The Supreme Court’s decision to allow the use of “representative evidence” in Tyson Foods, Inc. v. Bouaphakeo provides guidance when challenging expert testimony. On March 22, 2016, the United States Supreme Court rejected Tyson Foods, Inc.’s (“Tyson”) request to reverse a $2.6 million judgment entered against it. In the underlying case, hourly employees working in Tyson’s pork processing plant in Storm Lake, Iowa filed a class action lawsuit alleging that Tyson failed to pay them overtime for time spent donning and doffing protective equipment necessary to perform their jobs. Given the plaintiffs’ allegations, each employee was required to show that he or she worked more than 40 hours a week, including the time donning and doffing protective equipment, in order to recover against Tyson. In order to meet this burden, the plaintiffs offered testimony by their expert witness, who conducted 744 videotaped observations and concluded that it took one set of employees an average of 18 minutes to don and doff their protective gear and a second set of employees an average of 21 minutes to don and doff their protective gear. The plaintiffs moved to certify a class of more than 3,300 employees who had allegedly been underpaid by Tyson as a result of the required donning and doffing activities. Tyson objected to the motion, arguing that the differences in protective gear each plaintiff was required to wear made the case inappropriate to proceed as a class action. The trial court rejected Tyson’s argument and certified the class. At trial, Tyson made the same argument to the jury. That is, the varying amounts of time it took employees to don and doff different protective gear made the lawsuit too speculative for classwide recovery. Tyson
By Kerry Curry Special Contributing Writer for The Texas Lawbook February 14, 2014 – It’s been 20 years since Fred Bartlit and Philip Beck turned the typical law firm structure on its head and opened a firm that shunned the billable hour. Today, Bartlit remains revered for championing innovative price structuring in complex, high-stakes litigation, bringing national prominence to a firm that refuses to bill by the hour. But much time has passed, and Bartlit remains the exception, not the rule. While alternative fee arrangements have gained staying power, they show no evidence of overtaking the billable hour. Fred Bartlit “When we started in 1993, we felt we had a five-year window before our competition followed our innovation,” Bartlit said of his Denver/Chicago alternative fee law firm, Bartlit Beck Herman Palenchar & Scott LLP. “We were wrong.” Christopher Catapano, president of Bridgesphere, believes alternative fees have staying power and growth potential. The San Francisco-based consultant focuses on improving law firm financial performance. “Industry acceptance as to whether alternative fee arrangements are here to stay is — in some minds — still up for debate,” he said. “But I think if you look at the legal services industry and compare it to any well-developed industry in the United States, alternative fee arrangements are more than likely here to stay and more than likely a long-term reality that law firms will have to wrestle with.” The reasons are multifaceted. The legal industry has become more commoditized with lower barriers to entry and more standardized pricing, for example. In addition, during the Great Recession, corporations — especially large publically traded companies — took a fine-toothed comb to legal expenses, looking for ways to reduce costs. That scrutiny continues today. In some instances,
Bailey Brauer Counsel Ben Stewart joined KLIF-AM’s Kurt Gilchrist to discuss the local lawsuit pitting Snuffer’s Restaurants, Inc., against Pat Snuffer, who lost control of the Snuffer’s name after Snuffer’s Restaurants filed for bankruptcy earlier this year. Mr. Snuffer planned to open a new Snuffer’s in the original lower Greenville Ave. location, but the new owner of Snuffer’s Restaurants, Firebird Restaurant Group, demanded that Mr. Snuffer stop using the Snuffer’s name. In an apparent attempt to comply with the demand, Mr. Snuffer changed the name of his new restaurant to Pat’s Burgers & Cheddar Fries. Snuffer’s Restaurants then filed suit and obtained a temporary restraining order against Mr. Snuffer to prevent Pat’s from opening. The plaintiffs’ biggest challenge is likely to be its trademark and trade dress violation claims, Mr. Stewart said. “The Snuffer’s brand isn’t as well-known as some of the others,” he explained, referencing McDonald’s Golden Arches and the brown background and distinctive blue font on a Snickers candy bar wrapper. “You know what a McDonald’s looks like. When you drive past those arches, you know . . . Snuffer’s hasn’t reached that level.” Neither Mr. Stewart nor Bailey Brauer PLLC are involved in the Snuffer’s litigation.
