by Isabelle Wechsler*

Despite the current weight of case law suggesting otherwise, the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California (“BMS”) should not apply to Fair Labor Standards Act (“FLSA”) collective actions. This Contribution argues that federal courts hearing FLSA claims are not required to exercise personal jurisdiction over defendants with respect to out-of-state opt-in FLSA plaintiffs’ claims. This Contribution first provides a brief background on the Supreme Court’s decision in BMS and describes how lower courts have uniformly limited BMS’s application to class actions but not FLSA collective actions. It then compares the text and history of FLSA collective actions and class actions to demonstrate that the same reasoning used to limit BMS’s application to class actions should extend FLSA collective actions. It also shows that FLSA-specific arguments, particularly in relation to mass actions, support this conclusion. Finally, this Contribution demonstrates that even if federal courts are required to exercise personal jurisdiction over FLSA opt-in plaintiffs’ claims, a proper reading of Federal Rule of Civil Procedure 4(k) reveals only Fifth Amendment, not Fourteenth Amendment, Due Process restrictions apply, and thus out-of-state opt-in plaintiffs’ claims remain within the reach of a federal court’s jurisdiction.

In 2017, the Supreme Court in Bristol-Myers Squibb v. Superior Court of California (“BMS”) held that California state courts lacked specific personal jurisdiction over Bristol-Myers Squibb with respect to the claims of nonresident plaintiffs in a mass action.1 The Court rested its decision on the lack of any “affiliation between the forum [California] and the underlying controversy,” i.e., the claims of plaintiffs who did not live in California.2 Despite the Court’s note that its decision was a “straightforward application . . . of settled principles of personal jurisdiction [that would] not result in [a] parade of horribles,”3 BMS has left lower courts scrambling to understand its impact on personal jurisdiction in other forms of group litigation, namely class actions and Fair Labor Standards Act (“FLSA”) collective actions.4 The FLSA “permits ‘similarly situated’ employees to aggregate their claims and bring a collective action against an employer.”5 The current weight of authority favors finding that BMS’s heightened personal jurisdiction requirement should not apply to unnamed plaintiffs in class actions,6 but that it should apply to opt-in plaintiffs in FLSA collective actions.7

This Contribution argues against the tide of authority with respect to the FLSA and concludes that BMS should not limit a federal court’s ability to hear the claims of out-of-state opt-in plaintiffs in FLSA collective actions. First, a comparison of the text, procedure, and history of Federal Rule of Civil Procedure 23 class actions and 29 U.S.C. § 216(b) FLSA collective actions reveals that many of the arguments which lead courts to find that BMS does not apply to class actions should compel the same result with respect to FLSA collective actions. Second, supplementary FLSA-specific arguments support this conclusion. Third, even if federal courts are required to find personal jurisdiction over opt-in plaintiffs, a proper reading of Federal Rule of Civil Procedure 4(k) confirms that once personal jurisdiction is found over the original named plaintiff’s claims, any new FLSA claims must only comply with Fifth Amendment Due Process requirements.

*****

There are two main paths a court can take to find that its exercise of personal jurisdiction over a defendant comports with due process: general and specific personal jurisdiction. At bottom, both pathways ask “whether the defendant purposefully established ‘minimum contacts’ in the forum State”8 such that “maintenance of the suit does not offend traditional notions of fair play and substantial justice.”9 When a defendant’s contacts with a forum are so “continuous and systematic as to render them essentially at home in the forum,” a court may exercise general personal jurisdiction.10 Specific personal jurisdiction instead allows a court to exercise power over a defendant for claims that “arise out of or relate to the defendant’s contacts with the forum.”11

While state courts directly employ this analysis to find personal jurisdiction over a defendant, federal courts have to contend with Federal Rule of Civil Procedure 4(k) (“Rule 4(k)”). Rule 4(k) sets “forth various requirements for effectively serving a summons on a defendant in federal court, thereby establishing personal jurisdiction over the defendant.”12 Rule 4(k) reads, in relevant part:

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

(C) when authorized by a federal statute.13

Thus, when Congress has not explicitly provided for nationwide service of process as per subsection (C), “a federal court normally looks . . . to the long-arm statute of the State in which it sits to determine whether a defendant is amenable to service, a prerequisite to its exercise of personal jurisdiction.”14 A state’s long-arm statute must comport with “[t]he Due Process Clause of the Fourteenth Amendment’s constrain[t]s [on] a State’s authority.”15 Thus, the bounds of a “federal court’s authority to assert personal jurisdiction” under the Due Process Clause of the Fifth Amendment are often indirectly restricted by the Fourteenth Amendment constraints that apply to the state in which the federal court sits.16

BMS complicated these principles of jurisdiction for actions with multiple plaintiffs from different states. In BMS, a group of over 600 plaintiffs brought suit against Bristol-Myers Squibb in California state court, alleging the drug Plavix caused various injuries under state law.17 The nonresident plaintiffs’ claims, although substantially the same as those of the residents, were in no way connected to California (e.g., their drugs were not obtained there and their injury did not occur there).18 When the case made its way to the Supreme Court, the Court found that “[w]hat is needed—and what is missing here—is a connection between the forum and the specific claims [of the nonresidents] at issue.”19 Consequently, the Court found that pursuant to the Fourteenth Amendment’s Due Process Clause, California state courts did not have specific personal jurisdiction over the claims made by nonresidents.20 This decision was grounded in principles of state sovereignty, with the Court explaining that “even if the forum State is the most convenient location for litigation, the Due Process Clause, as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgement.”21

