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SCOTUS Review: Tyson v. Bouaphakeo

(298 reviews)

Produced on September 19, 2016

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$ 89 Constitutional and Labor & Employment In Stock
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Course Information

Time 1h
Difficulty Advanced
Topics covered in this course: Constitutional Labor & Employment

Course Description

The Supreme Court’s taking of Tyson Foods v. Bouaphakeo this term presented much-awaited questions as to the scope and permissibility of class actions in federal courts. Particularly watched were how the Court would address the propriety of statistical sampling in class actions to establish liability or damages and whether a class action can be certified when some class members may not have been damaged. To many, the case was considered the natural follow-on to the Supreme Court’s Comcast and Dukes decisions that had limited the scope of overbroad cases and demanded stricter ties between liability and damages.

The Tyson Foods decision itself was striking and has important ramifications for both the defense and prosecution of class – and also Fair Labor Standards Act collective – actions. The majority affirmed the use of statistical evidence to prove liability and damages, but in doing so placed substantial weight on the evidentiary soundness of such evidence. But the decision left open many future questions, including the issue of undamaged class members, and it left open the possible return of the case to the Supreme Court itself. To practitioners, the decision creates new challenges both in prosecuting and defending any kind of aggregate action. It also has specific teachings for Fair Labor Standards Act cases. 

Learning Objectives:

  1. Examine the nature of the case within the context of Comcast and Dukes
  2. Understand the decision and what questions remain, especially the implications of the decision for class and collective actions
  3. Obtain tips and suggestions as to Tyson Food’s practical implications for litigating cases from both plaintiffs’ and defense perspectives

Credit Information

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Seth Lesser

Klafter Olsen & Lesser LLP

Seth Lesser is a named partner at Klafter Olsen & Lesser LLP, and a recognized class action practitioner who has prosecuted cases in a particularly wide variety of contexts – securities, consumer, employment, civil rights and privacy – from MDLs to substantial state and federal cases. Mr. Lesser is a graduate of Princeton University, A.B., summa cum laude (1983); Oxford University, D.Phil. in Modern History, recipient of a Marshall Scholarship (1985); and Harvard Law School, J.D., magna cum laude, where he was an editor of the HARVARD JOURNAL OF INTERNATIONAL LAW and of the HARVARD ENVIRONMENTAL LAW REVIEW. In addition, he was the coxswain of the victorious Oxford Blue Boat in the Oxford-Cambridge Boat Race in 1984 & 1985.

Mr. Lesser primarily represents businesses and individuals in complex contingency fee matters, including as plaintiffs in individual, class and collective actions. He has been the lead plaintiffs’ counsel in cases across the country in the areas of securities claims, consumer fraud, privacy violations, employment law, and breach of duty cases.

The cases where he personally has served as a sole lead or co-lead plaintiffs’ counsel have settled for more than $500 million. In addition to many class actions where he was lead plaintiffs’ counsel but which cases were not Federal Multidistrict Litigation proceedings, the MDLs where he has served as lead counsel have including, among others, MDL-1346 (In re Amazon-Alexa); MDL-1352 (In re Doubleclick); MDL-1708 (In re Guidant Implantable Heart Devices); MDL-1739 (In re Grand Theft Auto Video Game Consumer Litigation); MDL-1903 (In re Pepsico, Inc. Bottled Water Sales Practices); MDL-2025 (In re Staples, Inc. Wage & Hour Employment Practices Litig.). He has also served on numerous MDL Executive/Steering Committees, including the Executive Committee in MDL-1845 (ConAgra Peanut Butter Products Liability Litigation), and serving as Law & Briefing Co-Chair of the Government Actions Committee in MDL-1657 (Vioxx Products Liability Litigation). Among other things, he was the lead New York class counsel in the Fen/Phen diet drug litigation and in that case obtained the first certification under New York law for a medical monitoring class, and was the New York class counsel in the settlement with American Home Products. In 2009, as part of his active representation of employees denied payment of overtime wages, he successfully tried to a verdict one of the first Fair Labor Standards misclassification cases ever taken to a jury, resulting in a judgment of $5 million on behalf of 342 collective action plaintiffs, Stillman v. Staples, Inc., No. 07-cv-849 (D.N.J.), a result which has led to the $42 million nationwide settlement of MDL-2025.

Mr. Lesser was the National Association of Consumer Advocates’ Attorney of the Year in 2005 and is presently Co-Chair of the Board of Directors of that organization. From 1998 through 2001, he served as the representative of the American Council on Consumer Interests to the United Nations. At present, he is on the Second Circuit Courts Committee of the Federal Bar Council and is active in the Members Consultative Group of the American Law Institute’s Restatement of the Law Third, Restitution and Unjust Enrichment project. In the recent past he was on the Amicus Committee of the American Association for Justice, was the Co-Chair of the Food-Borne Illness Litigation Group of the American Association for Justice. He is a member of, inter alia, the American Law Institute; the American Bar Association; the Second Circuit Federal Bar Council; the Bar Association of the City of New York; the National Association of Consumer Advocates; the American Association for Justice; and the National Employment Lawyers Association.

Other professional organizational appointments have included being the Chair of American Bar Association’s Business Law Section’s Environmental Litigation Subcommittee (1995-2002); the Co-Chair of the ABA’s Business Law Section’s Annual Review of Litigation (1995-1998); a member of the New York City Bar Association’s Committees on Consumer Affairs (1995-1998) and Federal Courts (1998-2001); a member of the Federal Bar Council’s Second Circuit Courts Committee (2006 to date) and Co-Chair of the American Association for Justice’s Food-borne Illness Litigation Group (2007-2010). He also was the Chair of the National Association of Securities and Consumer Attorneys’ Consumer Committee from 2003 to 2005. He was asked to draft revisions to New York State’s class action law (2002-2003; Report, 2003), as well as having been involved in the drafting of numerous recommendations, testimony, reports, and other materials for various professional organizations. His election to the American Law Institute was in 2008 and he actively participated in the Members Consultative Group to the ALI’s 2009 adoption of the Principles of Aggregate Litigation. In addition, Mr. Lesser has been on the Editorial Advisory Board of the Class Action Law Monitor.

Mr. Lesser has been repeatedly chosen as a Superlawyer (2008 to date), both as a Superlawyer in the New York Metropolitan Area in the area of class actions and also as one of the 25 best attorneys in Westchester County, N.Y. (2011-2012).

Prior to joining KOL in 2008, he was a partner at two plaintiffs-oriented law firms, Bernstein Litowitz Berger & Grossmann and Locks Law Firm


Caroline B.

Very good presentation. Love this guy - he’s fun to watch.

judith c.

Good overview and introduction

Nanette C.

Excellent. Sophisticated analysis, well beyond the 'summary of the case' approach, many intriguing insights (strategies, predictions).

Cynthia Coulter M.

The case is about wage and labor law and statistical sampling. It was an interesting presentation.

Corey E.

Thank you

Susan T.

Enthusiastic presenter Kept my attention

Michael R.

A fantastic presentation. Very much enjoyed listening to this.

Johanna T.

Great recap - as always!

Eugene A C.

Presenter was effective in giving a concise review of the case.

Penny W.

Interesting discussion of pragmatism in the Supreme Court rulings.

Richard M.

Very interesting. Well presented.

Thomas C.

Presenter was excellent and I'd look for other programs he has done and take them whether or not they were really within an area of practice concentration for me.

Colleen K.

Excellent presentation.

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