The U.S. Supreme Court on March 22 handed down a decision in
Tyson Foods, Inc. v. Bouaphakeo. Tyson is
perhaps the most anticipated class action decision since the high
court's 2013 ruling in
Comcast v. Behrend. But far from providing valuable
new ammunition for class action defendants opposing certification,
the Tyson decision leaves open key questions about whether a class
may (1) rely on "trial by formula" to establish
class-wide liability and (2) include significant numbers of
uninjured class members.
Still, several avenues remain open for defendants to challenge
the mechanisms plaintiffs use to gather and present representative
evidence. In fact, the Tyson case potentially could have turned out
differently had the company alternatively framed its argument as a
Daubert challenge against the representative and
statistical evidence used to create the class.