In conclusion, the Court noted that “since [its] decision concerns the due process limits on the exercise of specific jurisdiction by a State, [it] leave[s] open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.”22 This left ambiguity regarding the impact of BMS, a coordinated mass action in state court, on specific personal jurisdiction for other forms of group litigation in federal court. In her dissent, Justice Sotomayor articulated her worry that BMS would “make it profoundly difficult for plaintiffs who are injured in different States by a defendant’s nationwide course of conduct to sue that defendant in a single, consolidated, action.”23 True to Justice Sotomayor’s prediction, lower courts have struggled to reconcile BMS’s impact on class actions and FSLA collective actions.

With class actions, there is general consensus among federal courts that BMS does not apply. While some district courts are outliers,24 the “large supermajority of courts to consider the issue,” especially circuit courts, “have held that the exercise of personal jurisdiction in nationwide class actions continues to be permissible.”25 This weight of authority mainly relies on the distinction that, unlike mass actions, the Federal Rule of Civil Procedure 23 (“Rule 23”) class certification process is a unique procedural mechanism by which the “lead plaintiffs earn the right to represent the interests of absent class members by satisfying all” the required criteria of Rule 23.26 In a mass action, each plaintiff is a named party, but class actions are single suits in which “a defendant litigates against only the class representative.”27 Moreover, a court in certifying a Rule 23(b)(3) class action must consider if “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy,” including “the desirability or undesirability of concentrating the litigation of the claims in the particular forum.”28 Overall, it is not unfair (and thus not unconstitutional) to subject a defendant to the claims of out-of-state absent plaintiffs because the procedural protections within Rule 23 safeguard the defendant’s due process rights.29

Despite their consensus on class actions, federal courts have diverged regarding BMS’s implications for FLSA collective actions brought pursuant to § 216(b). The Sixth, Eighth, Third, and Seventh Circuits (hereinafter the “Fischer-aligned” courts) have found that federal courts are unable to exercise personal jurisdiction over out-of-state opt-in plaintiffs.30 These courts find that because the FLSA does not provide for nationwide service of process, Rule 4(k) requires that a federal court’s exercise of personal jurisdiction is constrained by the relevant state’s underlying long-arm statute, and thus also by the Fourteenth Amendment.31 Consequently, “every plaintiff who seeks to opt in to the [collective action] must demonstrate his or her claim arises out of or relates to the defendant’s minimum contacts with the forum state,” just as was required in BMS.32 The First Circuit, in Waters v. Day & Zimmermann, is the lone court of appeals to find that while BMS restricted a state court’s exercise of jurisdiction pursuant to the Fourteenth Amendment, under a proper reading of Rule 4(k) the Fifth Amendment does not equally restrict nonresident plaintiffs’ ability to join FLSA collective actions in federal court.33 In short, “the opt-ins who file[] consent forms with the court [become] parties to the suit upon filing those forms. Nothing else is required to make them parties.”34 Despite Waters’ isolation, most of the Fischer-aligned opinions themselves are fiercely divided and accompanied by fiery dissents.35 Moreover, the “Second, Fourth, Fifth, Ninth, and D.C. Circuit Courts have yet to weigh in on the issue, and district courts within these jurisdictions are split.”36

Ultimately, BMS should not limit a federal court’s ability to hear the claims of out-of-state plaintiffs in FLSA collective actions. A comparison of the text, procedure, and history of Rule 23 class actions and § 216(b) FLSA collective actions reveals that many of the arguments which lead courts to find that BMS does not apply to class actions should also apply to FLSA collective actions. Supplementary FLSA-specific arguments also support this conclusion. Finally, even if courts must find personal jurisdiction over opt-in FLSA plaintiffs, the Waters Court properly reads Rule 4(k) and confirms that once personal jurisdiction is found over the original FLSA named plaintiff’s claims, any new claims only have to comply with Fifth Amendment Due Process requirements.

A proper comparison of the text, history, and purpose of § 216(b) and Rule 23, as argued by the FLSA plaintiffs in Fischer, reveals key similarities with respect to the due process protections for defendants.37 There is no denying that there are clear differences between Rule 23 actions and collective actions under the FLSA.38 However, these differences need not prevent courts from considering the much stronger parallels between class actions and collective actions because the differences themselves do not directly implicate the purpose of the FLSA, personal jurisdiction analysis, or the Court’s holding in BMS.39 The Fischer-aligned courts overlook the myriad parallels between § 216(b) and Rule 23 that should result in the consistent treatment of opt-in plaintiffs and absent class members with respect to personal jurisdiction in federal courts.

