Tyson Foods 2009 Annual Report Download - page 77

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In addition to DeAsencio, several additional private lawsuits were filed against us since the beginning of fiscal 2007 which allege we
failed to compensate poultry plant employees for all hours worked, including overtime compensation, in violation of the
FLSA. These lawsuits are Sheila Ackles, et al. v. Tyson Foods, Inc. (N. Dist. Alabama, October 23, 2006); McCluster, et al. v. Tyson
Foods, Inc. (M. Dist. Georgia, December 11, 2006); Dobbins, et al. v. Tyson Chicken, Inc., et al. (N. Dist. Alabama, December 21,
2006); Buchanan, et al. v. Tyson Chicken, Inc., et al. and Potter, et al. v. Tyson Chicken, Inc., et al. (N. Dist. Alabama, December 22,
2006); Jones, et al. v. Tyson Foods, Inc., et al., Walton, et al. v. Tyson Foods, Inc., et al. and Williams, et al. v. Tyson Foods, Inc., et
al. (S. Dist. Mississippi, February 9, 2007); Balch, et al. v. Tyson Foods, Inc. (E. Dist. Oklahoma, March 1, 2007); Adams, et al. v.
Tyson Foods, Inc. (W. Dist. Arkansas, March 2, 2007); Atkins, et al. v. Tyson Foods, Inc. (M. Dist. Georgia, March 5, 2007); and
Laney, et al. v. Tyson Foods, Inc. and Williams, et al. v. Tyson Foods, Inc. (M. Dist. Georgia, May 23, 2007). Similar to DeAsencio,
each of these matters involves allegations employees should be paid for the time it takes to engage in pre- and post-shift activities
such as changing into and out of protective and sanitary clothing, obtaining clothing and walking to and from the changing area, work
areas and break areas. The plaintiffs in each of these lawsuits seek or have sought to act as class representatives on behalf of all
current and former employees who were allegedly not paid for time worked and seek back wages, liquidated damages, pre- and
post-judgment interest, and attorneys’ fees. On April 6, 2007, we filed a motion for transfer of the above named actions for
coordinated pretrial proceedings before the Judicial Panel on Multidistrict Litigation. The motion for transfer was granted on August
17, 2007. The cases listed above and five other cases subsequently filed involving the same allegations, Armstrong, et al. v. Tyson
Foods, Inc. (W. Dist. Tennessee, January 30, 2008); Maldonado, et al. v. Tyson Foods, Inc. (E. Dist. Tennessee, January 31, 2008);
White, et al. v. Tyson Foods, Inc. (E. Dist. Texas, February 1, 2008); Meyer, et al. v. Tyson Foods, Inc. (W. Dist. Missouri, February
2, 2008); and Leak, et al. v. Tyson Foods, Inc. (W. Dist. North Carolina, February 6, 2008), were transferred to the U.S. District Court
in the Middle District of Georgia, In re: Tyson Foods, Inc., Fair Labor Standards Act Litigation (“MDL Proceedings”). On January 2,
2008, the Judge in the MDL Proceedings issued a Joint Scheduling and Case Management Order. The Order granted Conditional
Class Certification and called for notice to be given to potential putative class members via a third party administrator. The potential
class members had until April 18, 2008, to “opt–in” to the class. Approximately 13,800 employees and former employees filed their
consents to “opt-in” to the class. On October 15, 2008, the Judge in the MDL Proceedings denied the plaintiffs’ motion for equitable
tolling, which, if granted, would have extended the time period in which the plaintiffs could have sought damages. However, in
addition to the consents already obtained, the Court allowed plaintiffs to obtain corrected and reaffirmed opt-in consents that were
previously filed in the matter of M.H. Fox, et al. v. Tyson Foods, Inc. (N. Dist. Alabama, June 22, 1999). The deadline for filing these
consents was December 31, 2008, and according to the third party administrator, approximately 4,000 reaffirmed consents were filed,
some or all of which may be in addition to the approximately 13,800 consents filed previously. The parties have completed discovery
at eight of our facilities and our corporate headquarters in Springdale, Arkansas. Discovery may be conducted at additional facilities
in the future. We have filed class decertification motions for the eight facilities involved in discovery. We have also filed Motions for
Partial Summary Judgment for these eight facilities, and the parties have completed briefing. The parties have requested oral
arguments to further present their respective positions on these issues. If oral argument is granted, we anticipate that it will occur in
December 2009.
We have pending eleven separate wage and hour actions involving TFM’s plants located in Lexington, Nebraska (Lopez, et al. v.
Tyson Foods, Inc., District of Nebraska, June 30, 2006), Garden City and Emporia, Kansas (Garcia, et al. v. Tyson Foods, Inc., Tyson
Fresh Meats, Inc., District of Kansas, May 15, 2006), Storm Lake, Iowa (Bouaphakeo (f/k/a Sharp), et al. v. Tyson Foods, Inc., N.D.
Iowa, February 6, 2007), Columbus Junction, Iowa (Robinson, et al. v. Tyson Foods, Inc., d/b/a Tyson Fresh Meats, Inc., S.D. Iowa,
September 12, 2007) , Joslin, Illinois (Murray, et al. v. Tyson Foods, Inc., C.D. Illinois, January 2, 2008), Dakota City, Nebraska
(Gomez, et al. v. Tyson Foods, Inc., District of Nebraska, January 16, 2008), Madison, Nebraska (Acosta, et al. v Tyson Foods, Inc.
d.b.a Tyson Fresh Meats, Inc., District of Nebraska, February 29, 2008), Perry and Waterloo, Iowa (Edwards, et al. v. Tyson Foods,
Inc. d.b.a Tyson Fresh Meats, Inc., S.D. Iowa, March 20, 2008); Council Bluffs, Iowa (Maxwell (f/k/a Salazar), et al. v. Tyson Foods,
Inc. d.b.a. Tyson Fresh Meats, Inc., S.D. Iowa, April 29, 2008; Logansport, Indiana (Carter, et al. v. Tyson Foods, Inc. and Tyson
Fresh Meats, Inc., N.D. Indiana, April 29, 2008); and Goodlettsville, Tennessee (Abadeer v. Tyson Foods, Inc., and Tyson Fresh
Meats, Inc., M.D. Tennessee, February 6, 2009). The actions allege we failed to pay employees for all hours worked, including
overtime compensation for the time it takes to change into protective work uniforms, safety equipment and other sanitary and
protective clothing worn by employees, and for walking to and from the changing area, work areas and break areas in violation of the
FLSA and analogous state laws. The plaintiffs seek back wages, liquidated damages, pre- and post-judgment interest, attorneys’ fees
and costs. Each case is proceeding in its jurisdiction.
On June 19, 2005, the Attorney General and the Secretary of the Environment of the State of Oklahoma filed a complaint in the U.S.
District Court for the Northern District of Oklahoma against us, three of our subsidiaries and six other poultry integrators. This
complaint was subsequently amended. As amended, the complaint asserts a number of state and federal causes of action including,
but not limited to, counts under Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), Resource
Conservation and Recovery Act (“RCRA”), and state-law public nuisance theories. The amended complaint asserts that defendants
and certain contract growers who are not named in the amended complaint polluted the surface waters, groundwater and associated
drinking water supplies of the Illinois River Watershed (“IRW”) through the land application of poultry litter. Oklahoma asserts that
this alleged pollution has also caused extensive injury to the environment (including soils and sediments) of the IRW and that the
defendants have been unjustly enriched. Oklahoma's claims cover the entire IRW, which encompasses more than one million acres of