On July 1, 2025, the U.S. Court of Appeals for the Ninth Circuit, in Harrington v. Cracker Barrel Old Country Store, became the latest federal circuit to rule that the U.S. Supreme Court decision in Bristol-Meyers Squibb Company v. Superior Court of California (BMS) applies to collective actions brought under the Fair Labor Standards Act (FLSA). The Ninth Circuit held that when the basis for jurisdiction in an FLSA collective action is specific personal jurisdiction, courts must assess whether they have specific personal jurisdiction on a claim-by-claim basis. This means every opt-in plaintiff’s claim must be sufficiently connected to a defendant’s activities in the forum state, and opt-in plaintiffs from out of state cannot rely on the connection of the named plaintiff’s claims to the forum state.
The Circuit Split over BMS’s Applicability to FLSA Collective Actions
BMS involved a mass action brought under California law by California residents and nonresidents in California state court. The Supreme Court held that specific personal jurisdiction requires “a connection between the forum and the specific claims at issue.” Because the nonresidents had no relationship with the forum state, the Supreme Court concluded that the California court could not exercise specific personal jurisdiction over their claims. To avoid splintering the mass action, the Supreme Court reasoned, the nonresident plaintiffs could have brought their claims in the forums with general personal jurisdiction over the defendant (i.e., where the defendant was headquartered or incorporated).
Since then, the majority of federal circuit courts that considered the issue (Third, Sixth, Seventh and Eighth Circuits) held that BMS applies with equal force to FLSA collective actions, with just the First Circuit reaching the opposite conclusion. In Harrington, the Ninth Circuit became the fifth federal circuit to join the consensus.
The Harrington Decision
In Harrington, the district court granted the plaintiffs’ motion for preliminary certification and approved nationwide FLSA notice to a group of prospective opt-in plaintiffs, which included out-of-state employees with no ties to the defendant’s operations in the forum state of Arizona. The district court certified the following question to the Ninth Circuit the question: Does BMS apply in FLSA collective actions in federal court such that nationwide notice was inappropriate?
The Ninth Circuit answered that question in the affirmative and vacated and remanded the district court’s decision to authorize nationwide notice. It held that when the basis for personal jurisdiction in an FLSA collective action is specific personal jurisdiction, the district court must assess whether each opt-in plaintiff’s claim bears a sufficient connection to the defendant’s activities in the forum state.
First, the Ninth Circuit highlighted that the FLSA lacks a nationwide service-of-process provision. Consequently, under Federal Rule of Civil Procedure 4(k)(1)(A), courts must look to the law of the forum state in their personal jurisdiction analyses. Because Arizona’s long-arm statute was “co-extensive with the limits of federal due process” under the Fourteenth Amendment, the district court was required to consider the connection between every opt-in plaintiff’s claim and the defendant’s contacts with Arizona.
Second, the court reasoned that FLSA collective actions are akin to the “mass action” at issue in BMS. Like mass actions, FLSA collective actions comprise “aggrieved workers” who “act as a collective of individual plaintiffs with individualcases.” For that reason, these actions necessitate analysis of personal jurisdiction on a claim-by-claim basis. This differentiates FLSA collective actions from class actions, which are representative actions in which courts analyze personal jurisdiction at the level of the overall suit rather than at the individual-claim level.
Third, the Ninth Circuit rejected the plaintiffs’ argument that courts need only determine that a defendant has sufficient contacts with the United States under the Fifth Amendment’s Due Process Clause, rather than sufficient contacts with the forum state under the Fourteenth Amendment’s Due Process Clause. The court held that, if the FLSA had a nationwide service-of-process provision, only the Fifth Amendment Due Process Clause would apply. Because the FLSA does not have such a provision, courts must look to state law and the Fourteenth Amendment on a claim-by-claim basis.
Harrington’s Implications for Employers and Future Litigation
The Harrington decision marks a big win for employers defending nationwide FLSA collective actions. Now in the Third, Sixth, Seventh and Ninth Circuits, the size and impact of these actions are significantly narrowed. If plaintiffs bring a collective action in a forum that lacks general personal jurisdiction over an employer, then the action must be limited to in-state plaintiffs. Although the Second, Fourth and Fifth Circuits have not yet ruled on this issue, the growing consensus of federal circuit courts provides a defense to employers facing suits of this kind in those circuits.
Employers should keep in mind that they may be subject to nationwide FLSA collective actions in forums that have general personal jurisdiction over them, such as the state where they are headquartered or incorporated. Further, employers may also be subject to these actions in states with consent-to-jurisdiction statutes, which expressly allow for the exercise of general personal jurisdiction over out-of-state companies that register to do business in those states. Employers should review the consent-to-jurisdiction statutes in the states where they are registered to do business to determine whether they are subject to general personal jurisdiction by virtue of their registration.
