Antitrust Law Daily Wrap Up, FRANCHISING & DISTRIBUTION—2d Cir.: District court lacked jurisdiction over out-ot-state plaintiffs in FLSA collective action, (May 8, 2026)

By Ronald Miller, J.D.

Nothing in the record supported the district court’s personal jurisdiction over the claims of the Connecticut and New York distributors against Bimbo.

The Second Circuit joined the majority of its sister circuits in holding that a district court’s jurisdiction did not reach out-of-state plaintiffs’ FLSA claims against an out-of-state defendant that has been properly subject to the court’s jurisdiction with respect to similar claims advanced by in-state plaintiffs. After the plaintiffs filed a collective action under the FLSA, the district court determined that it had personal jurisdiction over potential plaintiffs who resided in Connecticut and New York. Relying on the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, the appeals court ruled that the district court could not similarly exercise personal jurisdiction over out-of-state plaintiffs’ FLSA claims (Provencher v. Bimbo Foods Bakeries Distribution LLC, No. 24-3112-cv (2d Cir. May 4, 2026)).

The plaintiffs in this action deliver baked goods for the employer, Bimbo Foods. On a typical day, they arrive at Bimbo’s Vermont warehouse, load their vehicles with Bimbo’s products, drive to Bimbo’s Vermont retailers, and stock the shelves there with those products. They routinely work over 40 hours a week but do not receive overtime compensation because Bimbo classifies them as independent contractors, not as employees.

FLSA collective action. On October 28, 2022, plaintiffs brought a collective action under the FLSA against Bimbo. On January 23, 2024, the plaintiffs moved to conditionally certify the FLSA collective action and to permit them to notify similarly situated distributors in Vermont, Connecticut, and New York about the action and the opportunity to opt into it.

Bimbo opposed that motion arguing that the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017), prevented the district court from exercising personal jurisdiction over it with respect to any claims that distributors outside Vermont might assert against it. The plaintiffs distinguished Bristol-Myers, which concerned a state court’s adjudication of state law claims, as inapplicable to the current action, which involved federal claims in a federal court.

The district court agreed with plaintiffs. It held that Bimbo had sufficient contacts with Vermont to justify the court’s exercise of personal jurisdiction over it. At Bimbo’s request, the district court stayed its decision and certified the dispute over personal jurisdiction for an interlocutory appeal.

Jurisdiction. This case concerns a district court’s exercise of personal jurisdiction over out-of-state plaintiffs’ FLSA claims against an out-of-state defendant that has been properly subject to the court’s jurisdiction with respect to similar claims advanced by in-state plaintiffs.

A district court may exercise personal jurisdiction over an out-of-state defendant only if (1) the plaintiff has properly served “process upon the defendant”; (2) a state or federal statutory basis for personal jurisdiction “renders such service of process effective”; and (3) the exercise of personal jurisdiction “comport[s] with constitutional due process principles.”

A properly served corporate defendant may be subject to two types of personal jurisdiction: specific (or “case-linked”) jurisdiction, which requires that the plaintiff’s “cause of action... arise[] out of the defendant’s activities in a state,” or general (or “all purpose”) jurisdiction, which “permits a court to adjudicate any cause of action” against the defendant. Where, as here, plaintiffs are relying on specific jurisdiction, they must make the requisite showing “with respect to each claim asserted.”

Out-of-state plaintiffs. Bimbo did not challenge the district court’s exercise of specific jurisdiction to adjudicate the FLSA claims of plaintiffs or any Vermont-based distributors who opt into the litigation. It argued, however, that the district court lacked a statutory basis for personal jurisdiction over similar FLSA claims that distributors outside Vermont may assert. The Second Circuit agreed.

Service of process. The original FLSA, enacted in 1938, did not provide for nationwide service of process, and to this day, the FLSA requires plaintiffs to bring their case “in any Federal or State court of competent jurisdiction.” 29 U.S.C. § 216(b). “In the absence of a federal statute specifically directing otherwise,” the district court can exercise only as much personal jurisdiction as is granted to its state counterpart. Vermont’s long-arm statute authorizes Vermont state courts to exercise personal jurisdiction “over nonresident defendants to the full extent permitted by the Due Process Clause” of the Fourteenth Amendment. That constitutional limitation thus also charts the boundaries of the district court’s jurisdictional power.

The Supreme Court delineated those boundaries in Bristol-Myers. In Bristol-Myers, the Supreme Court held that a California court lacked personal jurisdiction over the nonresident plaintiffs’ claims under “settled principles regarding specific jurisdiction.” Because the nonresident plaintiffs did not allege that they obtained a drug, or suffered or received treatment for the injuries it caused, in the state of California, their claims did not “arise out of or relate to” Bristol-Myers’s contacts with California.

