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Class Certification Case Law Updates – Anti-trust/Competition Law – United States

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The past year has seen several cases delve into the role that
both representative evidence and uninjured class members play in
determining whether predominance has been satisfied within the
broader class certification GFN. In this installment of client
alerts focused on class certification, we discuss some of the
noteworthy developments within these cases below.

Representative Evidence-or the Lack Thereof

Several recent cases have reconsidered the role of
representative evidence in their class certification analyses, and
in what circumstances it is sufficient to show predominance. Most
notably, the Third Circuit in In re: Lamictal Direct Purchaser
Antitrust Litigation
1 strongly affirmed the rule that
outside of a Fair Labor Standards Act case (such as in Tyson
Foods
2) where representative evidence is
the only way to show liability, plaintiffs must still demonstrate
that their claims are capable of common proof at trial by a
preponderance of the evidence. Some background first:

Tyson Foods. In 2016, the
Supreme Court held in Tyson Foods that the plaintiffs were
permitted to use a representative study to show that the class
members in an FLSA action had worked over forty hours per week
without being properly compensated for that time. There, the
defendant-employer did not record (or compensate for) the time pork
processing plant employees spent donning and doffing protective
gear.3 As a result, the employees had to
rely on representative evidence, such as employee statements, video
recordings of gearing up and gearing down, and an expert study to
demonstrate the amount of time for which they were uncompensated.4 In
evaluating whether this evidence could be used to satisfy the
predominance requirement of class certification, the Supreme Court
noted that the district court could have denied class certification
for lack of predominance “only if it concluded that no
reasonable juror could have believed that the employees spent
roughly equal time donning and doffing” their equipment once
such evidence was ruled admissible.5 However, the Court expressly
declined to issue a “broad and categorical rule”
governing the use of representative evidence, explaining that
determinations on whether a representative sample could be used to
establish class wide liability would depend on the purpose and the
underlying cause of action.6

Lamictal. On April 22, 2020, the Third Circuit
clarified that the “no-reasonable-juror” evidentiary
standard described in Tyson Foods is unique to the context
of an FLSA claim in In re: Lamictal Direct Purchaser Antitrust
Litigation
.7 The GFN highlights that class
action plaintiffs outside of the FLSA context of Tyson
Foods
must still show, by a preponderance of the evidence,
that they can establish class-wide injury through common proof at
trial.

The claim at issue in Lamictal is an antitrust claim
known as a “pay-for-delay.” Plaintiffs, a class of
purchasers of the epilepsy drug lamotrigine, alleged that a patent
litigation settlement between manufacturers of the brand name and
generic versions of lamotrigine, GSK and Teva respectively,
unlawfully incentivized Teva to delay the launch of its generic
version.8 The plaintiffs further alleged that,
as a result, consumers were charged artificially high prices for
brand Lamictal and moved to certify a class of all companies that
purchased brand Lamictal directly from GSK or generic lamotrigine
from Teva, on the basis that, “on average, the price of a
generic is lower when there are two generics rather than just
one.”9 GSK and Teva challenged
certification only as to the class members who purchased generic
lamotrigine from Teva.10 Following the district court’s
decision to certify the class, GSK and Teva appealed.

In their appeal, the plaintiffs contended that they did need not
prove antitrust injury at the certification stage to meet
predominance requirements, but merely had to establish that injury
is capable of common proof at trial.11 They further
contended, based on a comment in Tyson Foods, that such
predominance is established unless no reasonable juror could
believe the common proof at trial12 and that, so long as their
evidence of class-wide antitrust injury could survive a jury
finding, they had met the predominance requirement.13

The appeals court disagreed with the plaintiffs and stated,
“contrary to the Direct Purchasers’ assertion, Tysons
Foods
does not control our case, and its no-reasonable-juror
statement certainly does not overturn our longstanding rule
announced in Hydrogen Peroxide” that district courts
are required to resolve factual determinations by a preponderance
of the evidence at the class certification stage.14

The Lamictal court distinguished the case before it
from Tyson Foods by noting that FLSA cases are unique
because often-due to inadequate record-keeping-a
“representative sample [of employees] may be the only feasible
way to establish liability.”15 The Third Circuit further
distinguished Tyson Foods because there, the court was
asked to, but declined to, decertify a class after the
jury had rendered a verdict in favor of the plaintiffs, whereas the
district court in the Lamictal litigation reviewed the
class certification motion “on a blank slate.”16

Accordingly, the appeals court vacated the class certification
decision because the district court accepted plaintiff’s
proposed common proof that relied on averaging, without a rigorous
GFN. The appeals court noted that inquiry was needed into
whether the market was “characterized by individual
negotiations and a discounted-brand competition strategy,”
which could mean that using averages would mask the fact that maybe
plaintiffs suffered no overcharge.17 The appeals court
conceded that “averages may be acceptable where they do not
mask individualized injury,” but held that it was impossible
to know whether the averaging was acceptable here absent further
GFN into the potential pricing strategies in the but-for world
and a more rigorous GFN of the experts’ competing-and
conflicting-evidentiary sources.18 The certification was vacated and
remanded.

Ferreras. Even in the context of FLSA
cases, Tyson continues to undergo examination and
refinement at the district and intermediate appellate court level.
In another recent Third Circuit case, Ferreras v.
American Airlines, Inc.,19 the Third Circuit reversed
certification of three subclasses because the classes could not
establish commonality or predominance.

