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Brian Rochel Moderates Panel on Proving Damages at Employment Law Institute

On May 21, 2018, Teske Katz Kitzer & Rochel partner Brian Rochel presented a continuing legal education seminar to his peers at the Upper Midwest Employment Law Institute. The Employment Law Institute, billed as “the Nation’s best employment law conference,” is a program that attracted approximately 1,400 lawyers and employment law professionals. Rochel, together with his co-panelists Anna Prakash, Sheila Engelmeier and Kaarin Nelson Schafer, presented a session entitled “What’s the Harm? – Evaluating and Proving Damages.” The discussion focused on methods of proving damages in trial of employment law claims, as well as presenting damages in settlement and pre-litigation contexts.

Teske Katz Kitzer & Rochel’s attorneys regularly practice employment law on behalf of employees. If you have questions about employment law, or would like to learn more about damages and remedies available to employees, contact us today.

Supreme Court OKs Use of Averages and Statistical Analyses to Assess Class-Wide Injury

The Supreme Court ruled today in Tyson Foods, Inc. v. Bouaphakeo, one of several major class action cases that are being decided in the Court’s current term. The issue in this case was whether differences among individual class members may be ignored and a class certified under the Federal Rules of Civil Procedure (or a collective action certified under the Fair Labor Standards Act), where liability and damages are determined with statistical techniques that presume all class members are identical to the average observed in a sample. A second issue facing the Court was whether a class action may be certified or maintained when the class contains hundreds of members who were not injured and have no legal right to any damages.

In a 6-2 win for class actions, Justice Kennedy, writing for the Court’s majority, held that “This case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions.” The court did not, however, decide the second issue as to whether a class can be certified where not every member has suffered damages. It said, “That question is not yet fairly presented by this case.”

Overall, this is a great result for the long-term viability of class action litigation, since the majority of class action cases are made up of class members who have varying individual damages. Statistical samples taken to determine average damages incurred per class member are commonplace, particularly in cases where there are tens of thousands, or hundreds of thousands, of class members. Today’s decision upholds the long-held notion in class action jurisprudence that class cases are maintainable, even when damages incurred by individual class members are not identical.