Beginning with the FLSA’s text, § 216(b) provides, in relevant part:

An action to recover the liability prescribed in the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.40

Besides filing consent, this text makes no reference to any requirements, jurisdictional or otherwise, for opt-in plaintiffs to join the suit.41 What’s more, 29 U.S.C. § 256, which articulates the statute of limitations for § 216(b), refers to “a collective or class action instituted under the Fair Labor Standards Act.”42 Indeed, for the first decade after the FLSA’s enactment, courts often treated FLSA collective actions and the antecedent to Rule 23 class actions synonymously.43 This language in § 256, which was implemented when the FLSA was amended in 1947,44 as well as the associated House committee report’s identical reference to class actions,45 may suggest that Congress actually intended for collective and class actions to be one and the same in federal court.46 Fischer-aligned courts contend the 1947 amendment was intended to eliminate “excessive representative litigation” by adding an opt in provision that made FLSA collective actions more “a system of permissive joinder” than one of class actions.47 This conclusion draws too much. The original 1938 FLSA allowed “representatives,” who lacked their own claims, rather than employees themselves, to bring suits against employers.48 As the Supreme Court itself noted, the 1947 amendment was not intended to eliminate group action but merely to eliminate “excessive litigation spawned by plaintiffs lacking a personal interest in the outcome” by requiring FLSA plaintiffs to be the actual employees who “assert[] claims in their own right.”49

The paths of the FLSA and Rule 23 seemed to diverge as a result of one key event. In amending Rule 23 to its modern form in 1966, including the swap from an opt in to opt out class action regime, the advisory committee’s notes specifically stated that “[t]he present provisions of 29 U.S.C. § 216(b) are not intended to be affected by Rule 23, as amended.”50 Though this note has since been used by courts to distinguish collective actions as separate mechanisms than class actions,51 commentators have speculated that the advisory committee merely believed it lacked the authority to modify the FLSA via the Federal Rules.52 Regardless, the change does not, on its own, require courts to retreat from the position that § 216(b) is essentially a pre-1966 class action. The Fischer-aligned courts make much of the fact that Congress has revised § 216 several times since 1966 and taken no steps to align its language with Rule 23.53 However, courts should be reluctant to rely on legislative inaction to form conclusions as “‘several equally tenable inferences’ may be drawn from such inaction.”54 Although on their face § 216(b) and Rule 23 may “bear little resemblance to each other”55 today, this alone is no reason to hold that BMS should apply to one and not the other, and the clear overlap in their history indicates there is good reason to treat the two alike.

Moreover, like class actions, FLSA collective actions are singular suits that commence “under one common complaint alleging the same common claim, and continue under that same complaint until either final judgment or until the court determines that the plaintiffs are too heterogeneous.”56 Thus, Fisher-aligned courts are mistaken when they argue that while Rule 23 class actions are opt out by default and “representative” in nature, opt in collective actions are not representative.57 First, just because plaintiffs are required to opt in to FLSA collective actions does not make these suits any less representative than class actions.58 And second, there is also a procedural mechanism by which federal courts must “certify” collective actions, which should similarly resolve individualized personal jurisdiction concerns.59

Section 216(b) actions are both representative and have necessary procedural safeguards. Section 216(b) demands that all plaintiffs in FLSA collective actions be “similarly situated.”60 Most courts use a two-step process to guarantee “similarly situated” plaintiffs.61 At step one, “the named plaintiff’s burden is usually to make either ‘substantial allegations’ or a ‘modest factual showing’ that similarly situated employees exist.”62 At step two, post-discovery, the named plaintiff is required to “meet a heavier burden of proof” and demonstrate that those employees who chose to opt in are actually similarly situated (e.g., in job title, location, and working conditions).63 This step two analysis is greatly similar to Rule 23’s commonality and predominance requirements.64 In fact, Judge Posner noted that “there isn’t a good reason to have different standards for the certification” of class and collective actions at this second step, and that “the case law has largely merged the standards.”65 Thus, it is simply not true that § 216(b) collective actions lack the relevant Rule 23 procedural safeguard similar to that of Rule 23: a certification process by which the lead plaintiff attains the right to represent the class (even if only a Rule 23 class also thereby “acquires an independent legal status” where the absent class parties are not full parties).66 Collective actions, like class actions and unlike mass actions, undertake a rigorous certification process to ensure a cohesive single suit is brought before the court and against the defendant.

Unpersuaded by these points, the Fischer-aligned courts also argue “Rule 23 . . . contains important post-certification protections that are notably absent in § 216(b).”67 While in class actions “the court is authorized to . . . protect class members,”68 in FLSA collective actions each claimant is “able to exercise a certain degree of individualized control,”69 including “the right to be present in court to advance”70 their own claim. But this ignores that class action members also have the ability to appear in court with their own representation.71 At bottom, “FLSA opt-in plaintiffs are no more individualized than their Rule 23 counterparts, and both sets of plaintiffs lack the markers of individuality that warranted judicial intervention in BMS.”72

