FLSA Collective Action Notice Requires Personal Jurisdiction Over Each Opt-In Claim Under Rule 4(k)

1. Introduction

Provencher v. Bimbo Foods Bakeries Distribution LLC (2d Cir. May 4, 2026) addresses whether a federal district court in Vermont may authorize notice to (and thus potentially adjudicate the claims of) Fair Labor Standards Act (“FLSA”) opt-in plaintiffs who reside and worked outside Vermont, when the defendants are not “at home” in Vermont and the out-of-state claims do not arise from Vermont contacts.

The plaintiffs, Vermont-based delivery distributors, sued Bimbo entities under the FLSA and Vermont law, alleging misclassification as independent contractors and unpaid overtime. The case proceeded in a common “hybrid” posture—an FLSA collective under 29 U.S.C. § 216(b) and a Rule 23 class action for state-law claims (as described in Scott v. Chipotle Mexican Grill, Inc.). The district court authorized notice to similarly situated distributors in Vermont, Connecticut, and New York. Bimbo sought interlocutory review, arguing the court lacked personal jurisdiction over out-of-state opt-ins’ FLSA claims.

The Second Circuit reversed, aligning itself with the majority of circuits to hold that a court must have personal jurisdiction over the defendant as to the claims of the individuals who would opt in before authorizing notice to them.

2. Summary of the Opinion

The Second Circuit held that, because the FLSA does not authorize nationwide service of process, personal jurisdiction in an FLSA collective action is constrained by Fed. R. Civ. P. 4(k)(1)(A), which generally ties federal-court personal jurisdiction to the forum state’s courts. Vermont’s long-arm statute extends jurisdiction only to the limits of the Fourteenth Amendment due process.

Applying Bristol-Myers Squibb Co. v. Superior Court of California and the requirement that specific jurisdiction be assessed claim-by-claim, the court found the record did not show that Connecticut or New York distributors’ alleged FLSA injuries “arise out of or relate to” Bimbo’s Vermont contacts. The similarity of Bimbo’s distribution practices across states did not supply the needed forum nexus.

The court rejected three key avoidance arguments: (1) that Fifth Amendment due process permits broader federal jurisdiction (because Congress did not authorize it for the FLSA via nationwide service or an applicable rule); (2) that FLSA collectives should be treated like Rule 23 class actions (they are materially different, and historically resemble a “spurious” class action requiring each claimant to satisfy jurisdictional requirements); and (3) that Rule 4 governs only initial summons service, not later-added opt-ins (misreading Rule 4(k)’s jurisdictional function and inviting gamesmanship).

3. Analysis

3.1. Precedents Cited

  • Bristol-Myers Squibb Co. v. Superior Court of California (U.S. 2017)

    The central template. The Second Circuit treated Bristol-Myers as establishing that in specific-jurisdiction cases, each plaintiff’s claim must “arise out of or relate to” the defendant’s forum contacts; a defendant’s relationship with other plaintiffs (or similarity of alleged injuries) cannot bootstrap jurisdiction. The court analogized Bimbo’s uniform policy to Plavix’s uniform composition—relevant to merits commonality, not to forum contacts.

  • NLRB v. Universal Smart Contracts, LLC (2d Cir. 2026)

    Provided the three-part framework: (1) service of process, (2) statutory basis making service effective, and (3) constitutional due process. The opinion used this to emphasize that due process flexibility alone does not create jurisdiction absent statutory authorization.

  • Brown v. Lockheed Martin Corp. (2d Cir. 2016)

    Supplied the modern distinction between general (“all-purpose”) and specific (“case-linked”) jurisdiction and reaffirmed that, absent a federal statute directing otherwise, Rule 4(k)(1)(A) ties federal-court jurisdiction to the forum state’s limits. The court also relied on Brown’s point that service alone does not confer jurisdiction (reinforced later with Rule 4 advisory notes).

  • Sullivan v. UBS AG (2d Cir. 2025)

    Used for the proposition that specific jurisdiction must be shown “with respect to each claim asserted.” This became pivotal to treating opt-in claims as distinct jurisdictional units.

  • Lelchook v. Société Générale de Banque au Liban SAL (2d Cir. 2023)

    Cited to frame Rule 4(k) as the listing of bases by which effective service establishes jurisdiction—setting up the conclusion that the FLSA contains no nationwide-service hook under Rule 4(k)(1)(C).

  • State v. Meta Platforms, Inc. (Vt. 2025)

    Demonstrated that Vermont’s long-arm statute reaches only as far as the Fourteenth Amendment allows, thereby importing Bristol-Myers limitations into the federal analysis through Rule 4(k)(1)(A).

  • Fuld v. Palestine Liberation Organization (U.S. 2025)

    Acknowledged that Fifth Amendment due process can be “more flexible” for federal jurisdiction. The Second Circuit nonetheless held that flexibility matters only where Congress has authorized broader territorial reach—something missing in the FLSA and in applicable rules here.

  • Omni Capital International, Ltd. v. Rudolf Wolff & Co., Ltd. (U.S. 1987)

    Anchored the “no jurisdiction without congressional authorization” principle: even if Fifth Amendment due process might allow jurisdiction, federal courts need a statutory/rule basis to exercise it.

