The Supreme Court agreed to hear arguments on two distinct questions in the case. The first was whether a class could proceed when there are some differences in the class members that will be handled using statistical techniques for liability and damages determinations. The second was whether a class could proceed when there are class members who are not injured at all, in this case because the statistical analysis revealed that they were not owed overtime after the time to put on and take off gear was added to their recorded hours.

Turning to the first question, Justice Breyer set up a hypothetical to explain how a statistical analysis might provide a very good estimate for information that was not recorded. When Tyson’s attorney pivoted to the second question of uninjured class members, Justice Breyer continued with the same hypothetical to demonstrate the problem with requiring proof of injury of all class members before a class can be certified.

Later, Justice Sotomayor asked Elizabeth Prelogar, representing the United States in support of the employees, about the uninjured class members. Prelogar explained that there were many options for how they might have been taken out of the case earlier in the proceeding and might still be precluded from sharing in the back-pay that was awarded. Most importantly, she explained, the inclusion of uninjured class members up to this point in the litigation is not a flaw of the class action mechanism.