Furthermore, the FLSA’s goals align with those of Rule 23. The FLSA has two main purposes: “(1) enforcement (by preventing violations and letting employees pool resources when seeking relief); and (2) efficiency (by resolving common issues in a single action).”73 These twin goals align with the regulatory and procedural goals (or at least the effects) of Rule 23.74 Judge Posner has articulated “that Rule 23’s goal of ‘promoting efficiency’ [is] ‘as relevant to collective actions as to class actions.’”75 But if BMS were to require federal courts to find jurisdiction over every FLSA opt-in plaintiff in accordance with the Fourteenth Amendment, it would “balkaniz[e] FLSA collective actions into inefficient state-by-state litigation . . . [and] undermine Congress’s creation of a unified remedial statute” that allows for similarly situated individuals to join together to sue their employer.76 The Supreme Court itself has held that “[t]he broad remedial goal of the [FLSA] should be enforced to the full extent of its terms.”77 Moreover, the FLSA repeatedly references employees and enterprises engaged in “commerce,” which it separately defines as “among the several States or between any State and any place outside thereof.”78 This language indicates “Congress expected that collective actions under the FLSA would remedy the misconduct of multi-state employers through the efficient procedural mechanism of aggregate litigation.”79 It is for these reasons that from 1938 to 2017, when BMS was decided, “no court questioned whether opt-in plaintiffs needed to individually establish personal jurisdiction over the defendant.”80 BMS’s application to FLSA collective actions frustrates Congressional intent by “fracturing . . . FLSA collective litigation into multiple separate lawsuits,” which could “lead to potentially disparate judgments” and “risk burdening the federal courts with duplicative work.”81 Recognizing this, some Fischer-aligned courts and many academics have urged Congress to amend the FLSA to realign its application and intent.82

Beyond comparing FLSA collective actions to class actions, independent FLSA-specific arguments, including their relation to mass actions like BMS, further support the conclusion that BMS should not apply. Like class actions, “FLSA collective actions involve one suit in which a plaintiff may represent other class members,”83 not separately filed suits joined for trial with a potential to later be dispersed (like mass actions).84 Accordingly, Fischer-aligned courts are mistaken when they assert that collective actions parallel mass actions as both are a “species of joinder” that aggregate “heavily individualized” claims.85 Moreover, it is inaccurate to argue the term “party plaintiffs” in the FLSA indicates that, like mass actions, all plaintiffs are named parties over whom the court must show personal jurisdiction.86 As discussed above, the original 1938 FLSA allowed for representative plaintiffs with no stake in the outcome.87 The language “party plaintiffs” is merely meant “to distinguish [opt-in members] from unions, who would not otherwise be parties to the suit.”88

Finally, the Fourteenth Amendment concerns raised in BMS should not affect FLSA collective actions in federal court. In BMS, the Court expressly noted that its decision to restrict state courts’ power to exercise personal jurisdiction was based in principles of federalism and state sovereignty.89 The Court “repeatedly emphasizes that the decision is grounded in the Fourteenth Amendment’s limits on the power of state courts”90 and left “open the question [of] whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.”91 Those federalism and state sovereignty concerns are not relevant to FLSA collective actions in federal court. With collective actions, an employer “will be subject to the same law (the FLSA) no matter where it faces suit.”92 BMS’s constitutional underpinnings are accordingly inapplicable. Overall, BMS “was limited in at least three respects that distinguish it from” FLSA collective actions: “[i]t applied to state courts, not federal courts; it applied to state-law claims, not federal claims; and it applied to individual actions, not collective actions.”93

The above arguments illustrate that federal courts should only be required to exercise personal jurisdiction over the named plaintiff’s claim in FLSA collective actions. However, even if federal courts were required to exercise personal jurisdiction over all opt-in plaintiffs’ claims, BMS still does not restrict courts’ ability to join out-of-state plaintiffs. A close reading of Rule 4(k) demonstrates that once personal jurisdiction is found over the FLSA named plaintiff’s claim, any new claims must only comply with Fifth Amendment, not Fourteenth Amendment, due process requirements. This distinction is important. While the Fourteenth Amendment requires a plaintiff show their claims “arise out of or relate to” defendant’s contacts with a particular state,94 the Fifth Amendment only requires a plaintiff “show that the defendant has adequate contacts with the United States as a whole.”95

As previously discussed, the text of Rule 4(k) enumerates three pathways “for effectively serving a summons on a defendant in federal court, thereby establishing personal jurisdiction over the defendant”: establishing general jurisdiction, initiating a joinder, or satisfying a nationwide service of process statute.96 But this is different from directly constraining the personal jurisdiction of federal courts.97 It is true that absent a nationwide service provision,98 4(k)(1)(A) may require a federal court to look to a state’s long-arm statute to initially serve a summons and thereby establish personal jurisdiction over a defendant.99 This inherently constrains a federal court’s exercise of personal jurisdiction to the Fourteenth Amendment limitations of the courts of the state in which it sits.100 However, once an initial summons “has been properly served and personal jurisdiction has been established,” nowhere does the text of Rule 4 indicate that a federal court’s jurisdiction remains restrained.101 The advisory committee’s notes to Rule 4 plainly state that “[s]ervice of summons under this subdivision does not conclusively establish the jurisdiction of the court over the person of the defendant.”102 In other words, service of summons via Rule 4(k) is a wholly separate condition required to establish the bounds of a court’s personal jurisdiction but it does not itself determine the bounds of that court’s personal jurisdiction. This is bolstered by Federal Rule of Civil Procedure 82, which states that “[t]hese rules do not extend or limit the jurisdiction of the district courts.”103 Thus, Rule 4 only regulates “initial service [of summons]” by the original named plaintiff, which thereby establishes personal jurisdiction over a defendant, but Rule 4 does “not [regulate] jurisdictional limitations after service.”104