Here, nothing in the record suggested that Bimbo’s Connecticut or New York distributors suffered FLSA violations arising from Bimbo’s contacts with Vermont. The appeals court rejected the plaintiffs’ argument that Bimbo’s use of the same distribution protocol across the three states supplied a nexus between the in-state and out-of-state distributors. According to the appeals court, the uniformity of the corporate practice had no jurisdictional significance. It may give rise to similar theories or claims but cannot transform out-of-state dealings into in-state contacts.

Fifth Amendment’s Due Process Clause. On appeal, the plaintiffs raised three arguments to avoid the conclusion of Bristol-Myers. First, plaintiffs argued that Bristol-Myers is distinguishable because it concerned the Fourteenth rather than Fifth Amendment. While Congress could authorize district courts to exercise personal jurisdiction more broadly under the Fifth Amendment, it has not done so in a statute or rule that applies to this case. Thus, the federal district court’s in personam jurisdiction was subject to the same constraint as the state court, which is bound by the Fourteenth Amendment.

Rule 23 class action analogy. Second, the plaintiffs urged the appeals court to analogize FLSA collective actions to two forms of class actions: (1) the modern class action under Rule 23(b)(3), and (2) the now-obsolete “spurious class action” once recognized in the original Rule 23(a)(3). The analogy of FLSA collective actions to modern Rule 23(b)(3) class actions is foreclosed by Second Circuit precedent.

There is a sufficient contrast between the unity created by a Rule 23(b)(3) class action and the loose form of an FLSA collective action. The nature of a class claim is sufficiently distinguishable from an FLSA collective action that the answer to that question does not control the outcome in this case. In contrast to a class action, an FLSA collective action remains a mosaic of individual claims even after conditional certification, which “does not produce a class with an independent legal status.” Because each FLSA plaintiff’s personal interests remain front and center, the jurisdictional inquiry revolves around individual claims. Thus, the district court’s proper exercise of personal jurisdiction over the Vermont plaintiffs’ FLSA claims did not sweep in those of the out-of-state distributors.

“Spurious class action”. A spurious class action was one of the three types of class actions described in the original Rule 23. Under that rule, when “persons constituting a class [we]re so numerous as to make it impracticable to bring them all before [a] court,” they could pursue a spurious class action, asserting “several” rights “affected by a common question” and seeking “common relief.” The Second Circuit has recognized that the FLSA authorizes “a representative or class action – of the so-called ‘spurious’ form, not binding upon nonappearing parties.”

But that similarity did not advance plaintiffs’ theory that opt-in FLSA plaintiffs need not independently demonstrate personal jurisdiction, because no authority from the era of the original Rule 23 supported the proposition that intervenors in a spurious class action did not have to do so, the court found.

The design of the spurious class action mirrors modern joinder and consolidation mechanisms more than it does the true class action. If the spurious class action were alive today, Bristol-Myers’s mandate of claim-by-claim assessment of specific jurisdiction would apply there with equal force. Thus, the plaintiffs’ reliance on the analogy to class actions–genuine or spurious–was unavailing.

Service of a summons. Finally, the plaintiffs argued that Rule 4 governs solely the “service of a summons,” not “the jurisdiction of the federal courts after a summons has been served.” According to the plaintiffs, because Bimbo was properly served with a summons, the later-added opt-in plaintiffs need not do so. Their claims are hence not subject to Rule 4(k)(1)(A)’s jurisdictional limitations.

However, the appeals court observed that that argument misunderstands Rule 4(k)’s role in a district court’s determination of its jurisdictional authority. “Service of process does not by itself confer personal jurisdiction over a defendant.” Rather, Rule 4-compliant service of process “is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.”

Because the district court must have authority over each claim it resolves, and the appeals court concluded that it does not as to the out-of-state plaintiffs’ claims, the original plaintiffs’ service of Bimbo for their claims under Rule 4 does not permit the district court to exercise personal jurisdiction over out-of-state plaintiffs’ claims.

Thus, the Second Circuit joined those sister circuits who hold that, before conditionally certifying an FLSA collective action and authorizing notification of potential plaintiffs who may opt in, a district court must ensure its personal jurisdiction over the defendant with regard to the claims of those to be notified. Because nothing in the record supported the district court’s personal jurisdiction over the claims of the Connecticut and New York distributors against Bimbo, the appeals court reversed and remanded.

The case is No. 24-3112-cv.

Judge: Lynch, G.

Attorneys: James D. Nelson (Morgan, Lewis & Bockius) for Bimbo Foods Bakeries Distribution LLC; Bimbo Bakeries USA, Inc. Scott Moriarity (Wanta Thome) for Arthur Provencher and Michael McGuire.

Companies: Bimbo Foods Bakeries Distribution LLC; Bimbo Bakeries USA, Inc.

Cases: FranchisingDistribution ConnecticutNews NewYorkNews VermontNews