Key Points

• The 2nd Circuit’s May 2026 ruling in Provencher v. Bimbo Bakeries USA, Inc. requires courts to establish personal jurisdiction over defendants for each opt-in plaintiff before certifying FLSA collective actions, giving multistate employers a powerful new defense in wage and hour litigation.
• This employment law decision creates a 6-1 circuit split on Bristol-Myers Squibb v. Superior Court jurisdiction requirements, fragmenting nationwide class action overtime lawsuits and forcing plaintiffs to file separate cases in each state.
• With Supreme Court review increasingly likely due to the deepening circuit split, employers facing FLSA misclassification claims should review their litigation strategy in light of this ruling.

The U.S. Court of Appeals for the 2nd Circuit has issued a major decision on the certification of Fair Labor Standards Act (FLSA) collective actions with significant implications for employers facing potential multistate class action litigation.

Among the implications: Plaintiffs can no longer consolidate multistate FLSA class actions in a single forum without general jurisdiction over the defendant, courts must now confirm personal jurisdiction over the defendant for each group of opt-in plaintiffs before authorizing notice, and employers gain a dispositive personal-jurisdiction challenge to out-of-state opt-in claims.

There’s also an increased likelihood of review by the U.S. Supreme Court, with a deepening circuit split on the issue.

Basics of the ruling and the split

Ruling in Provencher v. Bimbo Bakeries USA, Inc., Case No. 24-3112-cv, 2026 WL 1206215 (2d Cir. 202), the 2nd Circuit held that a federal district court must have personal jurisdiction over a defendant with respect to the claims of each individual opt-in plaintiff before conditionally certifying an FLSA collective action and authorizing notification of those potential plaintiffs. The May 4, 2026 decision reversed the District of Vermont’s ruling that had permitted out-of-state distributors in Connecticut and New York to be notified of — and have the chance to opt into — the Vermont-based FLSA collective action against the defendant. With this ruling, the 2nd Circuit joins the 3rd, 6th, 7th, 8th and 9th Circuits in extending the Supreme Court's 2017 decision in Bristol-Myers Squibb Co. v. Superior Court, 582 U.S. 255 (2017) — a mass tort action in which over 600 plaintiffs sued a pharmaceutical company in California state court over injuries caused by a blood-thinning drug. In that case, the court held that the forum state lacked specific jurisdiction over nonresident plaintiffs’ claims because those claims did not arise out of or relate to the defendant’s contacts with the forum state — to the FLSA collective action context, leaving the 1st Circuit as the sole outlier.

Background on the litigation

The plaintiffs are Vermont-based delivery distributors for a bakery incorporated in Delaware with a principal place of business in Pennsylvania. They alleged that the bakery misclassified its distributors as independent contractors rather than as employees entitled to FLSA overtime protections. The plaintiffs filed suit in the District of Vermont in October 2022 as a hybrid FLSA collective action under 29 U.S.C. § 216(b) and Rule 23 class action.

In January 2024, the plaintiffs moved to conditionally certify the FLSA collective and send notices to similarly situated distributors in Vermont, Connecticut and New York. The district court rejected the defendant’s Bristol-Myers defense, reasoning that the Supreme Court’s concerns in Bristol-Myers were absent in a federal action asserting claims under a nationwide federal statute. The defendant filed and was granted an interlocutory appeal under 28 U.S.C. § 1292(b).

The 2nd Circuit's Analysis

A unanimous 2nd Circuit panel reversed the District Court.

Statutory framework and application of the Supreme Court’s 2017 Decision

Because the FLSA contains no nationwide service of process provision, the court held that Federal Rule of Civil Procedure 4(k)(1)(A) limits a federal district court to the personal jurisdiction available under the forum state's long-arm statute — here, the full reach of the Fourteenth Amendment's Due Process Clause. Applying the Bristol-Myers decision, the court concluded that each opt-in plaintiff's claims must “arise out of or relate to” the defendant's contacts with the forum state, and nothing in the record tied the Connecticut or New York distributors’ claims to Defendant’s Vermont contacts. The court drew a direct parallel to Bristol-Myers, where the Supreme Court rejected the argument that because the drug was chemically identical wherever it was sold, nonresident plaintiffs’ claims were sufficiently connected to the forum state; here, the court held the uniformity of Defendant’s distribution protocol across states similarly “cannot transform out-of-state dealings into in-state contacts.”

