Ninth Circuit Joins Appeals Courts Applying Bristol-Myers to FLSA Actions
Since the U.S. Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017) (Bristol-Myers) determined that the trial court lacked specific jurisdiction over the claims of nonresident plaintiffs in a products liability mass tort action against a nonresident pharmaceutical company, a number of federal circuit courts have applied the ruling to collective actions brought pursuant to the Fair Labor Standards Act (FLSA). Decisions issued by most circuit courts of appeal have analogized the mass tort action in Bristol-Myers to collective actions alleging wage and hour violations, ensuring that trial courts consider if specific jurisdiction exists for nonresident employees that opt to join a FLSA lawsuit against an employer.
In a recent decision in Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678 (9th Cir. July 1, 2025), the U.S. Court of Appeals for the Ninth Circuit joined other federal circuit courts in holding that, where the complaint under the FLSA is based upon specific personal jurisdiction, a court must analyze each individual opt-in plaintiff’s claims to determine if there is a sufficient connection with the defendant’s activities in the forum state. Plaintiffs could not simply rely upon the specific jurisdictional analysis of one plaintiff located in the forum state to satisfy jurisdiction for all opt-in plaintiffs. The plaintiffs, current and former employees of Cracker Barrel, sought to conditionally certify a nationwide class of servers. They alleged that Cracker Barrel’s use of tip credits and wages for tipped employees violated the FLSA. The action was filed in the U.S. District Court for the District of Arizona, a jurisdiction where many opt-in plaintiffs had no connection and no general jurisdiction existed. As a result, Cracker Barrel argued that the district court lacked personal jurisdiction over out-of-state employees’ claims. The district court disagreed and concluded that personal jurisdiction existed for all claims because only one Arizona-based plaintiff was necessary to establish jurisdiction. The district court granted the plaintiffs’ motion for preliminary certification of the FLSA collective and approved issuance of notice to potential opt-in plaintiffs nationwide. Cracker Barrel’s interlocutory appeal followed.
The jurisdictional issue on appeal was straightforward: after Bristol-Myers, did the district court have specific personal jurisdiction over claims asserted by nonresident servers over a nonresident defendant like Cracker Barrel in a FLSA collective action? In Bristol-Myers, the Supreme Court held that a California state court did not have specific jurisdiction over the claims of nonresident plaintiffs in a mass tort action against a nonresident pharmaceutical company. The Supreme Court found a lack of connection between the defendant’s contacts with the forum state and the nonresidents’ claims, because the drug at issue in the litigation was not designed, developed or manufactured in California, and the nonresident plaintiffs did not buy or ingest the drug there. Notwithstanding that both California resident plaintiffs and nonresident plaintiffs alleged the same injuries, the Supreme Court concluded that the Due Process Clause of the Fourteenth Amendment prohibited the state court from exercising personal jurisdiction over nonresidents’ claims.
Absent general jurisdiction, Bristol-Myers holds that there must be sufficient connection between the claims and the corporation’s activities in the state where the suit is filed to support specific jurisdiction. Because Cracker Barrel is incorporated and has its principal place of business in Tennessee, the district court lacked general jurisdiction in Arizona; accordingly, the Ninth Circuit analyzed the district court’s determination that it had specific personal jurisdiction over Cracker Barrel with respect to nonresident employees’ FLSA claims. The Ninth Circuit rejected the plaintiffs’ contention that FLSA actions are representative actions—like class actions—and therefore personal jurisdiction should be analyzed at the level of the suit. Instead, the Ninth Circuit reasoned that because FLSA actions are merely collections of individual claims, the court is required to analyze personal jurisdiction on an individual, claim-by-claim basis.