The district court certified three subclasses of airline
employees who alleged that defendant American’s Newark Liberty
International Airport station failed to compensate them for all
their time spent clocked in to work. American’s timekeeping
system was programmed to calculate pay for employees only for the
duration of their assigned shifts, less an automatically deducted
thirty-minute meal break.20 Plaintiffs, however, alleged that
because they often worked for periods that the timekeeping system
did not account for, they should be compensated for all of their
time, including: (1) time clocked in but which was pre- and post-
their scheduled shift times; (2) scheduled meal breaks; and (3)
time spent working but off-the-clock.21

The district court, relying on Tyson Foods, concluded
that individualized variations between workers would not defeat
class certification.22 In the court’s view,
plaintiffs met the Rule 23(b) commonality and predominance
requirements because all plaintiffs shared questions of (1) whether
they were not, in fact, compensated for their total hours reflected
by the timekeeping system; and (2) whether they were discouraged
from seeking an exception to allow them to be paid for time outside
of their shift.23

The Third Circuit reversed, holding that the district court had
erred in both its commonality and predominance analyses.

Commonality: The Third Circuit held that the district
court erred in finding commonality by accepting that common
questions existed, but not considering whether “a
class-wide proceeding [could] generate common answers apt
to drive the resolution of the litigation” and whether common
issues “are more prevalent or important than the non-common,
aggregation-defeating, individual issues.”24 Regardless of any
common evidence about American’s timekeeping system or their
overtime policy, plaintiffs still needed to prove that each
individual employee worked uncompensated overtime.25 Further, despite
the evidence that only one subset of employees suffered from a
policy of not paying employees submitting requests for overtime,
the district court still certified subclasses consisting of
all hourly employees.26 Because there was evidence in the
record that not all employees worked during all meal breaks, and no
easy measure-like time clock records-by which to compute the extent
to which any particular employee worked off the clock existed, the
individualized evidence needed to prove both claims defeated any
commonality among the class.27

Predominance: The appeals court noted that because the
plaintiffs failed the commonality requirement, they automatically
failed the more challenging predominance requirement as well.28
The Third Circuit also made a point of distinguishing
Ferreras from Tyson Foods for purposes of
predominance, noting that in Tyson Foods, the issue was
how to compensate plaintiffs for the varied amount of time it took
them to participate in the same act of putting on and
removing their protective equipment.29 In
Ferreras, it was unclear whether the employees were
working during the claimed uncompensated time and there was also
variability in the acts plaintiffs performed during that time. As a
result, the Third Circuit disagreed with the district court’s
reliance on Tyson Foods and found that representative
evidence was insufficient to prove the Ferreras
plaintiffs’ case.30

Ridgeway. The Ninth Circuit also
recently considered what constitutes a representative sample in
another FLSA case in Ridgeway v. Walmart Inc.31 In
Ridgeway, long-haul truckers alleged that Wal-Mart was
violating state meal and rest break laws, and that, as a result of
Wal-Mart’s payment practices failing to account for time spent
on required rest breaks and layovers, it failed to pay drivers
minimum wage.32 A jury found for the plaintiffs,
and Wal-Mart appealed, arguing that the district court erred in
certifying the class, and in awarding damages to plaintiffs based
on layovers, rest breaks and inspections.33

In its review of the class certification and damages GFN of
the trial court, the Ninth Circuit agreed with the district court
finding that common issues predominated. Rejecting Wal-Mart’s
argument that the plaintiffs could not use representative evidence
to prove the elements of their case, the appeals court held that
liability was suitable for class treatment on the basis of
substantial supporting evidence showing that Wal-Mart owed class
members minimum payment during layovers.34 And once the jury
found that minimum wages were owed, the varying amount of time
spent on each task “went to the question of damages.”35

Wal-Mart also argued that classwide damages could not be
established because of the “broad range of experiences among
drivers” and the variation of time they spent on each task.36
Although the appeals court said Wal-Mart’s argument as to
damages was “more compelling,” it reiterated that
“[t]ime and time again, this court has reaffirmed the
principle that the need for individualized damages calculations
does not doom a class action.”37 Nonetheless,
noting that plaintiffs still had to prove their damages, the court
considered whether plaintiffs had done so through representative
evidence.

Evaluating the issue through the lens of Tyson Foods,38
the Ninth Circuit held that the plaintiffs put forth adequate
evidence in this case, where a representative sample was the only
practicable way for plaintiffs to present their evidentiary data.
As the court held in Tyson Foods, representative evidence
may include testimony, expert studies and other evidence, all of
which the plaintiffs presented in this case.39 Many plaintiffs
testified about the length of their breaks and inspections, which
the appeals court found to be “ample evidence” for the
average time for each put forth by plaintiffs.40 Additionally, the
expert evidence submitted by plaintiffs could have been presented
as corroborative evidence in any plaintiff’s individual suit
had they moved forward individually rather than as a class.41
The appeals court also noted that Wal-Mart failed to convince a
jury not to extrapolate from the expert testimony.42 Finally, Wal-Mart
was unable to show a methodological error in the expert’s work,
which was based on payroll data, data from Department of
Transportation inspections, driver logs, questionnaires of a random
sample of class members and a good deal of other data.43
Plaintiffs therefore met their burden to show enough representative
evidence to allow a jury to draw a reasonable inference about the
unpaid time worked, and the district court did not err in granting
class certification.44

As seen in Lamictal, Ferreras and
Ridgeway, applications of Tyson continue to
demonstrate a cautious approach to the use of representative
evidence, and the outcome often turns on both the procedural
posture of the case and the nature of the underlying claim.

Uninjured Class Members

In addition to developments regarding the use of representative
evidence, courts continue to weigh in on other notable issues
regarding class certification. The Eleventh Circuit and the
Southern District of New York have both recently weighed in on the
question of how courts should view the presence of uninjured class
members with respect to Rule 23(b) predominance analyses. In
Cordoba v. DIRECTV, LLC,45 the Eleventh
Circuit provided extensive GFN of how the uninjured class
members’ lack of standing could undermine the predominance of
the class issues. In In re Aluminum Warehousing Antitrust
Litigation
,46 the Southern District of New York
reiterated that faulty statistical models that failed to isolate
uninjured class members could not meet the predominance requirement
for class certification.

