United States District Court, District of Columbia
P. MEHTA UNITED STATES DISTRICT JUDGE.
putative class action arises from a controversy surrounding a
profit-sharing plan implemented by Defendant Whole Foods
Market Group, Inc. (“WFMG”), known as the
“Gainsharing program, ” which awarded bonuses to
Whole Foods store employees whose departments came in under
budget. Pls.' Second Am. Compl., ECF No. 28, ¶ 15.
Plaintiffs, who are current and former employees of WFMG,
allege that WFMG abused the Gainsharing program on a
nationwide scale by “shifting labor costs” to
store departments that were underperforming, thus reducing or
negating the bonuses that would have been owed to employees
in an over-performing department. Id. ¶ 18.
Plaintiffs' claims arise solely under District of
Columbia or state law.
March 15, 2018, this court granted in part and denied in part
Defendant's Motion to Dismiss Plaintiffs' Second
Amended Class Action Complaint. See Mem. Op. &
Order, ECF No. 34. As relevant to the instant motion, the
court rejected Defendant's assertion that the Supreme
Court's recent decision in Bristol-Myers Squibb Co.
v. Superior Court of California, 137 S.Ct. 1773 (2017),
required dismissal of the claims of unnamed putative class
members who reside outside of the District of Columbia for
lack of personal jurisdiction. In Bristol-Myers
Squibb, the Supreme Court held, in the context of a mass
tort action, that the Due Process Clause of the Fourteenth
Amendment did not permit a California state court to exercise
specific jurisdiction over the tort claims of nonresident
plaintiffs. See Id. at 1781-82. WFMG now urges this
court to certify its March 15, 2018 order for interlocutory
appeal under 28 U.S.C. § 1292(b) to allow the D.C.
Circuit to weigh in on whether the jurisdictional limits
proscribed in Bristol-Myers Squibb extend to
unnamed, nonresident members of a putative nationwide class
in federal court. See Def.'s Mot. to Certify for
Interlocutory Appeal, ECF No. 37; Def.'s Mem. in Supp.,
ECF No. 37-1 [hereinafter Def.'s Mem.]. Plaintiffs oppose
certification. See Pls.' Mem. in Opp'n, ECF
No. 38 [hereinafter Pls.' Mem.].
reasons discussed below, the court finds that “[a]n
immediate appeal would conserve judicial resources and spare
the parties from possibly needless expense if it should turn
out that this Court's ruling[ ] [is] reversed.”
APCC Servs., Inc. v. Sprint Commc'ns Co., 297
F.Supp.2d 90, 100 (D.D.C. 2003). Accordingly, Defendant's
motion to certify is granted.
28 U.S.C. § 1292(b), the certification of an order for
interlocutory appeal is appropriate when “(1) the order
involves a controlling question of law; (2) a substantial
ground for difference of opinion concerning the ruling
exists; and (3) an immediate appeal would materially advance
the litigation.” APCC Servs., 297 F.Supp.2d at
95. The party seeking interlocutory review “bears the
burden of showing that exceptional circumstances justify a
departure from the basic policy of postponing appellate
review until after the entry of final judgement.”
Virtual Def. & Dev. Int'l Inc. v. Republic of
Moldova, 133 F.Supp.2d 9, 22 (D.D.C. 2001) (internal
quotation marks omitted). Given the “strong
congressional policy against piecemeal reviews, and against
obstructing or impeding an ongoing judicial proceeding by
interlocutory appeals, ” certification is only
appropriate in the court's discretion and upon
satisfaction of the elements of section 1292(b). Judicial
Watch, Inc. v. Nat'l Energy Policy Dev. Grp., 233
F.Supp.2d 16, 20 (D.D.C. 2002) (quoting United States v.
Nixon, 418 U.S. 683, 690 (1974)). The issue WFMG seeks
to certify satisfies all three elements.
the first element-whether the order involves a
“controlling question of law”-there is no genuine
dispute. See 28 U.S.C. § 1292(b). Indeed,
Plaintiffs offer no argument to the contrary. See
Pls.' Mem. at 5-12. A controlling question of law is
“one that would require reversal if decided incorrectly
or that could materially affect the course of litigation with
resulting savings of the court's or the parties'
resources.” Judicial Watch, 233 F.Supp.2d at
19 (quoting In re Vitamins Antitrust Litigation,
Civ. A. No. 99-197, 2000 WL 673936, at *2 (D.D.C. Jan. 27,
2000). “The resolution of an issue need not necessarily
terminate an action in order to be controlling, but instead
may involve a procedural determination that may significantly
impact the action.” APCC Servs., 297 F.Supp.
