Now that Black Friday has passed and Christmas lights are up, the winter holiday shopping season is in full swing.  And while you may have survived or even avoided the perils of shopping for the best deals in frenzied environments, there is another type of shopping that lurks for employers: “forum shopping” by employees in wage-and-hour collective actions under the Fair Labor Standards Act (“FLSA”).

As the term suggests, forum shopping refers to the practice of shopping for a particular court or jurisdiction that will provide the most favorable outcome.  This litigation strategy has gained traction over the years by employees when filing wage claims against their employers.  But that practice may soon be limited.  In 2017, the United States Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2017), addressed the issue of forum shopping in a mass tort action consisting of over 600 plaintiffs, most of whom (592) were non-California residents.  Notably, the Court determined that a California state court lacked specific jurisdiction over the nonresident plaintiffs’ product liability claims because their injury from the product did not occur in California.  Jurisdiction over the state law claims at issue, the Court explained, requires “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.”

Though this decision was a huge victory for large companies that do business nationwide, the Supreme Court expressly left open the question of whether such limitation to forum shopping applies in federal court actions, including collective actions under the FLSA.  Federal district courts have weighed in on this issue and have reached opposite conclusions.  In one group, courts have declined to apply the decision in Bristol-Myers to FLSA collective actions, reasoning that unlike the mass tort state law claims at issue in Bristol-Myers, an FLSA collective action derives from a federal statute that was intended to address wage-and-hour practices nationwide.  According to these courts, applying Bristol-Myers to FLSA collective actions would go against congressional intent because Congress created the FLSA as a mechanism for employees to bring their claims on behalf of other, similarly-situated employees, regardless of whether they are in-state or out-of-state.

Nonetheless, other district courts have found that Bristol-Myers does apply in FLSA collective actions to divest courts of jurisdiction over the FLSA claims of out-of-state employees.  These courts reason that the FLSA does not provide for nationwide service of process and that an FLSA collective action, with its opt-in structure for plaintiffs, is similar to the mass tort action in Bristol-Myers.  In sum, while the district court split on this issue continues to grow, employers are left wondering if and when forum shopping in FLSA collective actions will end.

The answer may come soon.  As of now, two circuit courts (the Seventh Circuit and the District of Columbia Circuit) are considering whether Bristol-Myers applies in federal court actions.  See Florence Mussat v. IQVIA, Inc., et al., No. 19-1204, Oral Argument (7th Cir. Sept. 27, 2019); see also Molock, et al. v. Whole Foods Market, Inc., et al., No. 18-7162, Oral Argument (D.C. Cir. Sept. 25, 2019).  Whether they follow the reasoning of either group of district courts or come up with their own remains to be seen.  But during this winter holiday shopping season, a limitation to forum shopping in FLSA collective actions may be first on employers’ wish lists.