Fischer-aligned courts disagree. They argue that because the FLSA has no explicit nationwide service provision, Rule 4(k)(1)(A) directly regulates courts’ personal jurisdiction over all opt-in plaintiffs, not just service of the initial summons.105 This would mean that the Fourteenth Amendment, through 4(k)(1)(A), imposes the same restrictions on opt-in plaintiffs to collective actions that BMS created for out-of-state residents in mass actions.106 But if Rule 4(k) were to regulate personal jurisdiction directly in this way, it might “render Rule 4(k) invalid as exceeding the rulemaking authority Congress has delegated to the courts under the Rules Enabling Act” (“REA”).107 The REA “authorized only ‘rules of practice and procedure and rules of evidence’ that do ‘not abridge, enlarge or modify any substantive right.’”108 If Rule 4 regulates only service of process (i.e., procedure, not jurisdiction), as the Waters Court argues, there is no REA conflict.109 Furthermore, if Rule 4 were to apply to all opt-in plaintiffs individually, as Fischer-aligned courts state, then so must all of Rule 4’s other requirements. But how, for example, could an opt-in plaintiff comply with 4(m) by effecting “service within 90 days of the filing of the complaint” when “opt-in members typically would not even be notified that the lawsuit exists until much later?”110 This result would be nonsensical.

The better reading of Rule 4(k), as Waters found, is that it “does not limit a federal court’s authority with respect to out-of-state opt-in members of an FLSA collective action.”111 Once the named plaintiff has served “a summons in accordance with state or federal law,” thereby establishing the federal court’s personal jurisdiction over the defendant, only the Fifth Amendment limits the reach of the court with respect to opt-in plaintiffs.112 Pursuant to “the Due Process Clause of the Fifth Amendment, a federal court may constitutionally exercise personal jurisdiction over any person that has minimum contacts with the United States as opposed to any particular state or states within it.”113 Given that § 216(b) includes no additional requirement to make opt-in plaintiffs parties,114 once an opt-in plaintiff has filed consent, nothing should restrict a federal court’s ability to join their claims to an FLSA collective action. BMS’s Fourteenth Amendment imposition on nonresident plaintiffs’ claims in mass actions does not apply to nonresident opt-in plaintiffs in collective actions.115

In conclusion, three main lines of reasoning demonstrate that federal courts do not need to exercise personal jurisdiction over out-of-state opt-in plaintiffs in FLSA collective actions: (1) FLSA collective actions are of a similar representative and procedural nature to Rule 23 class actions, (2) FLSA collective actions have important differences from mass actions like that of BMS, and (3) a proper reading of Rule 4(k) shows that BMS’s Fourteenth Amendment concerns do not apply. Together, these avenues can help restore FLSA collective actions to their proper use as a valuable tool to help workers challenge violations to wage and hour laws.

* Isabelle Wechsler is a J.D. Candidate (2025) at New York University School of Law. This Contribution was adapted from a final paper for the course Class Actions, taught by the Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. 582 U.S. 255 (2017).

2. Id. at 264 (internal citations omitted).

3. Id. at 268 (Sotomayor, J., dissenting).

4. See generally Adam Drake, The FLSA’s Bristol-Myers Squibb Problem, 89 Fordham L. Rev. 1511 (2021) (quoting 29 U.S.C. § 216(b)) (discussing BMS’s impact on FLSA collective actions).

5. Id. at 1524.

6. See, e.g., Mussat v. IQVIA, Inc., 953 F.3d 441, 447–48 (7th Cir. 2020); Lyngaas v. Curaden AG, 992 F.3d 412, 433 (6th Cir. 2021); Fischer v. Fed. Express Corp., 42 F.4th 366, 374 (3d Cir. 2022), cert. denied, 143 S. Ct. 1001 (2023); In re Actos Antitrust Litig., 2024 WL 4345568, at *7 (S.D.N.Y. Sept. 30, 2024).

7. See, e.g., Canaday v. Anthem Cos., Inc., 9 F.4th 392, 397 (6th Cir. 2021); Vallone v. CJS Sols. Grp., LLC, 9 F.4th 861, 866 (8th Cir. 2021); Fischer, 42 F.4th at 370–71; Vanegas v. Signet Builders, Inc., 113 F.4th 718, 724–25 (7th Cir. 2024).

8. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (quoting Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945)).

9. Int’l Shoe, 326 U.S. at 316–17.

10. Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 919 (2011). Historically, general jurisdiction has only been found in the place where a defendant corporation is incorporated or headquartered. BNSF Ry. Co. v. Tyrrell, 581 U.S. 402, 413 (2017). However, the Supreme Court’s recent decision in Mallory v. Norfolk may have altered general jurisdiction jurisprudence by upholding a state statute that compelled businesses to consent to personal jurisdiction within a state as a mere condition of registering to do business there. 600 U.S. 122 (2023).

11. Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 362 (2021) (internal citations omitted).

12. Waters v. Day & Zimmermann NPS, Inc., 23 F.4th 84, 93 (1st Cir. 2022) (emphasis removed), cert. denied, 142 S. Ct. 2777 (2022).