Cordoba. The plaintiffs in
Cordoba alleged that DIRECTV and its telemarketing
contractor, Telecel Marketing Solutions, violated the Telephone
Consumer Protection Act by failing to maintain an internal
Do-Not-Call list.47 The United States District Court
for the Northern District of Georgia certified two classes. One
class included all individuals whose names were on the National
Do-Not-Call Registry but who nonetheless received more than one
DIRECTV telemarketing call from Telecel, comprising some 926
individuals. The second class included 16,870 people who simply
received more than one DIRECTV telemarketing call from Telecel.

The defendants sought interlocutory appeal. The Eleventh Circuit
Court of Appeals granted the appeal, but only as to whether persons
who received a telemarketing call but who had never asked to be
placed on a do-not-call list had standing, and whether that
affected certification of the second class. The appeals court
concluded that any member of the putative class that had neither
joined the National Do Not Call Registry nor notified DIRECTV or
Telecel that it did not want to receive marketing calls lacked
standing because they were not harmed-to them, “it doesn’t
make any difference that Telecel hadn’t maintained an internal
do-not-call list.”48 The court then had to address what
the effect of having putative class members that lacked standing
had on the predominance GFN.

The answer: “a powerful problem.”49 It fed right into
the Rule 23 inquiry of “how the class will prove causation and
injury and whether those elements will be subject to class-wide
proof.”50 The appeals court noted that
standing would be an “individualized issue” and that it
was “one that the district court did not account for or
consider in any way in deciding whether issues common to the class
actually predominated over issues that were individualized to each
class member.”51

In this regard, the Eleventh Circuit did not draw any bright
lines regarding numbers or proportions or procedure, but focused
instead on the underdeveloped record. It noted a need for more
information on “two key questions: First, how many class
members (or what proportion of them) asked Telecel not to call them
anymore . . . [a]nd second, how do class members intend to prove
that they made these requests?”52 Notably, the
appeals court noted that its decision did not mean “that a
substantially similar class cannot be drawn or certified . . . or
even that the class as certified by the district court was
necessarily too broad.”53 However, the court was troubled by
the lack of information, particularly with regard to the number of
uninjured putative class members. “A plaintiff need not prove
that every member of the proposed class has Article III standing
prior to certification, and in some cases a court might reasonably
certify a class that includes some putative members who might not
have satisfied the requirements of Lujan and decide to
deal with that problem later . . . . But there is a meaningful
difference between a class with a few members who might not have
suffered an injury traceable to the defendants and a class with
potentially many more, even a majority, who do not have Article III
standing.”54

Aluminum. Most recently, the
Southern District of New York also addressed the issue of uninjured
class members by examining whether statistical models could
accurately be used as common proof to prove classwide injury. In
Aluminum, plaintiffs alleged that financial institutions
and aluminum warehouse owners conspired to artificially increase
the value of aluminum derivatives, causing plaintiffs to buy
aluminum at inflated prices.55

Plaintiffs provided an expert report that used a chain of
statistical models to prove that defendants engaged in
anticompetitive behavior to lengthen loading queues for aluminum at
warehouses, which in turn, caused a delay which increased the value
of the aluminum derivatives and, ultimately, that increased
benchmark price was passed on to aluminum purchasers.56
Plaintiffs also provided anecdotal evidence in the form of
statements from industry experts and employees. But the district
court found that neither method could properly be used as common
proof required to show predominance under Rule 23(b) and denied
class certification.

In performing its GFN, the court examined the statistical
models provided by plaintiffs’ expert. Under Comcast,
when a statistical model is purported to prove classwide impact and
causation, courts must “rigorously examine the soundness of
that model at the class certification stage.”57 The court in
Aluminum found several flaws in plaintiffs’
statistical model. For example, the model “fail[ed] to isolate
the effects of the conspiracy” and instead only isolated the
effect of a London Metals Exchange load-out rule two years into the
alleged six-year conspiracy, meaning plaintiffs “lack[ed]
classwide proof that the alleged conspiracy lengthened queues
throughout the relevant period.”58 The model also
impermissibly relied on averaging, as the expert “estimated an
aggregated excess load-out figure for the entire time period and
averaged it as a monthly number for the entire conspiracy”
while simultaneously “fail[ing] to distinguish products of the
alleged conspiracy from economic background events.”59

The district court paid particular attention to the expert’s
use of averaging, noting that “courts have disdained models
that have found classwide price impact by means of averaging impact
across a class period,” because the method does not guarantee
that each class member suffered an individual injury.60 In
Aluminum, this issue was poignant due to the
“significant variation in the level of purported
conspiratorial activity at any given moment during the class
period.”61 The district court ultimately
found that the statistical model concealed uninjured class members
by “yield[ing] false positives,” thereby failing to meet
the common proof requirements for predominance.62

In addition, the court rejected plaintiffs’ argument that
anecdotal evidence should suffice by itself as common proof. While
the court acknowledged that the statements from industry experts
and employees provided important context in evaluating the
expert’s statistical models, documentary evidence is merely
supplemental:

[T]he statements by market
participants on which plaintiffs rely are anchored to particular
industry circumstances and moments in time. They do not, in terms,
profess to opine on the necessary proposition here: that
defendants’ conspiracy, as alleged in this litigation,
unitarily worked antitrust pricing injury on all entities and
persons now defined to fall within the putative class.63

Following the precedent established in Comcast and
Lamictal, the Southern District of New York held that
because the expert’s statistical model of classwide injury
fails due to design flaws, and because no other alternative
adequately demonstrated that there could be common proof of
classwide impact, class certification must be denied.64

Cordoba and Aluminum are additional cases,
similar to the previously discussed In re Rail Freight Fuel
Surcharge Antitrust Litig.
,65 that may be relevant to defendants
considering arguments related to the effect uninjured class members
have on certification. As Cordoba, Aluminum and
Rail Freight demonstrate, courts agree that a class cannot
contain too many uninjured class members, although they have taken
different approaches to their analyses.

