Takeaways

• The Ninth Circuit joins the solid majority of federal circuits in holding the U.S. Supreme Court’s Bristol-Myers decision applies to FLSA collective actions, thereby making it much harder for employees to forum shop when pursuing nationwide collective actions.
• However, the appellate panel preserved the circuit’s use of two-stage “conditional” certification of putative FLSA collective actions, which typically lets plaintiffs proceed on a collective basis based on a minimal showing they are similarly situated to other employees on whose behalf they seek to proceed.
• The court also held out the possibility that employees who may have binding arbitration agreements preventing them from proceeding with their claims in court could receive notice of a pending collective action.

Article

A recent decision by the U.S. Court of Appeals for the Ninth Circuit hit a trifecta of important legal procedures affecting litigation of Fair Labor Standards Act (FLSA) collective actions. Harrington v. Cracker Barrel Old Country Store, Inc., Nos. 23-15650, 24-1979 (July 1, 2025). The result was a partial win for employers and a growing split among the circuits that makes it harder to navigate these evolving procedural questions when defending such cases.

First: The Ninth Circuit held the U.S. Supreme Court’s Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017), applies to FLSA collective actions, which makes it harder for employees to forum shop when pursuing...

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