13. Fed. R. Civ. P. 4(k)(1)(A)–(C) (emphasis added).

14. Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 105 (1987).

15. See Walden v. Fiore, 571 U.S. 277, 283 (2014).

16. Id.

17. BMS, 582 U.S. at 258.

18. Id. at 259.

19. Id. at 265.

20. Id. at 258. General jurisdiction over the defendant was also lacking as Bristol-Myers Squibb “is incorporated in Delaware and headquartered in New York.” Id.

21. Id. at 263 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980)).

22. Id. at 268–69 (emphasis added).

23. Id. at 277 (Sotomayor, J., dissenting).

24. Daniel Wilf-Townsend, Did Bristol-Myers Squibb Kill the Nationwide Class Action?, 129 Yale L.J. Forum 205, 208 (2019). As of late 2023, only two district court cases finding that BMS does apply to absent class members in federal class actions had not been otherwise abrogated. Jonathan Edelman & Meegan Hollywood, All Is Not Lost: Personal Jurisdiction in A Post-BMS World, 38 Fall Antitrust Mag. at 102–03 (noting how lower courts have split in three different ways). Even in those districts, later cases have since disagreed. Compare Carpenter v. PetSmart, Inc., 441 F. Supp. 3d 1028, 1037 (S.D. Cal. 2020), and Stacker v. Intellisource, LLC, No. 20-2581, 2021 WL 2646444, at *8–10 (D. Kan. June 28, 2021) (finding that federal courts do need personal jurisdiction over out-of-state absent class members), with Carranza v. Terminix Int’l Co. Ltd. P’ship, 529 F. Supp. 3d 1139, 1146 (S.D. Cal. 2021), and Confer v. Milwaukee Elec. Tool Corp., No. 2:23-cv-2028, 2023 WL 4420220, at *4 (D. Kan. July 10, 2023) (finding that federal courts do not need personal jurisdiction over out-of-state absent class members).

25. Wilf-Townsend, supra note 24, at 208. See also In re Actos Antitrust Litig., No. 13-CV-9244, 2024 WL 4345568, at *7 (S.D.N.Y. Sept. 30, 2024) (discussing Mussat, 953 F.3d at 447–48, Lyngaas, 992 F.3d at 433–36, and Fischer, 42 F.4th at 375) (noting in dicta that the only “two courts of appeals to directly address the issue—the Seventh and Sixth Circuits—have each concluded that [BMS] does not require unnamed class members to establish personal jurisdiction” and the “Third Circuit has similarly agreed”). See also generally Edelman & Hollywood, supra note 24 (noting how lower courts have split in three different ways).

26. Mussat, 953 F.3d at 447 (discussing Taylor v. Sturgell, 553 U.S. 880 (2008), which “stressed the importance of class certification as a pre-requisite for binding a nonparty (including an unnamed class member) to the outcome of a suit”). In order for a class to be certified, it must satisfy a plethora of requirements, which vary based upon class type but include at a minimum: the class is so numerous that joinder is impracticable; there are common questions of law or fact; the named representative is typical of the class; the representative parties will adequately represent the class. Fed. R. Civ. P. 23(a)(1)-(4).

27. Lyngaas, 992 F.3d at 435.

28. Fed. R. Civ. P. 23(b)(3).

29. See, e.g., Lyngaas, 922 F.3d at 435 (articulating the important procedural differences between mass actions and class actions that lead to their conclusion that defending against the claims of out-of-state absent class members is not a violation of defendants’ due process rights).

30. See Canaday, 9 F.4th at 403; Vallone 9 F.4th at 865–66; Fischer 42 F.4th at 380; Vanegas, 113 F.4th at 727.

31. Fischer, 41 F.4th at 370–71.

32. Id.

33. Waters, 23 F.4th at 97–99.

34. Id. at 91.

35. See Canaday, 9 F.4th at 404 (Donald, J., dissenting); Vanegas, 113 F.4th at 731 (Rovner, J., dissenting); Waters, 23 F.4th at 100 (Baron, J., dissenting).

36. Christpher M. Pardo & Theanna Bezney, Justice on the Move: The Impact of Bristol-Myers Squibb on FLSA Forum-Shopping, Nat’l L. Rev. (Nov. 14, 2024), https://natlawreview.com/article/justice-move-impact-bristol-myers-squibb-flsa-forum-shopping.

37. See generally Appellants’ Brief, Fischer v. Federal Express Corp., 42 F.4th 366 (3d Cir. 2022), 2021 WL 3140608.

38. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013).

39. Vanegas, 113 F.4th at 734 (Rovner, J., dissenting).

40. 29 U.S.C. § 216(b).

41. See Vanegas, 113 F.4th at 738 (Rovner, J., dissenting) (“Moreover, the FLSA requires that an opt-in plaintiff do nothing more than file his or her consent to join the collective.”).

42. 29 U.S.C. § 256 (emphasis added); see also William C. Jhaveri-Weeks & Austin Webbert, Class Actions Under Rule 23 and Collective Actions Under the Fair Labor Standards Act: Preventing the Conflation of Two Distinct Tools to Enforce the Wage Laws, 23 Geo. J. on Poverty L. & Pol’y 233, 240–41 (2016).