Footnotes

1. 957
F.3d 184 (3d Cir. 2020).

2.
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036
(2016).

3.
Tyson Foods, 136 S. Ct. at 1043.

4.
Id.

5.
Id. at 1049.

6.
Id.

7. 957
F.3d 184 (3d Cir. 2020).

8.
Lamictal, 957 F.3d at 189.

9.
Id.

10.
Id.

11.
Id. at 191.

12.
Id.

13.
Id.

14.
Id. at 191 (citing In re Hydrogen Peroxide Antitrust
Litig
., 552 F.3d 305, 307 (3d Cir. 2009)).

15.
Id. at 191 (quoting Tyson Foods, 136 S. Ct. at
1040).

16.
Id.

17.
Id. at 193-95.

18.
Id. at 194-195.

19.
946 F.3d 178 (3d Cir. 2019).

20.
Id. at 181.

21.
Id. at 181-82.

22.
Id. at 186.

23.
Id. at 185-86.

24.
Ferreras, 946 F.3d at 185 (quoting Wal-Mart Stores,
Inc.
v. Dukes, 564 U.S. 338, 350 (2011) and Tyson
Foods
, 136 S. Ct. at 1045)(emphasis added). Notably, the Third
Circuit also found that the district court erred by applying an
improper standard and effectively conditionally certifying a
class-which is impermissible under Rule 23-under a
“pleading” and “initial evidence” standard
rather than by a preponderance of the evidence. Id. When
rejecting the no-reasonable-juror standard from Tyson, the
court in Lamictal cited to Ferreras (among other
cases) for the proposition that factual determinations still must
be proven by a preponderance of the evidence. See
Lamictal
, 957 F.3d at 192.

25.
Id. at 185.

26.
Id. at 186.

27.
Id.

28.
Id.

29.
Id. at 186 (citing Tyson Foods, 136 S. Ct. at
1041-42).

30.
Id. at 187.

31.
946 F.3d 1066 (9th Cir. 2020).

32.
Id. at 1072.

33.
Id. at 1075.

34.
Id. at 1083.

35.
Id. at 1086.

36.
Id.

37.
Id.

38.
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036
(2016).

39.
Id. at 1088.

40.
Id.

41.
Id. at 1087-88.

42.
Ridgeway, 946 F.3d at 1087.

43.
Id. at 1088.

44.
Id.

45.
942 F.3d 1259 (11th Cir. 2019).

46.
No. 14-cv-3116 (PAE), 2020 WL 4218329 (S.D.N.Y. July 23,
2020).

47.
Id. at 1264.

48.
Id. at 1272.

49.
Id. at 1273-74.

50.
Id. at 1273 (citations omitted).

51.
Id. at 1274.

52.
Id. at 1275.

53.
Id. at 1277.

54.
Id.

55.
Aluminum, 2020 WL 4218329.

56.
Id. at *16.

57.
Id. at *38.

58.
Id. at *45.

59.
Id. at *48, *54.

60.
Id. at *48.

61.
Id.

62.
Id. at *54.

63.
Id. at *41.

64.
Id. at *58.

65.
Dakota v. BNSF Ry. Co. (In re Rail Freight
Fuel Surcharge Antitrust Litig
.), 934 F.3d 619 (D.C. Cir.
2019). For our prior summary and GFN on that case, see D.C.
Circuit Upholds Denial of Class Certification When Economic Model
Showed Uninjured Members, Aug. 23, 2019, https://www.paulweiss.com/media/3978837/23aug19-dc-circuit.pdf.
See also Class Certification Developments, Sept. 27, 2019, https://www.paulweiss.com/practices/litigation/antitrust/publications/class-certification-developments-september-2019?id=29845.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Fashion

The truth about fast fashion: can you tell how ethical your clothing is by its price?

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What is the true cost of a Zara hoodie? In April 2019, David Hachfeld of the Swiss NGO Public Eye, along with a team of researchers and the Clean Clothes Campaign, attempted to find out. They chose to analyse a black, oversized top from Zara’s flagship Join Life sustainability line, which was printed with lyrics made famous by Aretha Franklin: “R-E-S-P-E-C-T: find out what it means to me”. It was an apt choice, because the idea was to work out whether any respect had been paid to the workers involved in the garment’s production, and how much of the hoodie’s average retail price, €26.66 (£22.70), went into their pockets.

This was no simple assignment. It took several people six months, involved badgering Zara’s parent company, Inditex, over email, slowly getting limited information in return, and interviewing dozens of sources on the ground in Izmir, Turkey, where the garment was made. The researchers analysed financial results and trading data, and consulted with experts in pricing and production. It was, Hachfeld says on the phone, with dry understatement, “quite a huge project”.

Their research suggested that the biggest chunk of the hoodie’s retail price – an estimated €10.26 – went back into Zara, to cover retail space and staff wages. The next biggest slice, after VAT at €4.44, was profit for Inditex/Zara, at €4.20. Their research suggested that the textile factory in Izmir received just €1.53 for cutting the material, sewing, packing and attaching the labels, with €1.10 of that being paid to the garment workers for the 30-minute job of putting the hoodie together. The report concluded that workers could not have received anything like a living wage, which the Clean Clothes Campaign defined, at the time the report was released, as a gross hourly wage of €6.19.

When the research was covered by the media at the time, Zara said the report was “based on erroneous premises and inaccurate reporting”, that the €7.76 sourcing price was wrong and that the workers were “paid more than the amounts mentioned in Public Eye’s report”. But at the time and when I contacted Zara for this article, the company declined to set out in greater detail where the research was inaccurate.

Workers in a small garment factory in Istanbul
Workers in a small garment factory in Istanbul. Photograph: NurPhoto/Getty Images

What is clear is that trying to find out the true production cost of a garment is a tortuous and potentially fruitless process – even when assessing a major high street retailer’s flagship “sustainability” line.