  • Palmore v. United States (U.S. 1973)

    Cited for the basic structural point that Congress is not constitutionally required to create lower federal courts, reinforcing that their jurisdictional reach is a matter of congressional design.

  • Scott v. Chipotle Mexican Grill, Inc. (2d Cir. 2020) and Kern v. Siemens Corp. (2d Cir. 2004)

    Used to reject equating FLSA collectives with Rule 23 classes: § 216(b)’s “similarly situated” standard is “independent of, and unrelated to” Rule 23 predominance, and the two mechanisms “bear little resemblance.” That structural difference mattered because Rule 23’s unitary “class” status is a key argument some courts use to distinguish Bristol-Myers for class actions.

  • Sosna v. Iowa (U.S. 1975)

    Illustrated the “separate legal status” of a certified Rule 23 class (including the ability to continue despite mootness of the representative’s claim), which the Second Circuit contrasted with FLSA collectives.

  • Genesis Health Corp. v. Symczyk (U.S. 2013), abrogated on other grounds by Campbell-Ewald Co. v. Gomez (U.S. 2016)

    Emphasized that an FLSA collective does not create an independent entity; absent opt-ins, mootness of the named plaintiff moots the case—supporting the view that FLSA claims remain an aggregation of individual suits, not a single “class claim.”

  • Gibbons v. Equitable Life Asuurance Society of United States (2d Cir. 1949), and Mickles v. Country Club Inc. (11th Cir. 2018)

    Reinforced separateness of FLSA opt-in claims (including potential for separate appeals and distinct defenses), consistent with the claim-by-claim jurisdiction approach.

  • Klein v. Qlik Technologies (2d Cir. 2018)

    Contrasted derivative actions (more class-like) with FLSA collectives (less class-like), underscoring that procedural form affects how courts conceptualize the “unit” of litigation.

  • McComb v. Frank-Scerbo & Sons (2d Cir. 1949), Steele v. Guaranty Trust Co. of New York (2d Cir. 1947), and Eisen v. Carlisle & Jacquelin (2d Cir. 1968)

    These cases supported the opinion’s historical account: the FLSA “representative” device resembles the old “spurious class action,” which functioned like permissive joinder—a “congeries of separate suits”—requiring each claimant/intervenor to satisfy jurisdictional requirements (Steele), rather than enjoying a Rule 23-like unitary status.

  • Hall v. Hall (U.S. 2018) and In re State Water Board Cases (Cal. Ct. App. 2023)

    Used to analogize the spurious class action (and by extension FLSA collectives) to consolidation mechanisms that join cases without merging their identities— a posture compatible with Bristol-Myers’s claim-specific jurisdiction demand.

  • Mississippi Publishing Corp. v. Murphree (U.S. 1946)

    Clarified that service is a procedural means to assert jurisdiction where jurisdiction otherwise exists; it is not itself the jurisdictional grant—supporting the rejection of the “Rule 4 is only about summons” theory.

  • Waters v. Day & Zimmermann NPS, Inc. (1st Cir. 2022)

    The Second Circuit explicitly rejected Waters’s theory that once the defendant is properly served, Rule 4(k)’s territorial limits do not constrain opt-in plaintiffs’ claims. The opinion reasoned that accepting Waters would allow end-runs around jurisdiction through later pleadings and create a “loose and spurious form of general jurisdiction.”

  • Sister-circuit alignment: Canaday v. Anthem Cos., Inc. (6th Cir. 2021); Vallone v. CJS Solutions Group, LLC (8th Cir. 2021); Fischer v. Federal Express Corp. (3d Cir. 2022); Vanegas v. Signet Builders, Inc. (7th Cir. 2024); Harrington v. Cracker Barrel Old Country Store, Inc. (9th Cir. 2025)

    The court located its holding within a “substantial majority” consensus: Bristol-Myers constraints apply to FLSA opt-ins absent nationwide service or other jurisdictional authorization.

3.2. Legal Reasoning

(a) The controlling jurisdictional pathway is Rule 4(k)(1)(A), not “nationwide Fifth Amendment power.”

  • Because the FLSA contains no nationwide service of process provision, the relevant basis is Fed. R. Civ. P. 4(k)(1)(A): federal jurisdiction generally tracks the forum state’s courts.
  • Vermont’s long-arm statute goes to the Fourteenth Amendment limit (per State v. Meta Platforms, Inc.), importing the Bristol-Myers specific jurisdiction constraints.
  • The Fifth Amendment may be “more flexible” (Fuld v. Palestine Liberation Organization), but only matters if Congress has actually authorized broader service/jurisdiction. Omni Capital International, Ltd. v. Rudolf Wolff & Co., Ltd. supplies the core principle: no implied federal jurisdictional expansion without authorization.

(b) Specific jurisdiction is claim-specific; similarity of conduct is not a forum contact.