43. Jhaveri-Weeks & Webbert, supra note 42 at 238–39.

44. Vanegas, 113 F.4th at 725.

45. H.R Rep. No. 80-326, at 14 (1947) (Conf. Rep.) (“[For] . . . purposes [of the statute of limitations], an action. . . shall be considered to be commenced when the complaint is filed . . . . An exception to the general rule is provided in the case of a collective or class action commenced on or after the date of enactment of the bill under the Fair Labor Standards Act of 1938, as amended . . . . In the case of such a collective or class action (a collective action being an action brought by an employee or employees for and in behalf of themselves and other employees similarly situated, and a class action being an action described in Rule 23 of the Federal Rules of Civil Procedure) the action shall be considered to be commenced . . . .” (emphasis added)).

46. Jhaveri-Weeks & Webbert, supra note 42, at 240–41.

47. Vanegas, 113 F.4th at 725 (internal citations omitted).

48. See Dahl v. Petroplex Acidizing, Inc., No. 22-252, 2024 WL 22087, at *12 (D.N.M. Jan. 2, 2024); Jhaveri-Weeks & Webbert, supra note 42, at 240.

49. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989) (emphasis added).

50. Fed. R. Civ. P. 23(b)(3) advisory committee’s note to 1966 amendment.

51. See Jhaveri-Weeks & Webbert, supra note 42, at 242, 250 (“Following the adoption of modern Rule 23 [in 1966], courts concluded that Section 216(b) is a separate procedural device.”).

52. Id. at 237–38.

53. See, e.g., Fischer, F.4th at 379.

54. See Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (quoting United States v. Wise, 370 U.S. 405, 411 (1962)).

55. Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 519 (2d Cir. 2020).

56. Vanegas, 113 F.4th at 736 (Rovner, J., dissenting); see also Hoffmann-La Roche, 493 U.S. at 170 (noting that collective actions promote judicial efficiency by creating “one proceeding” for resolving “common issues of law and fact arising from the same alleged discriminatory activity”).

57. Canaday, 9 F.4th at 402.

58. Dahl, 2024 WL 22087, at *12 (citing Canaday, 9 F.4th at 413 (Donald, J., dissenting) for the proposition that the FLSA’s 1947 amendment to opt in actions was intended to eliminate “spurious representative actions, not eliminate the representative nature of collective actions altogether”).

59. 29 U.S.C. § 216(b).

60. Id. (“An action to recover . . . may be maintained against any employer . . . by one or more employees for and in behalf of himself or themselves and other employees similarly situated.” (emphasis added)).

61. Ronahn Clarke, Collective Disagreement: The Uneasy Interaction of the FLSA and FRCP 4(k) After Bristol-Myers Squibb, 109 Cornell L. Rev. 735, 739–40 (2024).

62. Id. at 740.

63. Id.

64. See Jhaveri-Weeks & Webbert, supra note 42, at 250–52.

65. Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772 (7th Cir. 2013). However, other courts have been more hesitant than Judge Posner to state that these standards are exactly the same. Jhaveri-Weeks & Webbert, supra note 42, at 252

66. Fischer, 42 F.4th at 374 (quoting Genesis, 596 U.S. at 75); see also Vanegas, 113 F.4th at 724 (arguing that “[n]othing in [§ 216(b)] ensures adequate representation” and that in an FLSA action an opt-in employee’s “interest merges into the suit – quite unlike the Rule 23 process”).

67. Fischer, 42 F.4th at 377.

68. Id. (internal citations omitted). See Fed. R. Civ. P. 23(e), which requires that the court find that any class settlement is “fair, reasonable, and adequate” before approving said settlement.

69. Clarke, supra note 61, at 747.

70. Vanegas, 113 F.4th at 725.

71. Fed. R. Civ. P. 23(c)(2)(b)(iv).

72. Vanegas, 113 F.4th at 737 (Rovner, J., dissenting).

73. Waters, 23 F.4th at 97 (internal citations omitted).

74. See David Marcus, The History of the Modern Class Action, Part I: Sturm Und Drang, 1953-1980, 90 Wash. U. L. Rev. 587, 593–94 (2013) (discussing the debate over whether Rule 23’s purpose is regulatory or procedural).

75. Jhaveri-Weeks & Webbert, supra note 42, at 253 (quoting Espenscheid, 705 F.3d at 772).

76. Brief for Law Professors in Support of Appellee and Affirmance at 18, Vanegas v. Signet Builders, Inc., 113 F.4th 708 (7th Cir. 2024) (No. 23-2964), 2023 WL 9008632, at *18. This brief, cited to heavily throughout this Contribution, was written by Amici Professors Helen Hershkoff, John Sexton, and Arthur Miller, all highly respected individuals in the world of civil procedure.

77. Hoffman-La Roche, 493 U.S. at 173 (emphasis added).

78. See 29 U.S.C. §§ 203(b), 206, 207.

79. Brief for Law Professors in Support of Appellee and Affirmance, supra note 76, at *18.

80. Vanegas, 113 F.4th at 733 (Rovner, J., dissenting); see also Brief for Law Professors in Support of Appellee and Affirmance, supra note 76, at *19 (noting that prior to BMS, “no court had suggested that the procedure was available only to individuals injured by the defendant’s conduct in the state where the district court is located”).