Hachfeld points out that Zara is by no means uniquely opaque. It is doing more than many clothing brands and has long-term commitments in place to work towards living wages. “They are launching initiatives and consultations with trade unions. But the question remains: when will they deliver on it?” he says. Vanishingly few retailers guarantee living wages across their vast, complex supply chains. According to the not-for-profit group Fashion Revolution, only two of the world’s 250 largest fashion brands (OVS and Patagonia) disclose how many of their workers are paid a living wage – despite the kind of resources that make billionaires of founders. Forbes estimates that Zara’s founder, Amancio Ortega, is worth $77bn (£55bn) and that H&M’s founder, Stefan Persson, is worth $21.3bn; the Sunday Times puts the wealth of Boohoo’s co-founder, Mahmud Kamani, at £1.4bn.

Throughout fashion, the numbers just don’t add up. High-street clothing has been getting cheaper and cheaper for decades. A major reason why, according to Gordon Renouf, the CEO of the fashion ethics comparison app Good on You, is that so many western brands have “moved from onshore production 40 years ago to larger offshore production”. Often, the countries they have chosen have “much lower wage costs, weaker labour movements and laxer environmental regulations”. Of course, we know all this, but we have also become accustomed to reaping the benefits. Our perception of what clothing should cost – and how much of it we need – has shifted.

In 1970, for example, the average British household spent 7% of its annual income on clothing. This had fallen to 5.9% by 2020. Even though we are spending less proportionally, we tend to own more clothes. According to the UN, the average consumer buys 60% more pieces of clothing – with half the lifespan – than they did 15 years ago. Meanwhile, fashion is getting cheaper: super-fast brands such as Shein (which sells tie-dye crop tops for £1.49) and Alibaba (vest tops for $2.20), have boomed online, making high-street brands look slow-moving and expensive by comparison.

But the correlation between price and ethics is knotty, to say the least. The conversation about sustainable fashion tends to be dominated by expensive designer brands: at Stella McCartney, for example, a wool-cotton jumper costs £925; at Another Tomorrow, each $520 sustainable viscose carbon-offset scarf neck blouse features a QR code in the label that outlines every stage of its “provenance journey”.

On the high street, many who proudly opt out of shopping at Primark or Boohoo for ethical reasons may be unaware that most reassuringly mid-priced brands don’t guarantee workers living wages or produce clothing without using environmentally harmful materials. A garment’s price is often more about aspiration and customer expectation than the cost of production. Hachfeld points out that the Zara hoodie was priced higher in Switzerland (CHF 45.90; €39.57), where Zara is positioned as a mid-range brand, than in Spain (€25.95), where it is perceived as more mainstream and affordable.

Another Tomorrow scar-neck blouse.
‘Provenance journey’ … Another Tomorrow scarf neck blouse.

Online, debates about the price of clothing can get heated. The sustainable-fashion writer Aja Barber, for example, uses the phrase “exploitation prices” to refer to very cheap clothes, such as the 8p bikini offered by the Boohoo brand Pretty Little Thing last autumn. “Either the company or the garment worker is taking the hit, and most likely it’s not the company, because that wouldn’t be a profitable business model,” she says.

Barber has a personal threshold in mind when she buys an item. “Any time a dress is under £50, you really need to break down the labour on it,” she says. “Think about what you get paid hourly – think, could a person make this dress in three hours?” She doesn’t base this calculation on local wages in the global south, either, which are so much lower “because of years of colonialism and oppression”. She buys new clothes infrequently and tries to avoid polyester, which is made with fossil fuels and generally used in garments to make them cheaper.

Barber gets annoyed by the accusations of snobbery that ripple through social media when anyone criticises super-cheap brands. Largely, she says, these comments come from middle-class people “who want to participate in the system and not feel bad about it”. In her view, fast fashion is propped up not by those with very low disposable incomes, but by middle-class overconsumption.

The only way to tell if a garment has been ethically produced is by combing through the details on the manufacturer’s website (although many brands give little or no information) and checking out its rating on Good on You, which compares fashion brands on the basis of their impact on the planet, people and animals. Even among brands that have launched with sustainability as their USP, greenwashing is rife. Renouf warns against those that talk vaguely about being “natural” and “fair”, or bang on about recycled packaging, without giving details about, say, the materials they use or whether they engage with unions in their factories.

For the fashion retailer Sam Mabley, the idea that fashion can be ethical only if it is expensive is a myth. Mabley runs a sustainable fashion store in Bristol; he thought it was a shame that he was selling so many ethical T-shirts at around the £30 price point. Usually, he says, such T-shirts are created in small batches, by “cool indie brands who do printed designs – a lot of the work is in the design”. He decided to invert that business model, ramping up the scale in order to get bigger discounts from suppliers and creating plain, organic cotton, ethically produced Ts in black and white for £7.99. With just a month of social media promotion, he secured 4,000 orders.

A model wears a Yes Friends T-shirt by Sam Mabley
‘Buying power’ … a Yes Friends T-shirt by Sam Mabley.

He believes it would be fairly easy for fast-fashion brands to use their buying power to “drive change for millions of workers around the world” and guarantee their factories paid living wages, without drastically affecting their margins. He is not alone in this view: Jenny Hulme, the head of buying at the sustainable fashion mainstay People Tree, believes ethical production is necessary and possible in every part of the market. “If you order in big volumes, it does reduce price – if a company really wants to improve, it can,” she says.

The reality of high-street clothes shopping is still very far from this ideal. Apart from a few “sustainable” lines produced by the big fast-fashion brands – which I am loath to recommend, because of so many accusations of greenwashing – it is almost impossible to find new, ethical clothing at rock-bottom prices, because the business models that have enabled clothing to get this cheap rely on inexpensive, environmentally damaging fabrics and very low wages.