The plaintiffs in Harrington also argued that the Fifth Amendment constrains personal jurisdiction in federal courts and therefore Bristol-Myers, which was rooted in application of the Fourteenth Amendment, did not apply. The plaintiffs claimed that a specific jurisdiction analysis required only a determination that the defendant had sufficient contacts with the United States as whole, as opposed to the forum state. Because the FLSA does not contain a service of process provision, the Ninth Circuit reasoned that the Federal Rules of Civil Procedure directed it to consider the law of the forum state. In this case, Arizona’s long-arm statute was consistent with the limits of federal due process under the Fourteenth Amendment. Consequently, the Ninth Circuit rejected the plaintiffs’ argument that Bristol-Myers did not apply to the collective action.
The Ninth Circuit disagreed with the alternative view advanced by the U.S. Court of Appeals for the First Circuit in Waters v. Day & Zimmerman NPS, Inc., 23 F.4th 84 (1st Cir. 2022), which asserted that the Fourteenth Amendment was relevant only to the service of a summons by the original plaintiff. Effectively, the First Circuit interpretation treats the service of the original FLSA complaint and the analysis for any subsequent opt-in plaintiffs as separate and distinct, whereby the only limitations imposed on the district court for FLSA opt-ins were those present in the Fifth Amendment. Instead, the Ninth Circuit found no statutory basis or rationale in the nature of collective actions to suggest that the framework for the analysis for personal jurisdiction changes between the original plaintiff’s service and the subsequent opt-in plaintiffs’ claims.
Holding that Bristol-Myers applied to FLSA collective actions in federal court, the Ninth Circuit concluded that it was an error by the district court to issue nationwide notice of the collective action based on a single in-state employee. In doing so, the Ninth Circuit aligned with the Third, Sixth, Seventh and Eight Circuits applying Bristol-Myers to FLSA actions. The case was remanded with instructions to the district court to reassess preliminary certification in light of its decision.
For those practicing in a circuit without controlling appellate case law, such as the Fifth or Eleventh Circuits, it is important to note that the weight of appellate authority presently falls in favor of applying Bristol-Myers to FLSA collective actions to require the jurisdictional determination about the defendant’s contacts in the forum state and connection to nonresident plaintiffs’ claims. However, it is worth highlighting that an alternative viewpoint exists for the jurisdictional analysis for FLSA opt-ins under First Circuit precedent. Practitioners filing—or responding to—a complaint seeking relief under the FLSA that involves nonresident plaintiffs should carefully investigate the jurisdictional issues in order avoid jurisdictional barriers to asserting claims or to raise appropriate jurisdictional defenses in response to such claims.
In a recent decision in Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678 (9th Cir. July 1, 2025), the U.S. Court of Appeals for the Ninth Circuit joined other federal circuit courts in holding that, where the complaint under the FLSA is based upon specific personal jurisdiction, a court must analyze each individual opt-in plaintiff’s claims to determine if there is a sufficient connection with the defendant’s activities in the forum state. Plaintiffs could not simply rely upon the specific jurisdictional analysis of one plaintiff located in the forum state to satisfy jurisdiction for all opt-in plaintiffs. The plaintiffs, current and former employees of Cracker Barrel, sought to conditionally certify a nationwide class of servers. They alleged that Cracker Barrel’s use of tip credits and wages for tipped employees violated the FLSA. The action was filed in the U.S. District Court for the District of Arizona, a jurisdiction where many opt-in plaintiffs had no connection and no general jurisdiction existed. As a result, Cracker Barrel argued that the district court lacked personal jurisdiction over out-of-state employees’ claims. The district court disagreed and concluded that personal jurisdiction existed for all claims because only one Arizona-based plaintiff was necessary to establish jurisdiction. The district court granted the plaintiffs’ motion for preliminary certification of the FLSA collective and approved issuance of notice to potential opt-in plaintiffs nationwide. Cracker Barrel’s interlocutory appeal followed.