81. Dahl, 2024 WL 22087, at *12; see also Brief for Law Professors in Support of Appellee and Affirmance, supra note 76, at *19 (noting that BMS’s application to collective actions, “if adopted, would undermine Congress’s plain intent in the FLSA to provide for collective actions that include all similarly situated employees”).

82. See, e.g., Bone v. XTO Energy, Inc., 561 F. Supp. 3d 1132, 1138 (D.N.M. 2021); Drake, supra note 4, at 1548 (arguing that “to best fulfill the FLSA’s initial purpose, Congress should provide for nationwide service of process in § 216”); Clarke, supra note 61, at 737 (“ultimately endors[ing that Congress] amend[ ] the FLSA to provide for nationwide service of process”).

83. Dahl, 2024 WL 22087, at *8.

84. Vanegas, 113 F.4th at 736 (Rovner, J., dissenting).

85. Fischer, 42 F.4th at 378 (internal quotations omitted).

86. Id.; see also Vanegas, 113 F.4th at 724; Canaday, 9 F.4th at 397.

87. Hoffmann-La Roche, 493 U.S. at 173.

88. Vanegas, 113 F.4th at 736 (Rovner, J., dissenting).

89. BMS, 582 U.S. at 263.

90. Brief for Law Professors in Support of Appellee and Affirmance, supra note 76, at *6.

91. BMS, at 268–69 (emphasis added).

92. Vanegas, 113 F.4th at 734 (Rovner, J., dissenting).

93. Brief for Law Professors in Support of Appellee and Affirmance, supra note 76, at *3.

94. Burger King, 471 U.S. at 472 (internal citations omitted).

95. See United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).

96. Waters, 23 F.4th at 93 (emphasis added).

97. Brief for Law Professors in Support of Appellee and Affirmance, supra note 76, at *4 (“Federal Rule of Civil Procedure 4 does not subject a federal court’s exercise of personal jurisdiction over opt-in members of an FLSA collective action to the Fourteenth Amendment limits that would apply to a state court.”).

98. See Fed. R. Civ. P. 4(k)(1)(C).

99. Waters, 23 F.4th at 94.

100. Id.

101. Id. at 93–94.

102. Fed. R. Civ. P. 4(k)(e) advisory committee’s note (emphasis added).

103. Fed. R. Civ. P. 82; see also Waters, 23 F.4th at 94; Mussat, 953 F.3d at 448.

104. Waters, 23 F.4th at 98–99 (emphasis added).

105. See Canaday, 9 F.4th at 400 (“The federal court’s authority to assert personal jurisdiction over the defendant with respect to the nonresident plaintiffs’ claims remains constrained by Civil Rule 4(k)(1)(A)’s territorial limitations.”); Vanegas, 113 F.4th at 729 (“[W]hen the court asserts its jurisdiction through Rule 4(k)(1)(A) service, all it gets is what a state court would have.”); Fischer, 42 F.4th at 387 (“Where no federal law authorizes the exercise of personal jurisdiction, plaintiffs must satisfy the requirements of Rule 4(k)(1)(A), which can be used to establish personal jurisdiction over a defendant who is subject to the jurisdiction of a state’s courts. Because state courts are limited by the Fourteenth Amendment, so too are federal courts relying on Rule 4(k)(1)(A).”).

106. Vanegas, 113 F.4th at 726.

107. Scott Dodson, Rule 4 and Personal Jurisdiction, 99 Notre Dame L. Rev. 1, 4 (2023).

108. Id. at 4–5 (quoting 28 U.S.C. § 2072 (2018)).

109. See id. at 32 (noting that, in the author’s view, “4(k) doesn’t in fact affect the scope of personal jurisdiction, so even were amenability to personal jurisdiction a substantive right, Rule 4(k) wouldn’t abridge it”).

110. Brief for Law Professors in Support of Appellee and Affirmance, supra note 76, at *16–17.

111. Id. at 11.

112. Waters, 23 F.4th at 96; see also Brief for Law Professors in Support of Appellee and Affirmance, supra note 76, at *4–5 (“[I]n the context of a collective action under federal law, Rule 4’s requirements apply only when the named plaintiff seeks to secure personal jurisdiction over the defendant when she initiates the suit. Once the summons and complaint have been served in compliance with Rule 4, whether the case may proceed as a collective action depends only on whether the requirements of the FLSA are satisfied. The Rules impose no additional requirements for the assertion of personal jurisdiction over the defendant with respect to the claims of opt-in plaintiffs in a collective action, who are not required to serve a summons or complaint.” (emphasis removed)).

113. Brief for Law Professors in Support of Appellee and Affirmance, supra note 76, at *9–10 (citing Repub. of Argentina v. Weltover, Inc., 504 U.S. 607, 619–20 (1992) as an example of applying this analysis).

114. Id. at 15.

115. Although this may increase worries of forum-shopping, “nonjurisdictional controls help mitigate” any concerns. Dodson, supra note 107, at 42–43 (discussing that other constraints such as judicial discretion, venue, and the FLSA’s similarly situated requirements constrain forum-shopping evils).