2d. at 96 (internal quotations and citation omitted).
whether Bristol-Myers Squibb applies to claims of
unnamed, nationwide putative class members in a federal court
is a threshold jurisdictional question. If this court's
decision is correct, the court may exercise specific
jurisdiction over the claims of thousands of unnamed,
nonresident putative class members. On the other hand, if the
court is wrong and it lacks specific jurisdiction over such
claims, this court could not entertain a nationwide class
action and the most Plaintiffs could seek to certify is a
District of Columbia class. The difference in scope of these
two scenarios need not be belabored. Quite obviously, a
nationwide class action would place far greater demands on
this court and Defendant than would a case that goes forward
with only a geographically limited class. For that reason,
the order from which Defendant seeks interlocutory review
involves a “controlling question of law.”
court also is satisfied that the second element-that there
exist a substantial ground for difference of opinion-is
present in this case. “A substantial ground for
difference of opinion is often established by a dearth of
precedent within the controlling jurisdiction and conflicting
decisions in other circuits.” APCC Servs., 297
F.Supp.2d at 97. It is not necessarily enough, however, that
there are conflicting decisions in other circuits. Instead, a
court “must analyze the strength of the arguments in
opposition to the challenged ruling to decide whether the
issue is truly one on which there is a substantial ground for
dispute.” Id. at 98.
is no controlling or persuasive precedent in this
jurisdiction, and no circuit authority elsewhere, that
addresses Bristol-Myers Squibb's application to
nationwide class actions in federal courts. There are only
district court cases, and among them there is a near even
split on the question. Defendant points to nine cases that it
characterizes as having reached a different conclusion than
this court did. Def.'s Mem. at 6-7 & n.3; Def.'s
Ltr. Br., ECF No. 41, at 1-2; see, e.g.,
McDonnell v. Nature's Way Prods., LLC, No.
16-C-5011, 2017 WL 4864910, at *4 (N.D. Ill. Oct. 26, 2017)
(dismissing nonresident putative class members' claims
for lack of a connection to the forum). Plaintiffs, on
the other hand, identify nine other cases that have gone the
other way and are in agreement with this court. Pls.'
Mem. at 7 n.2; see, e.g., Feller v. Transam.
Life Ins. Co., No. 2:16-cv-01378, 2017 WL 6496803, at
*17 (C.D. Cal. Dec. 11, 2017) (recognizing that “there
are important differences between mass tort and class actions
for the purposes of personal jurisdiction over
defendants” and concluding that Bristol-Myers
Squibb's reasoning “does not reach so far as
to bar the nonresident unnamed class members”). In
light of these numbers, there can be no dispute, as one court
has put it, that the question “whether
Bristol-Myers extends to class actions is a question
that has divided courts across the country.” Chavez
v. Church & Dwight Co., No. 17-C-1948, 2018 WL
2238191, at *10 (N.D. Ill. May 16, 2018).
court's task is not, however, to “keep score”
and determine which side has more decisions in its favor, but
instead is to analyze the reasoning in those decisions and
the “strength of the arguments in opposition” in
order to decide whether there is a substantial ground for
dispute. APCC Servs., 295 F.Supp.2d at 98. And here
there is. The cases holding that Bristol-Myers
Squibb applies to claims of nationwide class members are
well-reasoned and do not lack persuasive power. In brief,
those courts that have taken an opposing view have
highlighted the Supreme Court's holding in
Bristol-Myers Squibb that due process requires there
be some relationship between the defendant and the
plaintiff's claim to the forum state to establish
specific jurisdiction. See, e.g., Practice Mgmt.
Support Servs., Inc. v. Cirque du Soleil, Inc., No.
14-C-2032, 2018 WL 1255021, at *15-17 (N.D. Ill. Mar. 12,
2018); Greene v. Mizuho Bank, Ltd., 289 F.Supp.3d
870, 873-75 (N.D. Ill. 2017). They also have emphasized the
Supreme Court's conclusion that even the presence of
similar claims from resident plaintiffs is not enough to
satisfy due process. See Id. These jurisdictional
limitations, although made in the context of a mass tort
action in state court, have obvious parallels to the
nationwide class action in federal court. Moreover, some
courts have responded to the concern that extending
Bristol-Myers Squibb to class actions would gut Rule
23. They have reasoned that Rule 23 cannot grant jurisdiction
where the due process clause does not allow it, citing the
Supreme Court's statement in Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 613 (1997), that “Rule
23's class action requirements must be interpreted in
keeping with Article III constraints, and with the Rules
Enabling Act, [28 U.S.C. § 2072(b)] which instructs that
the federal court rules of procedure shall not abridge,
enlarge, or modify any substantive right.” See
Practice Mgmt. Support Servs., 2018 WL 1255021, at *16
(alterations and internal quotation marks omitted); see
also In re Dental Supplies Antitrust Litigat., No.
16-Civ-696, 2017 WL 4217115, at *9 (E.D.N.Y. Sept. 20, 2017)
(“The constitutional requirements of due process do[ ]
not wax and wane when the complaint is individual or on
behalf of a class. Personal jurisdiction in class actions
must comport with due process just the same as any other
case.”). These are not insubstantial arguments. And
reasonable jurists can, and have, disagreed about them.
this court remains unpersuaded by these contrary
interpretations of Bristol-Myers Squibb, it does not
find the reasoning employed in those cases to be lacking
merit, leading this court to conclude that there is a
“substantial ground for ...