In June, the U.S. Supreme Court granted certiorari in the case Bouaphakeo v. Tyson Foods. There, the court will—for the third time this decade—address the certification of a class action under Rule 23 of the Federal Rules of Civil Procedure. Specifically, the court has been asked to review the use of statistical averages in liability and damages calculations as well as the inclusion of potentially uninjured individuals within a class. The court’s answers will no doubt be of interest to all court watchers lay and professional, with antitrust practitioners and hobbyists apt to pay particularly close attention to Tyson’s potential impact on private antitrust class actions proceeding under Section 4 of the Clayton Act.


The underlying action was brought by employees at Tyson’s meat-processing facility in Storm Lake, Iowa. Tyson paid such workers for what the company refers to as “gang time”—i.e., time when employees are at their work stations and the production line is moving. Tyson also paid a daily amount of “K-Code” time to employees who, because they worked with knives or in departments where individuals worked with knives,1 were required to don and doff personal protective equipment and walk to and from the production line. K-Code time was fixed, and Tyson did not record the actual amount of time each employee spent donning, doffing, and walking.

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