Rejection of the Fifth Amendment argument

The court held that the Fifth Amendment's “more flexible jurisdictional inquiry” does not come into play absent congressional authorization for broader federal court jurisdiction – which the FLSA does not provide.

Rejection of the class action analogy

The court distinguished FLSA collective actions from Rule 23(b)(3) class actions, emphasizing that a certified class acquires a “legal status separate from” the individual claims of its members, whereas an FLSA collective remains “a mosaic of individual claims” that “does not produce a class with an independent legal status.” According to the court, opt-in plaintiffs bring their own claims, face individual defenses, and may appeal separately – so “the jurisdictional inquiry revolves around individual claims.”

Rejection of the Rule 4 service argument

Finally, the court rejected the 1st Circuit's position in Waters v. Day & Zimmermann NPS, Inc., 23 F.4th 84 (1st Cir. 2022) that Federal Rule of Civil Procedure 4(k) governs only initial service and does not limit jurisdiction thereafter. The 2nd Circuit found that service of process “does not by itself confer personal jurisdiction” but is rather the mechanism by which a court asserts jurisdiction it already possesses. Accordingly, the court held, the original plaintiffs' service of the defendant cannot extend jurisdiction to new opt-in claims.

Details of the Circuit Split

The 2nd Circuit's decision deepens what is now a heavily lopsided split. Six circuits — the 2nd, 3rd, 6th, 7th, 8th and 9th — have held that the Supreme Court’s 2017 decision requires individualized personal jurisdiction assessments for opt-in plaintiffs in FLSA collective actions. Only the 1st Circuit in Waters has reached a contrary result. Notably, the Supreme Court in February 2026 declined to review the 9th Circuit's decision on this issue, which at the time was the latest addition to the split.

The 2nd Circuit expressly reserved judgment on whether Bristol-Myers applies to Rule 23(b)(3) class actions, noting that several circuits have held it does not, while some jurists have argued otherwise. This question remains open and may generate its own circuit split in the future.

Practical Considerations for Employers

Fragmentation of multistate collectives

Plaintiffs can no longer consolidate multistate FLSA collective actions in a single forum absent general jurisdiction over the defendant. Instead, counsel must file parallel actions in each relevant state, increasing cost and complexity. Some commentators have suggested that this dynamic may lead to an increase in multidistrict litigation proceedings under 28 U.S.C. § 1407 as a means of coordinating parallel state-specific filings, though the relative advantages and disadvantages of MDL in the wage and hour context must be carefully considered (and could be its own article).

Jurisdictional gatekeeping at conditional certification

Courts must now confirm personal jurisdiction over the defendant as to each group of potential opt-in plaintiffs before authorizing notice, potentially narrowing the geographic scope and size of putative collectives at the outset.

Early-stage defense for employers

Employers operating across multiple states now have a dispositive personal-jurisdiction challenge to out-of-state opt-in claims, particularly where the employer is not incorporated or headquartered in the forum state.

In-state claims unaffected

The ruling applies only to out-of-state opt-in plaintiffs; in-state FLSA collectives remain fully viable.

Potential for Supreme Court review

The 6-1 circuit split and the significance of this issue for nationwide wage enforcement may prompt the Supreme Court to grant certiorari, notwithstanding its recent denial of the 9th Circuit's decision.

We’ll continue to monitor developments in this area and are available to discuss how this ruling may affect pending or contemplated wage and hour litigation.

For more information on this and other issues related to the FLSA, contact co-authors Colin Dougherty at cdougherty@foxrothschild.com or Wesley Meehan at wmeehan@foxrothschild.com.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients.