In re JPMorgan Chase & Co., 18-20825

Citation916 F.3d 494
Decision Date21 February 2019
Docket NumberNo. 18-20825,18-20825
Parties IN RE: JPMORGAN CHASE & COMPANY, Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

William R. Peterson, Catherine Lynn Eschbach, Stefanie R. Moll, Morgan, Lewis & Bockius, L.L.P., Houston, TX, Samuel S. Shaulson, Esq., Morgan, Lewis & Bockius, L.L.P., New York, NY, for Petitioner.

William Clifton Alexander, Austin W. Anderson, Attorney, Lauren Elizabeth Braddy, Anderson Alexander, P.L.L.C., Corpus Christi, TX, for Respondents.

Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

JPMorgan Chase Bank N.A. ("Chase")1 petitions for a writ of mandamus2 after the district court conditionally certified a Fair Labor Standards Act ("FLSA") collective action and directed that approximately 42,000 current and former Chase employees receive notice of the litigation. Chase contends that about 35,000 (or 85%) of those individuals signed arbitration agreements waiving their right to proceed collectively against Chase and that those agreements should be enforced per their terms.

We have reviewed the petition, the response in opposition, petitioner's reply in support, the respondent's sur-reply, the exhibits attached to those submissions, and the applicable law. We also heard full oral argument and commend the attorneys for their excellent briefing and advocacy on a contracted briefing schedule.

Chase has shown that the issue presented is irremediable on ordinary appeal and that the writ of mandamus is appropriate under the circumstances, but Chase has not shown a clear and indisputable right to the writ. We thus deny the petition. We hold, however, that the district court appears to have erred by ordering that notice be sent to employees who signed arbitration agreements (the "Arbitration Employees") and by requiring Chase to provide personal contact information for the Arbitration Employees. We continue the stay of the district court's December 10, 2018, order for thirty days to give the court full opportunity to reconsider that order.


The FLSA permits collective actions in which "any one or more employees" may bring an action against their employer "for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b) (2012). This petition arises from an FLSA action that began when Shannon Rivenbark sued Chase, alleging that it had violated the FLSA by failing to compensate her and other employees at Chase's call centers for tasks they completed "off-the-clock."

Plaintiffs moved to certify conditionally a collective action that would include about 42,000 current and former call-center employees, and plaintiffs asked the district court to send notice of the action to all putative collective members. Chase responded that approximately 35,000 (or 85%) of the putative collective members had waived their right to proceed collectively by signing binding arbitration agreements.3 Chase averred that including those Arbitration Employees in the collective action and giving them notice of it "would be inconsistent" with the agreements and the Federal Arbitration Act ("FAA"). Plaintiffs did not contest that at least some employees had signed arbitration agreements containing waivers of class and collective action; moreover, plaintiffs represented that they did not intend to contest the validity or enforceability of those agreements. Instead, they maintained that employees who had valid arbitration agreements would arbitrate, and those who did not would proceed in court.

Over Chase's objections, the district court, on December 10, 2018, conditionally certified the collective action, including the 35,000 Arbitration Employees. The court reasoned that even if Chase was correct that notice may not be sent to individuals who signed arbitration agreements and thus might be compelled to arbitrate, "the Court cannot determine that there is no possibility that putative class members will be able to join the suit until Defendant files a motion to compel arbitration against specific individuals." Because Chase had not moved to compel arbitration, the court conditionally certified the collective and directed that notice "be sent to all putative class members via First Class Mail and e-mail." The court also ordered Chase to produce contact information for all 42,000 putative collective members (including of course the Arbitration Employees) within two weeks, i.e., by Christmas Eve 2018.

Chase moved for the district court to certify its order for interlocutory appeal under 28 U.S.C. § 1292(b) and to enter an emergency stay to allow for orderly appellate review. The court denied both motions. Chase filed this mandamus petition on December 20, asking this court to "direct[ ] the district court to exclude from notice of the collective action any employees who signed arbitration agreements waiving their rights to participate in this collective action." Accompanying the petition was a motion for stay pending appeal, which we granted on December 21, "subject to further order."


