Goldberg and Silverman File Amicus Brief on “No Injury” Class Actions

Shook, Hardy & Bacon Washington D.C. Partners Phil Goldberg and Cary Silverman filed an amici brief inTyson Foods, Inc. v. Bouaphakeo.

The case involves the use of statistical sampling and the creation of an “average” employee to determine injury and damages under the Fair Labor Standards Act in claims seeking overtime wages for the time it took employees to put on and take off protective gear.

Many of the class members were fully compensated and had no FLSA injury, yet they were included in the class and were set to receive additional wages under the aggregate award.

The amici brief urges the Supreme Court to set a bright-line rule against the inclusion of uninjured class members. Individuals with no injuries have no claim, under both substantive law and Article III standing, and the brief explains that the class action mechanism is not to be “manipulated in ways that convert deficient claims into viable ones. A plaintiff without an injury cannot be permitted to hide among those who may …. The class action short cut works only when it leads to the same place as individually filed claims.”

Finally, the brief discusses the development of “no injury” class actions, as demonstrated in recent product manufacturing, product labeling and data privacy class actions.

Goldberg and Silverman, who are both members of Shook’s Public Policy Group, filed the amici brief on behalf of the National Association of Manufacturers, Alliance of Automobile Manufacturers, Association of Home Appliance Manufacturers, American Tort Reform Association, American Petroleum Institute and Metals Service Center Institute. Shook’s National Amicus Practice files more than 30 amicus briefs each year in federal and state courts.

Shook’s National Amicus Practice publishes a State Supreme Court Watch bi-weekly, tracking cases decided and granted review in many state supreme courts around the country on a wide variety of business and liability related issues. To sign up to receive the State Supreme Court Watch, contact Phil Goldberg at