism at issue in the Tyson Foods case is a critical tool, she explained, since vulnerable workers often “can't unionize; they don't have a collective-bargaining procedure, so this is their only way.”
The same goes for consumers, said Paul Bland, lawyer and executive director of the progressive non-profit group, Public Justice. Nearly all fine-print contracts these days — for a job or cell phone or college education — contain a paragraph stipulating that the customer, in case of a dispute, will pursue an individual rather than a group proceeding, in front of a privately paid arbitrator instead of a judge. A recent New York Times investigation into mandatory arbitration found that it can deprive people of their right to seek redress. “There are in fact hundreds of judges out there that think the Supreme Court’s arbitration cases have gone way too far in favor of corporate interests,” Bland explained, citing the 2011 case, AT&T Mobility v. Concepcion, which approved the use of litigation-waivers in boilerplate contracts. “But sometimes what corporations demand is so greedy, the court just can’t do it. … So are there five votes to give companies free reign [in the current set of cases]? I hope not.”
The Supreme Court’s embrace of arbitration notwithstanding, critics have emerged in other branches of government. Last month, the Consumer Financial Protection Bureau (CFPB) proposed eliminating mandatory arbitration clauses in the various products it oversees, including auto and student loans, credit cards, bank accounts and money-transfer services. This recommendation follows a report the Bureau released in March, which found that individual consumers with grievances were extremely unlikely to pursue either litigation or arbitration. The Arbitration Fairness Act, which would roll back the decision in AT&T Mobility v. Concepcion, was introduced in the House of Representatives earlier this year but has little chance of succeeding.
Jim Lardner, communications director of the left-leaning non-profit, Americans for Financial Reform, hopes that the CFPB proposal might safeguard consumers’ ability to access the courts. “The idea of forced arbitration as an alternative to court goes back to the 1920s, but it was, for most of its history, a practice between businesses,” he said. “The idea that it would be used by consumers to resolve their claims against large corporations is a more recent practice [that] has spread insanely fast.”
The DirecTV, Campbell-Ewald and Spokeo cases have already been presented to the Supreme Court in oral argument. At the proceeding on Campbell-Ewald v. Gomez (again, about the viability of a class-action lawsuit once a representative plaintiff is paid in full), the four justices known to be more conservative — Chief Justice John Roberts, Samuel Alito, Clarence Thomas and Antonin Scalia — seemed inclined toward the corporation’s arguments, ever skeptical of the class-action device. But so did more liberal justices, though on narrower, more legally technical grounds.
How the court reacts this week to Tyson Foods v. Bouaphakeo may provide a further signal: Is group litigation any more palatable when it involves low-wage workers, those least able to access justice otherwise?
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