  • The court accepted that Vermont plaintiffs’ claims were properly before the Vermont federal court; the dispute was limited to opt-ins’ out-of-state claims.
  • Under Bristol-Myers Squibb Co. v. Superior Court of California, a defendant’s forum contacts must connect to the particular plaintiff’s claim. The fact that other plaintiffs in the forum experienced similar alleged misconduct does not supply that connection.
  • The record did not show that Connecticut or New York distributors’ alleged unpaid overtime “arose out of or related to” Vermont contacts; uniform company protocols across states do not create a Vermont nexus.

(c) FLSA collectives are not Rule 23 classes; they remain aggregations of individual suits.

  • Relying on Scott v. Chipotle Mexican Grill, Inc. (and Kern v. Siemens Corp.), the court stressed § 216(b)’s distinct structure: opt-in plaintiffs bring their own claims; non-opt-ins are not bound (no res judicata effect).
  • Genesis Health Corp. v. Symczyk further supports that a collective action does not create a separate juridical entity akin to the Rule 23 class described in Sosna v. Iowa.

(d) The “spurious class action” analogy supports Bimbo, not plaintiffs.

  • Although McComb v. Frank-Scerbo & Sons described FLSA representative actions as “spurious” class actions, Steele v. Guaranty Trust Co. of New York treated such actions as “a congeries of separate suits,” requiring each claimant to meet jurisdictional requirements.
  • The opinion’s historical and functional comparison to permissive joinder (Fed. R. Civ. P. 20) and consolidation (Fed. R. Civ. P. 42) underscores why Bristol-Myers applies: aggregation does not merge jurisdictional identities.

(e) Rejecting the “service once, jurisdiction forever” theory.

  • The court rejected the view (endorsed in Waters v. Day & Zimmermann NPS, Inc.) that once a defendant is served with the initial summons, later-added claims evade Rule 4(k) limits.
  • Citing Mississippi Publishing Corp. v. Murphree and Rule 4 advisory committee notes, the court emphasized that service is a prerequisite but not the grant of authority; courts must have personal jurisdiction over each claim they adjudicate.
  • The court also highlighted practical consequences: allowing jurisdiction to hinge on the initial pleading would incentivize strategic pleading and amendment to circumvent territorial limits—contrary to Bristol-Myers’s warning against a “loose and spurious form of general jurisdiction.”

3.3. Impact

  • Second Circuit joins the majority rule: In FLSA collectives, district courts must ensure personal jurisdiction over the defendant for the claims of out-of-state workers before authorizing notice to them.
  • Forum selection will sharpen: Multi-state employers can expect plaintiffs to file FLSA collective actions either (a) where the employer is subject to general jurisdiction (typically place of incorporation or principal place of business) or (b) in multiple fora tied to where work occurred, unless Congress provides nationwide service for FLSA claims.
  • Conditional certification practice changes: Courts in the Second Circuit may require plaintiffs to make an early jurisdictional showing connecting out-of-state opt-ins’ claims to the forum (or confine notice to in-forum workers).
  • Rule 23 remains an open comparative question—but less relevant for FLSA: The opinion carefully avoided deciding how Bristol-Myers applies to certified Rule 23 classes, but strongly signaled that FLSA’s opt-in design keeps the jurisdictional lens fixed on individual claims.

4. Complex Concepts Simplified

  • Personal jurisdiction: A court’s power over a defendant. General jurisdiction lets a court hear almost any claim against a defendant (usually where the company is “at home”). Specific jurisdiction is narrower and requires a connection between the forum and the particular claim.
  • Rule 4(k)(1)(A): The default rule that federal district courts usually have the same personal-jurisdiction reach as courts of the state where they sit—unless a federal statute authorizes broader reach.
  • Nationwide service of process: Some federal statutes permit serving a defendant anywhere in the United States; that often allows a federal court to exercise jurisdiction based on national contacts. The FLSA does not provide this.
  • FLSA collective action (§ 216(b)) vs. Rule 23 class action: An FLSA collective is “opt-in”: each worker who joins becomes a party with an individual claim. A Rule 23 class is typically “opt-out” and, once certified, proceeds as a unit with a distinct legal status; absent class members can be bound without individually appearing.
  • “Spurious class action” (historical): An older procedural device resembling joinder—many similar individual claims handled together without becoming a single unified “class claim.” The Second Circuit used this history to reinforce that jurisdiction must be assessed per claimant.
  • Fifth vs. Fourteenth Amendment due process: The Fourteenth constrains state courts; the Fifth constrains federal power. Even if federal due process is more flexible, a federal district court still needs Congress (via statute or rule) to authorize broader jurisdictional reach.

5. Conclusion

Provencher v. Bimbo Foods Bakeries Distribution LLC establishes a clear Second Circuit rule: because the FLSA lacks nationwide service of process, Rule 4(k)(1)(A) ties FLSA collective actions to the forum state’s personal-jurisdiction limits, and a district court must have specific personal jurisdiction over the defendant as to each opt-in plaintiff’s claim before authorizing notice to out-of-state potential opt-ins. Similar alleged pay practices across states do not substitute for the required forum-claim connection.

The decision materially constrains multi-state FLSA collectives filed outside an employer’s “home” fora, reshaping notice strategy, forum choice, and early motion practice in wage-and-hour litigation throughout the Second Circuit.