A writ of mandamus is "a drastic and extraordinary remedy reserved for really extraordinary cases," In re Depuy Orthopaedics, Inc. , 870 F.3d 345, 350 (5th Cir. 2017), and we may issue the writ only if three conditions are met. First, the petitioner must have "no other adequate means to attain the relief he desires." Cheney v. U.S. Dist. Court , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Second, this court "must be satisfied that the writ is appropriate under the circumstances." Id. at 381, 124 S.Ct. 2576. Third, the petitioner must demonstrate a "clear and indisputable right to the writ." Id.


The first requirement is that the error presented "is truly ‘irremediable on ordinary appeal.’ " Depuy , 870 F.3d at 352 -53 (citation omitted). Though "[t]hat is a high bar," id. , Chase has met it. Orders of conditional certification cannot be appealed under the collateral order doctrine. See Baldridge v. SBC Commc'ns, Inc. , 404 F.3d 930, 931–33 (5th Cir. 2005). And as stated, the court declined to certify an interlocutory appeal. Moreover, Chase will have no remedy after a final judgment because the notice issue will be moot once Chase has provided the required contact information and notice has been sent to putative collective members. Chase has easily met the first requirement for the writ.


Second, this court "must be satisfied that the writ is appropriate under the circumstances." Cheney , 542 U.S. at 381, 124 S.Ct. 2576. Issuing the writ is "especially appropriate," In re Lloyd's Register N. Am., Inc. , 780 F.3d 283, 294 (5th Cir. 2015), where the issues implicated have "importance beyond the immediate case," In re Volkswagen of Am., Inc. , 545 F.3d 304, 319 (5th Cir. 2008) (en banc).4

Mandamus relief would be especially appropriate here. Whether notice of a collective action may be sent to Arbitration Employees is an increasingly recurring issue.5 Federal district courts have splintered over it,6 and no court of appeals has weighed in. The issue thus has importance well beyond this case, so mandamus relief would be appropriate.


Finally, the writ may issue only if Chase has demonstrated a "clear and indisputable right to the writ." Satisfying this condition "require[s] more than showing that the district court misinterpreted the law, misapplied it to the facts, or otherwise engaged in an abuse of discretion." Lloyd's Register , 780 F.3d at 290. Instead, Chase must demonstrate a "clear abuse[ ] of discretion that produce[s] patently erroneous results"7 or that "there has been a usurpation of judicial power."8 Put another way, Chase "must show not only that the district court erred" "but that it clearly and indisputably erred " in ordering that Arbitration Employees receive notice. In re Occidental Petroleum Corp. , 217 F.3d 293, 295 (5th Cir. 2000).


Unlike members in Rule 23 class actions, putative collective members must affirmatively opt in to FLSA actions. Sandoz v. Cingular Wireless LLC , 553 F.3d 913, 919 (5th Cir. 2008). To keep the opt-in process efficient, district courts "have discretion" to "facilitat[e] notice to potential plaintiffs." Hoffmann-La Roche Inc. v. Sperling , 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Permitting the court to facilitate notice helps ensure both "efficient resolution in one proceeding of common issues" and that "employees [will] receiv[e] accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate." Id . at 170, 110 S.Ct. 482.

Although Hoffmann-La Roche gave district courts discretion to send notice of pending FLSA actions to potential opt-in plaintiffs, it did not explain whether Arbitration Employees waiving their right to proceed collectively count as "potential plaintiffs." That lack of clarity has produced conflicting results from district courts, especially where they use the popular two-stage Lusardi method to certify a collective action.9

Under Lusardi , stage one "begins when the plaintiff moves for conditional certification of the collective action." Reyna v. Int'l Bank of Commerce , 839 F.3d 373, 374–75 (5th Cir. 2016). The district court then considers whether, "based on the pleadings and affidavits of the parties," Sandoz , 553 F.3d at 915 n.2, the putative collective members are "similarly situated" and may thus proceed collectively. If they are, the court conditionally certifies the collective action. Reyna , 839 F.3d at 374–75 (cleaned up). At this point, district courts typically exercise their discretion under Hoffmann-La Roche to decide "whether to provide notice to fellow employees who may be similarly situated to the named plaintiff." Sandoz , 553 F.3d at 915 n.2.

The second stage "usually occurs after discovery is complete ... when the employer moves to decertify the collective." Reyna , 839 F.3d at 375 n.2. The district court then makes "a final determination of whether all plaintiff...

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