That may leave anyone wanting to dress ethically on a high-street purse feeling out of options, although Renouf points out that buying better is possible at every budget. That is why, he says, Good on You aims to “provide ratings for as many brands as possible, rather than simply promoting the most sustainable brands”. You could, for example, move from an ultra-rapid fashion brand to a more engaged high-street fast-fashion brand, which might not cost much more, but still could constitute progress.

Buying fewer, but better-quality, items might save you money overall and is the most consistent advice you will hear from fashion campaigners. “Buy the best quality that you can afford, perhaps in end-of-season sales or by buying a thick jumper in the middle of summer to wear the next winter,” says Hulme.

Stepping out of the trend cycle, and avoiding brands that trade on planned obsolescence, is another avenue to explore. For example, Patrick Grant, a judge on the BBC’s The Great British Sewing Bee, explains that his Community Clothing brand aims to give shoppers more bang for their buck by stocking basics rather than continually designing new collections (it also does without retail space and marketing). Working to slimmer margins means he can invest in good fabric, but keep prices fairly low: his £49 hoodies are made from 470g 100% loopback cotton, a thicker, more durable fabric than you might find for a similar price on the high street.

A blazer from ethical brand Lora Gene
A blazer from the ethical brand Lora Gene. Photograph: Lora Gene

For those who can afford mid-high street prices, researching small, sustainable brands might glean results. A quick look at the Zara website today shows silk dresses selling for as much as £199, with plenty of others at £49.99, while H&M-owned &OtherStories sells blazers for about £120; Barber points out that at these prices, shoppers could switch to ethical brands including Lora Gene, for which she has designed a collection, and Ninety Percent. (There is a dress I like the look of for £64 in the Ninety Percent sale; a mustard Lora Gene blazer is £139.)

If those prices are out of reach, swapping clothes, shopping secondhand, repairing and rethinking what you already have, and occasionally renting for special occasions can all be cheaper – even free – alternatives.

Voting with your wallet will only go so far, however, and won’t be possible for many people who are struggling, as the number of people in poverty in the UK soars to 15 million. Questioning the magical thinking of rock-bottom prices is not about blaming the consumer. Instead, you could write to MPs and CEOs and demand that they do something about living wages and the environmental cost of fashion. The responsibility lies with brands, and with the government, which should be held to account for a broken system.

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What Is Health at Every Size (HAES)? The Approach Focuses on Health vs. Weight

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What Is Health at Every Size (HAES)? The Approach Focuses on Health vs. Weight
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Whenever we go to the doctor’s office — whether it’s for an annual physical or a sore throat— one of the first things we do is step on a scale. For some of us, it’s a fraught moment: Will the number be higher or lower than last time? How will we feel about that? And folks in larger bodies, especially, may wonder: What will my doctor think about that?

In a paper published in 2014, researchers found that 21% of patients with BMIs in the “overweight” and “obese” ranges felt that their doctor “judged them about their weight” — and as a result, they were significantly less likely to trust their doctor or even to return for follow-up care. And research shows that this lack of trust is valid: Doctors are more likely to be biased against patients with high BMIs, and that this impacts the quality of the medical care they receive.

After analyzing audio recordings of 208 patient encounters by 39 primary care physicians, scientists found that doctors established less emotional rapport with their higher weight patients, according to a study published in a 2013 issue of the journal Obesity. Other studies have found that this lack of rapport makes doctors more likely to deem a higher-weight patient as “noncompliant” or “difficult,” often before the exam has even begun. And for women, gender non-conforming folks, people of color and people with low socioeconomic status, a doctor’s weight bias may intersect with other biases and potentially make the situation worse.

Medical weight stigma can have dire consequences. When patients delay healthcare because they’re worried about discrimination, they miss regular screening exams and are more likely to be much sicker by the time doctors do see them, which is one of the reasons why some people assume everyone in a larger body is unhealthy and observe correlations (but not causations) between higher body weight and chronic health conditions that benefit from good preventative healthcare.

At the same time, provider bias can lead doctors to under-treat or misdiagnose their larger patients in all sorts of ways. Patients in larger bodies with eating disorders tend to struggle longer and be sicker when they finally do get treatment, because doctors can ignore their symptoms — or even praise their disordered eating when it results in weight loss. Weight stigma also causes doctors to overlook problems that aren’t about weight. For example, in May 2018, a Canadian woman named Ellen Maud Bennett died only a few days after receiving a terminal cancer diagnosis; in her obituary, her family wrote that Bennett had sought medical care for her symptoms for years, but only ever received weight loss advice.

Because of this mounting evidence about the health consequences of medical anti-fat bias, some providers are starting to shift their medical practices to what’s known as the “Health at Every Size” approach, the purpose of which is to take the focus off a person’s weight, and instead look more holistically at their overall health. Of course, many doctors are still using scales and prescribing weight loss. But the Health at Every Size movement can be a model for health and wellness that you can adopt for yourself, too.


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While only a fifth of the 600 respondents in a 2012 survey perceived weight-related judgment from PCPs, they were significantly less likely to report high trust in these doctors.


So, what is Health at Every Size?

Most doctors today approach health through what’s known as the “weight-centric” model, where weight is viewed as one of, if not the, most important marker of health. In the weight-centric model, if the patient is in a larger body, many conditions are treated primarily through the prescription of weight loss. Health at Every Size, commonly known as HAES (pronounced “hays”), is an alternative approach, also sometimes referred to as a “weight-inclusive” model of healthcare.

