Exploring New Approaches to Unsettled Legal Questions

Tag: Class Actions

Bristol-Myers Squibb’s Impact on Collective Actions: Why the Tide Should Shift from Fischer and Towards Waters

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.

Understanding Issue Classes: A Case for Why They Should Be Used and How Best to Do It

by Rachel Greene*

Issue classes are a form of aggregate litigation wherein courts certify only specific claims or elements within those claims for class treatment. While issue classes have not always been a popular tool, plaintiffs’ attorneys today should take seriously the protections this device can afford their clients and consider pursuing issue classes over alternative aggregate litigation tools, such as multi-district litigation. This Contribution argues that issue classes should be a more widely used aggregate litigation device and outlines the mechanics of its use.

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