Tyson Foods 2011 Annual Report Download - page 73

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We have pending twelve separate wage and hour actions involving Tyson Fresh Meats Inc.’s plants located in Lexington, Nebraska
(Lopez, et al. v. Tyson Foods, Inc., D. Nebraska, June 30, 2006), Garden City and Emporia, Kansas (Garcia, et al. v. Tyson Foods,
Inc., Tyson Fresh Meats, Inc., D. 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 (Guyton (f/k/a 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; and
DeVoss v. Tyson Foods, Inc. d.b.a. Tyson Fresh Meats, C.D. Illinois, March 2, 2011), Dakota City, Nebraska (Gomez, et al. v. Tyson
Foods, Inc., D. Nebraska, January 16, 2008), Madison, Nebraska (Acosta, et al. v Tyson Foods, Inc. d.b.a Tyson Fresh Meats, Inc., D.
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.
x After a trial in the Garcia case, a jury verdict in favor of the plaintiffs was entered on March 17, 2011, with respect to the
Garden City, Kansas facility. Exclusive of pre- and post-judgment interest, attorneys’ fees and costs, the jury found violations
of federal and state laws for pre- and post-shift work activities and awarded damages in the amount of $503,011, respectively.
Plaintiffs’ counsel has filed an application for attorneys’ fees and expenses in the amount of $3,475,422. We contested the
application and are currently evaluating our appeal options.
x A jury trial was held in the Lopez case, which involved the Lexington, NE beef plant, and resulted in a jury verdict in favor
of Tyson. Judgment was entered and the complaint was dismissed with prejudice, on May 26, 2011. Plaintiffs filed an appeal
with the Eighth Circuit Court of Appeals on June 16, 2011.
x A jury trial was held in the Bouaphakeo case, which involved the Storm Lake, Iowa pork plant and resulted in a jury verdict
in favor of the plaintiffs on September 26, 2011. Exclusive of pre- and post-judgment interest, attorneys’ fees and costs, the
jury found violations of federal and state laws for pre- and post-shift work activities and awarded damages in the amount of
$2,892,379. On October 24, 2011, we renewed our motion for judgment as a matter of law due to a failure of class-wide
proof and, in the alternative, for a new trial on damages.
x The Guyton, Gomez and Acosta cases are scheduled for trials on April 9, 2012, October 15, 2012, and November 13, 2012,
respectively.
We have pending one wage and hour action involving our Tyson Prepared Foods plant located in Jefferson, Wisconsin (Weissman, et
al. v. Tyson Prepared Foods, Inc., Jefferson County (Wisconsin) Circuit Court, October 20, 2010). The plaintiffs allege that 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 and the associated time it takes to walk to and from their workstations post-donning and pre-doffing of protective and sanitary
clothing. Six named plaintiffs seek to act as state law 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 and
costs. On May 16, 2011, Plaintiffs filed a motion to certify a state law class of all hourly employees who have worked at the Jefferson
plant from October 20, 2008, to the present. We have filed motions for summary judgment seeking dismissal of the claims, or, in the
alternative, to limit the claims made for non-compensable clothes changing activities.
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
land and the natural resources (including lakes and waterways) contained therein. Oklahoma seeks wide-ranging relief, including
injunctive relief, compensatory damages in excess of $800 million, an unspecified amount in punitive damages and attorneys’ fees.