HAES originated in the fat acceptance movement and was further popularized by Lindo Bacon, Ph.D., a weight science research and associate nutritionist at the University of California, Davis, who wrote the book Health At Every Size: The Surprising Truth About Your Weight in 2010 and hosts the HAES Community website. “Health at Every Size is the new peace movement,” writes Bacon. “It is an inclusive movement, recognizing that our social characteristics such as our size, race, national origin, sexuality, gender, disability status and other attributes, are assets and acknowledges and challenges the structural and systemic forces that impinge on living well. It also supports people of all sizes in adopting healthy behaviors.” (If you’re interested, more information about the history and philosophy of HAES is available from the Association for Size Diversity and Health.)

HAES-informed practitioners do not routinely weigh patients, or use weight to determine how healthy a person is. Instead, they look at other biomarkers, like blood pressure and cholesterol levels, to assess physiological health. And they consider how various social, economic and environmental factors in a person’s life impact their ability to pursue health. Translation: Instead of assuming you’re lazy or uninformed if you aren’t exercising or eating vegetables, a HAES-aligned doctor will ask about your schedule, responsibilities and priorities, to see what kind of barriers you face to adopting a regular workout routine. And they’ll take into consideration whether or not you live near a grocery store, have time to cook, or can otherwise easily access healthier food.

This doesn’t mean a HAES provider won’t ever encourage you to be more active or change your eating habits; it means they’ll only recommend changes that are attainable and realistic for you. And, most crucially, they won’t be telling you to do these things to lose weight. In the HAES model, weight loss is never a goal of treatment because your body is never viewed as a problem to be solved. You have the right to pursue health in the body you have, rather than waiting for that body to change in order to be deemed healthy.

But isn’t it unhealthy to be fat?

Contrary to popular belief, it’s not inherently unhealthy to be fat. Research shows that the relationship between weight and health is much less clear-cut than we’re often told. Weight may be a correlating factor in health conditions like diabetes and heart disease, but scientists haven’t been able to prove that a high body weight causes such diseases. In some cases it may contribute, or it may be simply another symptom of a different root cause. (Consider how smoking can cause both lung cancer and yellow teeth — but nobody assumes that yellow teeth cause lung cancer.)

In fact, weighing more can actually protect you against certain health problems, including osteoporosis and some kinds of cancer. Heart surgery patients with higher BMIs also tend to have better survival rates than their thinner counterparts. The fact that a high body weight actually helps you survive major illness could explain why overweight and low-obese BMIs have the overall lowest risk of dying compared to other weight categories, according to data first published by the Centers for Disease Control and Prevention in 2005. In short, it is absolutely possible to be fat and fit.

Even if you live in a larger body and do have health conditions often assumed to be weight-linked, there is good evidence that you can treat those problems and improve your health without pursuing weight loss. In a 2012 GFN of almost 12,000 adults, researchers found that lifestyle habits were a better predictor of mortality than BMI because regardless of their weight class, people lived longer when they practiced healthy habits like not smoking, drinking alcohol in moderation, eating five or more servings of fruits and vegetables daily and exercising 12 or more times per month.

That’s good news because despite how often doctors prescribe it, we don’t have a safe and durable way for most people to lose significant amounts of weight. That’s because our bodies are programmed to fight weight loss, for our own good. According to an evidence review of common commercial weight loss protocols first published in 2007, and later updated in 2013: People lose some weight in the first nine to 12 months of any diet, but over the next two to five years, they gain back all but an average of 2.1 pounds. And dieting and “weight cycling” in this way can increase your risk for disordered eating and other health problems.


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In a University of South Carolina study, all of the men and women followed over the course of 170 months benefited from the adoption of healthy habits, no matter their size.

How do I practice HAES — and how do I get my doctor on board?

Practicing Health at Every Size will look different for everyone, because that’s part of its beauty: You get to decide your own health priorities and can focus on the goals that are accessible and realistic for your life, rather than following a doctor’s “one size fits all” approach to health. But there is one universal tenet: Your weight is no longer part of the conversation. That might mean that you ditch your scale, stop dieting and exercising for weight loss, start to explore intuitive eating and joyful movement — or all of the above.

But while there is growing awareness of HAES in the medical community, it is not the default approach in most healthcare offices. To find doctors or other practitioners in your area who identify as HAES-aligned, you can start by checking the HAES provider directory. But if not, it may be possible to have a productive conversation with your current doctor about why you’d like to take the focus off your weight. One simple way to set this boundary is to decline to be weighed at the start of the visit.

You may worry that the doctor’s office won’t allow you to skip the routine weigh-in, but you have a right to refuse to be weighed, says Dana Sturtevent, R.D., a dietitian and co-founder of Be Nourished, a nonprofit organization in Portland, Oregon, which offers workshops, retreats and e-courses for healthcare providers on how to offer trauma-informed and weight-inclusive care. “This can be a very real and potentially vulnerable step towards self-care,” she says. If your doctor objects, you can ask: “How will this information be used?” There are times when a weight is medically necessary, such as when it’s needed to determine the correct dosing of certain medication. If that’s the case, you can ask to be weighed with your back turned to the scale so you can’t see the number. But if you’re told it’s routine or that they just need to write it down for insurance purposes, you can ask that they write “patient declined” instead.

It can also help to give your doctor a heads up that you would prefer not to discuss weight or weight loss at your appointment. If you feel anxious about bringing this up in the exam room, you can download this letter, created by HAES providers Louise Metz, MD., and Anna Lutz, R.D., to send ahead or give to the nurse who takes your vitals at the start of the appointment. Dr. Metz has also collaborated with health coaches Ragen Chastain and Tiana Dodson to create the HAES Health Sheets Library, which contains downloadable fact sheets on how to treat conditions commonly linked to weight from a HAES perspective.

If your doctor persists in a weight-focused approach to your care, remember that you have the right to switch providers. But more importantly: “Remember that you are not required to be a certain weight in order to be worth of love, respect, belonging or decent medical care,” says Sturtevent. “Your body is your body.”