The jurisdictional issue on appeal was straightforward: after Bristol-Myers, did the district court have specific personal jurisdiction over claims asserted by nonresident servers over a nonresident defendant like Cracker Barrel in a FLSA collective action? In Bristol-Myers, the Supreme Court held that a California state court did not have specific jurisdiction over the claims of nonresident plaintiffs in a mass tort action against a nonresident pharmaceutical company. The Supreme Court found a lack of connection between the defendant’s contacts with the forum state and the nonresidents’ claims, because the drug at issue in the litigation was not designed, developed or manufactured in California, and the nonresident plaintiffs did not buy or ingest the drug there. Notwithstanding that both California resident plaintiffs and nonresident plaintiffs alleged the same injuries, the Supreme Court concluded that the Due Process Clause of the Fourteenth Amendment prohibited the state court from exercising personal jurisdiction over nonresidents’ claims.
Absent general jurisdiction, Bristol-Myers holds that there must be sufficient connection between the claims and the corporation’s activities in the state where the suit is filed to support specific jurisdiction. Because Cracker Barrel is incorporated and has its principal place of business in Tennessee, the district court lacked general jurisdiction in Arizona; accordingly, the Ninth Circuit analyzed the district court’s determination that it had specific personal jurisdiction over Cracker Barrel with respect to nonresident employees’ FLSA claims. The Ninth Circuit rejected the plaintiffs’ contention that FLSA actions are representative actions—like class actions—and therefore personal jurisdiction should be analyzed at the level of the suit. Instead, the Ninth Circuit reasoned that because FLSA actions are merely collections of individual claims, the court is required to analyze personal jurisdiction on an individual, claim-by-claim basis.
The plaintiffs in Harrington also argued that the Fifth Amendment constrains personal jurisdiction in federal courts and therefore Bristol-Myers, which was rooted in application of the Fourteenth Amendment, did not apply. The plaintiffs claimed that a specific jurisdiction analysis required only a determination that the defendant had sufficient contacts with the United States as whole, as opposed to the forum state. Because the FLSA does not contain a service of process provision, the Ninth Circuit reasoned that the Federal Rules of Civil Procedure directed it to consider the law of the forum state. In this case, Arizona’s long-arm statute was consistent with the limits of federal due process under the Fourteenth Amendment. Consequently, the Ninth Circuit rejected the plaintiffs’ argument that Bristol-Myers did not apply to the collective action.
The Ninth Circuit disagreed with the alternative view advanced by the U.S. Court of Appeals for the First Circuit in Waters v. Day & Zimmerman NPS, Inc., 23 F.4th 84 (1st Cir. 2022), which asserted that the Fourteenth Amendment was relevant only to the service of a summons by the original plaintiff. Effectively, the First Circuit interpretation treats the service of the original FLSA complaint and the analysis for any subsequent opt-in plaintiffs as separate and distinct, whereby the only limitations imposed on the district court for FLSA opt-ins were those present in the Fifth Amendment. Instead, the Ninth Circuit found no statutory basis or rationale in the nature of collective actions to suggest that the framework for the analysis for personal jurisdiction changes between the original plaintiff’s service and the subsequent opt-in plaintiffs’ claims.
Holding that Bristol-Myers applied to FLSA collective actions in federal court, the Ninth Circuit concluded that it was an error by the district court to issue nationwide notice of the collective action based on a single in-state employee. In doing so, the Ninth Circuit aligned with the Third, Sixth, Seventh and Eight Circuits applying Bristol-Myers to FLSA actions. The case was remanded with instructions to the district court to reassess preliminary certification in light of its decision.
For those practicing in a circuit without controlling appellate case law, such as the Fifth or Eleventh Circuits, it is important to note that the weight of appellate authority presently falls in favor of applying Bristol-Myers to FLSA collective actions to require the jurisdictional determination about the defendant’s contacts in the forum state and connection to nonresident plaintiffs’ claims. However, it is worth highlighting that an alternative viewpoint exists for the jurisdictional analysis for FLSA opt-ins under First Circuit precedent. Practitioners filing—or responding to—a complaint seeking relief under the FLSA that involves nonresident plaintiffs should carefully investigate the jurisdictional issues in order avoid jurisdictional barriers to asserting claims or to raise appropriate jurisdictional defenses in response to such claims.
