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TCPA Class Action Update: Whole Foods Seeks Guidance from the US Court of Appeals for the DC Circuit: Does Bristol-Myers Apply to Class Actions?

In 2017, the United States Supreme Court decided the Bristol-Myers Squibb case, which limited state court jurisdiction. Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1777 (2017). In Bristol-Myers, 600 plaintiffs filed a civil action in California state court against Bristol-Myers, asserting California state-law claims. Of the 600 plaintiffs, 86 were California residents. The remaining 592 were residents from 33 other states. Id. at 1778.

The California Supreme Court originally held that the California courts have specific jurisdiction since Bristol-Myers engages in extensive activities in California. Id. The United States Supreme Court disagreed, granting certiorari to decide whether the California courts’ exercise of jurisdiction violates the Due Process Clause of the Fourteenth Amendment. Id. at 1779. Reiterating that “a defendant’s general connections with the forum are not enough” to find specific jurisdiction, the Supreme Court found the nonresidents’ claims and the connection to California were too weak to support a claim of specific jurisdiction. Id. at 1781-82. A court must have personal jurisdiction over every plaintiff’s claim. Id. at 1781.

The Bristol-Myers case is being used by Whole Foods in its defense against nine store managers’ class action against it. On January 28, 2019, Whole Foods appealed from an interlocutory order on Whole Foods’ motion to dismiss for lack of personal jurisdiction in the United States District Court for the District of Columbia. See Brief for Petitioner, Whole Foods Market Group, Inc. v. Michael Molock, et al., (No. 18-7162). This case involves the “alleged underpaying of Gainsharing ‘bonuses’ to Whole Foods’ current and former Team Members across the country.” Id. at 1. Gainsharing is Whole Foods’ incentive-based bonus program. Id. In December 2016, nine Whole Foods store managers were terminated when Whole Foods allegedly determined they manipulated numbers to meet requirements of the bonus program. Id. at 2. These nine store managers filed a lawsuit against Whole Foods for their termination in January 2017 and assert claims on behalf of themselves and a putative nationwide class of current and former Whole Foods store managers. Id. at 3-4.

The issue presented to the DC Circuit Court of Appeals by Whole Foods is, “[w]hen a class action is brought in federal court under diversity jurisdiction against a nonresident corporation, does the court have jurisdiction to determine claims brought on behalf of unnamed putative class members who could never individually satisfy the requirements for personal jurisdiction?” Id. at xiii.

So the real question here is, does the Bristol-Meyers mass-tort ruling also apply to class actions? Whole Foods argues that it does: “Bristol-Myers has obvious parallels to a putative nationwide class action in federal court, and its rationale applies with equal force to class actions.” Id. at 14. No Federal Circuit court has addressed this question yet. This is an important question, and if Bristol-Myers is found to apply to class action claims, the landscape of class actions may change.

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About this Author

Anne-Marie D. Dao IP Lawyer Mintz Law Firm

Anne-Marie is an Associate in Mintz Levin's San Diego office. She represents clients in a wide variety of intellectual property, complex commercial, real estate, and class action defense matters. Anne-Marie’s litigation experience includes trademark infringement, copyright infringement, defense of corporate clients against class action suits alleging violations of the Telephone Consumer Protection Act, the Fair Credit Reporting Act, and representing clients in lease disputes in both federal and state court. She is also fluent in Vietnamese and French. 

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Joshua Briones, Mintz, Bet Company Class Action Defense Lawyer,

Joshua, Managing Member of the firm’s LA office, is a highly experienced trial lawyer with a national practice. He has received awards and national recognition for his innovative approach to the defense of bet-the-company class actions. He has served as lead defense counsel on over 200 alleged class actions in state and federal courts across the country. 

Since the early 2000s, Joshua has advised and defended clients on TCPA faxing, prerecorded voicemail messages, mobile calls, and text messages. He also defends companies sued for allegedly improper call recording, collecting personal information, fraudulent and/or deceptive charges, negative options, disclosure issues, direct marketing, mobile and electronic commerce platforms, loyalty programs, and other promotions practices. He is well-versed in substantive privacy and marketing laws, regulations, and best practices, and uses his insight to design and implement compliant marketing programs.