Courts are still going both ways on applying Bristol-Myers Squibb to class actions. Two recent decisions highlight this split.
The first—and we’ll always start with the good news—comes out of the District of Massachusetts in Roy v. FedEx Ground Package System, Inc. There, the court held that Bristol-Myers Squibb applies to collective actions under the Fair Labor Standards Act (FLSA) and limited opt-in notices to drivers who worked in the forum state. In doing so, the court rejected the idea that FLSA actions are materially different from the mass tort action in Bristol-Myers Squibb. Although the court hedged a bit on whether Bristol-Myer would apply in every context, it quoted Chavez v. Church & Dwight Co. for the proposition that “[n]othing in Bristol-Myers suggests that its basic holding is inapplicable to class actions.”
Apart from its narrow (but important) application in the FLSA context, Roy aligns with the view that Bristol-Myers Squibb does not announce a limited rule, but rather defines what due process means in the context of personal jurisdiction. It joins these other 2018 decisions:
- Practice Management Support Services, Inc. v. Cirque du Soleil, Inc., 301 F. Supp. 3d 840 (N.D. Ill. 2018) (“It not clear how Practice Management can distinguish the Supreme Court’s basic holding in Bristol–Myers simply because this is a class action.”)
- Mussat v. IQVIA, Inc., 2018 WL 5311903 (N.D. Ill. Oct. 26, 2018) (“Whether it be an individual, mass, or class action, the defendant’s rights should remain constant.”)
But not all courts are in agreement. In Jones v. Depuy Synthes Products, Inc., one judge in the Northern District of Alabama declined to apply Bristol-Myers Squibb to a class action at the motion-to-strike stage. While the court in Jones disagreed with many of the arguments class-action plaintiffs have used to avoid Bristol-Myers Squibb (such as the assertion that Bristol-Myers Squibb does not apply to federal courts sitting in diversity), it ultimately concluded that, at least at the early stage of the case, Rule 23 provided adequate procedural safeguards for defendants’ due process rights.
Jones joins with two other cases refusing to apply Bristol-Myers Squibb in the class context:
- Hospital Auth. of Metro. Gov’t of Nashville v. Momenta Pharms., Inc., 2018 WL 6378457 (M.D. Tenn. Dec. 5, 2018)
- Dennis v. IDT Corp., 2018 WL 5631102 (N.D. Ga. Oct. 18, 2018)
From these cases, we see a new trend emerging: Many lower courts are taking a “wait and see” approach in addressing the applicability of Bristol-Myers Squibb. That approach was followed in Jones and also in In re Samsung Galaxy Smartphone Marketing and Sales Practices Litigation, where the court dismissed one plaintiff’s claims but also observed, “given that the law is still evolving in this area, the Court is willing to consider any developments that take place during the pendency of the stay [the court was ordering].” Thus, while defendants can and should continue to make early attacks on overbroad, multi-state putative classes, they should also recognize that courts may be more willing to apply Bristol-Myers Squibb to narrow the class at the class certification stage, rather than on the pleadings at the outset. Until the courts of appeal or the U.S. Supreme Court settle this issue, defendants should definitely continue to assert and preserve personal jurisdiction arguments, even if district courts defer consideration of those arguments at the pleading stage.
In the meantime, the battle over applying Bristol-Myers Squibb will shift to the courts of appeal, where we are watching for the first decisions to be handed down. Molock v. Whole Foods Market, currently on interlocutory appeal in the D.C. Circuit, is a likely early candidate. We continue to monitor these developments closely.