DALLAS – Bailey Brauer PLLC, a complex commercial litigation and appellate boutique, is pleased to announce that Benjamin L. Stewart has joined the firm as Counsel. Mr. Stewart represents corporate clients and individuals in complex commercial and bankruptcy litigation matters. He has successfully litigated cases in federal courts in Texas, Colorado and Delaware and in state courts throughout Texas. Mr. Stewart has also assisted companies with internal and government investigations, including responding to civil investigative demands from the U.S. Securities and Exchange Commission and the U.S. Commodity Futures Trading Commission. “Ben brings experience and skills far beyond his years,” says Bailey Brauer co-founder Alex Brauer. “He has the creativity and depth of expertise our clients need, and we’re excited to have him join us.” Mr. Brauer and Mr. Stewart met in 2008, when a client they both represented filed for bankruptcy. Mr. Stewart’s firm at the time, Weil Gotshal & Manges, served as bankruptcy counsel. “We found ourselves together in court on that matter quite a few times, and it became clear that we wanted to work with Ben again,” says Bailey Brauer co-founder Clayton Bailey. “We’ve kept in touch over the years, and now is the perfect time for him to come on-board.” Mr. Stewart is a member of the Federal Bar Association and serves on the Publications Committee of the Younger Lawyers Division of the FBA. He is also a member of the Texas Bar Foundation and volunteers with Texas Lawyers for Texas Veterans. Mr. Stewart received a Bachelor of Arts in 2001 from East Texas Baptist University. He earned his law degree in 2004 from Columbia Law School, where he was a Harlan Fiske Stone Scholar and served as a moot court
What new GIPSA regulations mean for poultry industry Clayton Bailey discusses the new Grain Inspection, Packers & Stockyards Administration (GIPSA) final rules for 2013; both the feed weighing and scaling provisions and the ruling that pullets and breeders are now out of the scope of GIPSA regulations. Bailey is a partner in the Dallas law firm of Bailey Brauer PLLC. 2013-09-18
Law360, New York (July 19, 2013, 9:58 AM ET) -- A partner at Bailey Brauer PLLC, Clayton E. Bailey relies on his 17 years of trial experience to guide clients in complex commercial litigation and appeals, and provide customized expertise to clients in the agribusiness industry. Renowned for his candid, plain-spoken advice, Clayton Bailey has litigated, tried and appealed cases involving contract disputes, business torts, RICO, ERISA, employment law, trade secrets, deceptive trade practices, fraud, breach of fiduciary duty, antitrust and wrongful death, and has successfully defended against putative class actions. His work on a Packers and Stockyards Act case not only benefitted his client, but also resulted in an influential appellate ruling that cemented the law protecting the entire agribusiness industry. A member of the Litigation Counsel of America and the Trial Law Institute, Bailey has been selected numerous times for inclusion in Texas Super Lawyers and was highlighted as the “Appellate Lawyer of the Week” by Texas Lawyer for his work as lead appellate counsel in a case before the U.S. Court of Appeals for the Fifth Circuit. Previously, Bailey was a partner at Baker & McKenzie, where he was the leader of the Dallas office’s litigation section. He graduated with honors from SMU Dedman School of Law. Q: How did you become a rainmaker? It boils down to satisfaction, success and security. Satisfaction: I enjoy being around people, and I love helping them resolve problems they had assumed were unresolvable. I also enjoy the point in every process when you have mastered a topic and are then able to transfer into a “creative” stage, developing new ideas that advance an issue to a new level. Rainmaking allows me to be around people and be creative. Whether it’s networking at an event, having a meal or drink with