FedEx employees seek to preserve collective-action lawsuits over wages


Petitions of the week
A courier drops off a package at the Supreme Court

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Five years ago, the justices in Bristol-Myers Squibb v. Superior Court of California limited certain personal-injury lawsuits against businesses to residents of a single state. Since that 2017 decision, businesses have convinced state courts to cabin a host of lawsuits brought by out-of-state plaintiffs over out-of-state conduct. This week, we highlight cert petitions that ask the court to consider, among other things, whether Bristol-Myers Squibb also bars a federal court in one state from hearing collective-action claims against FedEx by employees in another state.

Christina Fischer worked as a FedEx “security specialist” in Pennsylvania for 10 years. Employees in Fischer’s role regularly worked more than 40 hours per week, but are classified by the shipping carrier as salaried employees exempt from overtime pay under the Fair Labor Standard Act of 1938. Arguing that she was ineligible for the Act’s overtime exemption, Fischer filed an FLSA collective action in federal district court in Pennsylvania seeking unpaid overtime from FedEx. Two security specialists in other states “opted in” to the collective action.

The district court agreed with FedEx that it only had authority, known as specific personal jurisdiction, to hear Fischer’s claim. The U.S. Court of Appeals for the 3rd Circuit affirmed. FedEx is not headquartered in Pennsylvania, and the security specialists in other states were not suing for unpaid overtime related to any Pennsylvania business activity. Under Bristol-Myers Squibb, the appeals court reasoned, the district court only had jurisdiction to hear the portion of the collective action brought by Fischer – or any other FedEx security specialists in Pennsylvania.

In Fischer v. Federal Express Corp., the employees urge the court to reinstate their collective action against the shipping carrier. Bristol-Myers Squib left open the question whether its holding applies to federal courts. The 3rd Circuit’s conclusion that it does, the employees argue, not only contravenes longstanding federalism and due-process doctrines that invest state courts with much narrower personal jurisdiction than federal courts. It also guts the key enforcement mechanism – collective actions – that Congress granted to employees under the FLSA.

A list of this week’s featured petitions is below:

Olhausen v. Arriva Medical, LLC
Issue: Whether a False Claims Act defendant alleged to have “knowingly” violated a provision of federal law can escape liability by articulating, after the fact, an objectively reasonable interpretation of the provision under which its conduct would have been lawful.

Keister v. Bell
Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit erred in relying on the government’s (or its delegee’s) intent to regulate speech in determining that public sidewalks adjacent to government buildings are not traditional public forums, in conflict with decisions by this court and numerous circuits; and (2) whether the status of a public sidewalk as a protected traditional public forum should be determined by the text, history and tradition of the First Amendment rather than by an indeterminate multi-factor balancing test.

Fischer v. Federal Express Corp.
Issue: Whether a federal court has the authority, absent general personal jurisdiction over the defendant or the defendant’s consent, to maintain a Fair Labor Standards Act collective action that includes opt-in plaintiffs who worked for the defendant outside the state where the court is located.

Ferrarini v. Irgit
Issue: Whether the U.S. Court of Appeals for the 2nd Circuit’s judge-made, laches-like, ownership claim-accrual test applies to bar a copyright infringement suit brought within the three-year look-back period prescribed by Congress in 17 U.S.C. § 507(b).

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, was among counsel to respondent in Bristol Myers Squibb v. Superior Court of California.]

Correction (Nov. 11 at 6:10 p.m.): An earlier version of this article misstated the nature of the lawsuit in Fischer v. Federal Express Corp. It is a collective action, not a class action.

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