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9 Amazon Fashion Brands You Need to Be Shopping

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9 Amazon Fashion Brands You Need to Be Shopping

You’re already well-acquainted with Amazon as your shopping preference for everything from household products to books, tech accessories to groceries. But since 2017 one of the world’s largest retail marketplaces has made a pointed effort to expand past their traditional stock. In less than four years, Amazon has introduced dozens of in-house fashion brands, making their mark on the style world in the process. (And with free speedy shipping on most Amazon Prime items, there’s never been an easier way to do a spot of last-minute shopping).

We’ve gathered the nine standout Amazon fashion brands you need to know below. Whether you’re looking to refresh your underwear drawer, update your closet with some trend-focused finds, or simply add a few wardrobe essentials, the mega-retailer is literally your one-stop destination.

Core 10

What it is: High-quality workout-wear with tons of amazing reviews

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If you’re looking for affordable activewear that performs just as well as brands three times the price, Core 10 is your answer (it comes in extended sizing as well). Sports bras, leggings, shorts, hoodies, and more—it’s got all your workout needs covered.

Highlights include a ’90s-fantastic collaboration with Reebok launched earlier this summer and a “Build your own” legging option. Shoppers can customize their perfect pair with three lengths and three waistband styles, resulting in one shopper saying that they’re the “best leggings [she’s] tried. Hands down.”

Wild Meadow

What it is: Basics with a ’90s feel that all cost less than $30

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Launched this spring, Wild Meadow brings that easy-breezy youthful ’90s vibe and all styles are offered up to a size XXL. The best part? Not a single item costs more than $30, which means you should stock up—ASAP.

In the market for a tie-dye cami dress? A tie-front cropped tee? Still hunting for that perfect slip dress that will take you from day to night with a simple shoe swap? Wild Meadow has you covered with all that and more.

Amazon Essentials

What it is: Non-basic basics that are budget-friendly

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The Amazon Essentials brand includes food, household items—and wardrobe basics. Essentials, yes, but they’re anything but boring. Expect to find everything from floral t-shirt dresses to cozy fleeces, yoga leggings to bathing suits.

It’s affordable—prices are pretty much all under $50, with most under $25—and available in plus sizes. An important-to-know factor that makes this label stand out is how many maternity options there are, should you be in the market. In short, you can curate your entire wardrobe virtually no matter your size, budget, or stage of life.

Goodthreads

What it is: Trend-driven closet essentials

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Goodthreads started as a menswear-only Amazon brand but quickly expanded into the womenswear market. This line has a lot of wardrobe essentials, like button-down shirts, chinos, and sundresses, but they’re a bit more fashion-focused than some of Amazon’s other basics go-tos (like Amazon Essentials).

Here, you’ll find cinched-waist midi dresses, tops with subtly ruffled sleeves, and colorfully striped button-downs. The biggest draw, though, is the denim, which is sold in six different silhouettes, showcasing an impressive number of length and wash options. The size range for Goodthreads is XS-XXL on most pieces.

There is

What it is: Everyday underwear and lingerie, plus great swim options

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Amazon’s own lingerie brand offers everything from underwire bras to slinky slips and lace-trimmed thongs. If you’re looking for underwear or sleepwear of any kind, this is your brand.

For casual everyday wear, Mae offers cotton briefs and bras, lacy bralettes, and future go-to t-shirt bras to name a few. If you’re looking for more of a special lingerie moment, consider their wide selection of sexy, flirty sets and separates. The brand has expanded into swim, shapewear, and pajamas, too.

Daily Ritual

What it is: Comfortable basics that go up to 7X

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Daily Ritual is your go-to for comfortable options that look presentable enough for stepping out with friends or running errands. The brand is known for its selection of casual essentials that are anything but basic, and most items are made of a super soft cotton jersey or fleece.

There’s a bit of everything, including puffer jackets for when temps get chilly, but the majority of the pieces focus on classic cotton tees, joggers, and the like. An impressive amount is offered in plus sizes up to 7X, providing real universal appeal. For the shopper who loves to dress simply, stay comfortable, and look put-together, this is the Amazon fashion brand for you.

The Drop

What it is: Limited-edition collections co-created with some of today’s biggest social stars

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Built on the concept of curated, limited-edition capsule collections that are only promised to be available for a quick 30 hours, The Drop is Amazon’s most coveted line. Each collab is designed and curated by a rotating list of bloggers and influencers uniquely catering to their individual style at affordable prices—it’s either pieces they want for their own wardrobe or have developed a signature look around.

Past influencers to participate include Charlotte Groeneveld of The Fashion Guitar, Leonie Hanne of Ohh Couture, Quigley Goode of Officially Quigley, and more. Depending on the influencer, The Drop could include everything from wrap dresses to faux leather pants; teddy bear shearling coats or shackets. You have 30 hours to order originally, but some styles (like the below) make a reappearance.

Cable Stitch

What it is: Classic knitwear silhouettes, updated

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The name literally says it all: Cable Stitch is the Amazon brand to go to if you love a good knitwear moment. Cardigans, pullovers, dresses…you name it. The range will appeal to minimalists and maximalists alike, with classic solid colors and brightly colored stripes in the mix.

When Amazon creates an entire line centered around knitwear, you know they’re going to go big or go home. You can shop an array of the more unconventional knits that are trending (like side-slit midis and puff-sleeve pullovers) as well as basics. Most pieces retail between $20 and $60, though some outliers will exist from season to season.

The Fix

What it is: Stand-out shoes and bags that can upgrade everything in your closet

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Accessory obsessed? You need to know about The Fix. Specializing in the little pieces that make or break a look, this is your shop for all the trendiest footwear and handbags you’ve been coveting since you first saw them explode on the street style scene.

At The Fix, you can shop heels, flats, sandals, and sneakers in a range of head-turning styles. There are certainly no basics here, with every style boasting at least one special detail that makes them stand out from the rest. Whether that’s an ankle strap or chunky heels covered in velvet, special details let you transform your look by swapping in a new accessory.

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