[co-author: Heather Domingo]
On July 1, 2025, the U.S. Court of Appeals for the Ninth Circuit joined the majority of federal appellate courts holding that courts must establish personal jurisdiction over the claims of each member of a collective action under the Fair Labor Standards Act (FLSA).
In Harrington v. Cracker Barrel Old Country Store, Inc., the plaintiffs filed suit in the U.S. District Court for the District of Arizona, alleging various FLSA violations. The plaintiffs moved for preliminary certification of an FLSA collective and sought authorization from the district court to send notice of the case to “all servers who worked for Cracker Barrel in states where it attempts to take a tip credit… over the last three years.” Cracker Barrel opposed the plaintiffs’ request and argued that notice should not be sent to (1) servers outside Arizona unless the district court has personal jurisdiction over their claims or (2) servers who are bound by Cracker Barrel’s arbitration agreement.
The district court granted the plaintiffs’ request to send notice to the nationwide collective group. The court noted that the majority of district courts in the Ninth Circuit had rejected applying the jurisdictional rule set forth in Bristol-Meyers Squibb Co. v. Superior Court of California, San Francisco County (BMS) 582 U.S. 255 (2017)—i.e., a court must have specific personal jurisdiction over each putative class member’s claim when general personal jurisdiction over the defendant in the forum does not exist. And therefore, because one of the named plaintiffs worked in Arizona, that was sufficient to establish personal jurisdiction over Cracker Barrel in Arizona with respect to employees working in other states.
On appeal, the Ninth Circuit reversed the district court’s “mistaken assumption” that BMS did not apply, and remanded the case with instructions for the district court to reassess its preliminary certification decision and apply the rule set forth in BMS. Given the facts of the case, this decision effectively prohibits servers who only worked at a Cracker Barrel location outside of Arizona from joining the collective action against the restaurant.
With this ruling, the Ninth Circuit joins the Third, Sixth, Seventh and Eighth Circuits holding the same. In a prior post, we discussed the Seventh Circuit’s decision to apply in FLSA collective actions BMS’s claim-by-claim analysis for personal jurisdiction. The Ninth Circuit’s decision follows that same approach.
The Ninth Circuit also answered a separate important question in Harrington: whether courts may authorize the sending of notice to employees who entered into arbitration agreements with their employer.
The Ninth Circuit said yes, but that it would be an abuse of discretion to do so if it was undisputed that the employee’s claims are subject to arbitration. In this case, the district court did not abuse its discretion in granting notice to employees who had arbitration agreements with Cracker Barrel because factual issues existed as to whether those employees were actually required to arbitrate those claims.
In short, while the Ninth Circuit joins the majority of federal appellate courts applying BMS’s rule to FLSA collective actions, the circuit split remains. Ultimately, the U.S. Supreme Court may need to resolve the issue. But in the meantime, this is a positive decision for employers facing FLSA collective actions because it may (1) compel plaintiffs to file suit in a jurisdiction where a company has substantial contacts, or (2) result in smaller FLSA collective groups.
[View source.]
