Whether Tyson sanctions the use of statistical surveys to establish commonality and predominance for a wage-and-hour class that encompasses different kinds of employees performing different kinds of work for different employers at different worksites under different compensation terms

QUESTIONS PRESENTED This sprawling class proceeding involves multiple classes covering thousands of minor-league baseball players who played at different positions for dozens of affiliates across 30 Major League Clubs who were paid under different compensation terms. Under the clear teaching of cases like Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the thousands of disparate individual actions encompassed by these proceedings cannot be shoehorned into a class action for a “trial by formula” that would look nothing like a class member's individual trial. Nonetheless, the Ninth Circuit certified these sprawling (b)(3) classes by reading this Court’s decision in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), to create what amounts to a wage-and-hour exception to Wal-Mart. The court then exacerbated that error by reversing the district court’s refusal to certify a (b)(2) class as not cohesive—not by disagreeing with the district court’s judgment, but by expressly discarding the cohesiveness requirement that every other circuit to consider the question has derived from Wal-Mart. The questions presented are: 1. Whether Tyson sanctions the use of statistical surveys to establish commonality and predominance for a wage-and-hour class that encompasses different kinds of employees performing different kinds of work for different employers at different worksites under different compensation terms. 2. Whether cohesiveness is required for class certification under Rule 23(b)(2).