Judge Defines Reach of Supreme Court Forum-Shopping Decision: Don Frederico Quoted in Massachusetts Lawyers Weekly

Non-resident employees can opt into FLSA class action

Excerpted from the June 25, 2020 issue of Massachusetts Lawyers Weekly

In denying a motion to dismiss out-of-state plaintiffs from a class action, a federal judge in Boston has ruled that a Supreme Court decision limiting forum-shopping in mass tort actions does not apply to divest a court of jurisdiction over non-resident plaintiffs alleging that a multistate employer violated the Fair Labor Standards Act (FLSA) by refusing to pay overtime.

The employer in the case, Day & Zimmerman NPS, made the motion to dismiss based on the Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of California.

In denying the motion to dismiss, the judge concluded that FLSA collective actions are more similar to class actions brought pursuant to Federal Rule of Civil Procedure 23 than the mass tort claims at issue in Bristol-Myers Squibb.

Pierce Atwood litigation and class action defense attorney Donald R. Frederico said that he was persuaded by the reasoning of the two contrary Massachusetts decisions the judge cited in his ruling. “U.S. District Court Judge Allison J. Burroughs and U.S. Magistrate Judge Katherine A. Robertson in separate decisions held that, under BMS, district courts may not exercise specific jurisdiction over the FLSA claims of non-resident employees.

“That’s because employees who wish to participate in FLSA collective actions must take the affirmative step of opting into the case, which makes them analogous to mass tort plaintiffs,” Frederico said.

He added, “The policy reasons cited by [Judge] Gorton for limiting the reach of BMS with respect to FLSA claims overlook the fact that plaintiffs retain the ability to bring nationwide claims in districts where defendants are incorporated or have their principal places of business.

“Nothing in BMS limits the nationwide reach of either FLSA collective actions or nationwide class actions where general jurisdiction applies,” he said.

Frederico argued that FLSA cases are not so different from the mass tort cases at issue in BMS. “In each case, the person has taken affirmative steps to participate in the litigation and may be bound by, or benefit from, the court’s decisions that affect their claims,” he said. “If the employee who opts into an FLSA case did not work in the forum state, and the practices that affected them did not occur in the forum state, they have no better contact with that state than the non-resident plaintiffs in BMS.”

The complete article by Pat Murphy can be found in the June 25, 2020 issue of Massachusetts Lawyers Weekly.