Harrington v. Cracker Barrel Old Country Store
In this case, employees of Cracker Barrel filed suit alleging that the company violated provisions of the Fair Labor Standards Act (FLSA) governing wages for tipped employees. The employees moved for certification of the case as a collective action on behalf of themselves and similarly situated workers who elected to opt in to the suit, as provided for in the FLSA. Opposing the motion, Cracker Barrel argued that, under the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court, the federal court in Arizona lacked personal jurisdiction over it with respect to claims of any members of a collective action whose claims arose outside Arizona. Rejecting that argument, the district court granted plaintiffs’ motion. The court also certified the ruling for interlocutory appeal to the Ninth Circuit, and the Ninth Circuit granted the petition for interlocutory appeal.
On appeal, Public Citizen, on behalf of law professors Helen Hershkoff, Arthur Miller, Alan Morrison, John Sexton, and Adam Steinman, filed a brief as amici curiae in support of the plaintiffs. The brief explains that Bristol-Myers addresses due process limits on the powers of state courts that do not apply to federal courts. In addition, we explain that, although Federal Rule of Civil Procedure 4, addressing service of process, incorporates some of the limits of the 14th Amendment’s Due Process Clause on state courts’ exercise of personal jurisdiction, the Rule 4 does not require opt-in plaintiffs in an FLSA case separately to serve a summons and a complaint, and does not support the company’s argument here. In a decision issued on July 1, 2025, the court of appeals held that the limits addressed in Bristol-Myers do apply in the FLSA context.
After the court of appeals decision, and now co-counseling with plaintiffs’ counsel, we filed a petition asking the Supreme Court to review the Ninth Circuit’s decision. The petition explains that the courts of appeals are divided on whether an out-of-state employee may opt-in to an FLSA collective action and that the Ninth Circuit’s decision contravenes the FLSA’s purposes by making it harder for injured employees collectively to challenge unlawful wage practices.The petition is pending.
In addition, Cracker Barrel sought Supreme Court review of a different issue: whether the district court had demanded a sufficient showing that members of the proposed collective action were “similarly situated” before authorizing plaintiffs to send notice of the action to employees who may be eligible to opt in. Opposing Cracker Barrel’s petition, we explained that Cracker Barrel did not present the issue of the relevant evidentiary burden to the Ninth Circuit and that the Ninth Circuit’s opinion accordingly does not address it. The brief further explains that the issue does not merit review in any event because the courts of appeals that have addressed it are broadly in alignment. That petition is pending as well.