United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2019 Decided March 10, 2020

No. 18-7162

MICHAEL MOLOCK, ET AL.,

APPELLEES

v.

WHOLE FOODS MARKET GROUP, INC.,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-02483)

Gregory J. Casas argued the cause and filed the briefs for 

appellant.

Steven P. Lehotsky, Nicole A. Saharsky, and Andrew J. 

Pincus were on the brief for amici curiae the Chamber of 

Commerce of the United States of America, et al. in support of 

appellant.

Richard A. Samp was on the brief for amicus curiae 

Washington Legal Foundation in support of appellant.

Scott L. Nelson and Allison M. Zieve were on the brief for 

amicus curiae Public Citizen, Inc. in support of plaintiffs-
2

appellees and affirmance.

Matthew W.H. Wessler argued the cause for appellees.

With him on the briefs were Jonathan E. Taylor and Salvatore 

J. Zambri.

Before: TATEL and GARLAND, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Senior Circuit Judge

SILBERMAN.

TATEL, Circuit Judge: In this not yet certified class action,

the defendant moved to dismiss all nonresident putative class 

members for lack of personal jurisdiction. The district court 

denied the motion on the merits. We affirm, but on alternative 

grounds. Absent class certification, putative class members are 

not parties before a court, rendering the defendant’s motion 

premature. 

I.

Whole Foods, a Delaware corporation headquartered in

Texas, allegedly manipulated its incentive-based bonus 

program, resulting in employees losing wages otherwise owed 

to them. Current and former Whole Foods employees (the 

Employees) initiated this diversity action in the District Court 

for the District of Columbia to recover the purportedly lost

wages. The Employees brought various state law claims and 

sought to represent a putative class of “past and present 

employees of Whole Foods.” Second Am. Class Action Compl.

25.
3

Whole Foods moved to dismiss on several grounds, only 

one of which is relevant here: it argued that the district court 

lacked personal jurisdiction to entertain the claims of the 

nonresident putative class members. The district court denied 

the motion and certified its order for interlocutory appeal 

pursuant to 28 U.S.C. § 1292(b). Whole Foods then filed a 

petition for leave to appeal, which this court granted. 

We review the district court’s denial of Whole Foods’

motion to dismiss de novo. See Liff v. Office of Inspector 

General for U.S. Department of Labor, 881 F.3d 912, 918 

(D.C. Cir. 2018) (“We review de novo the District Court’s legal 

conclusions denying a motion to dismiss.”). 

II.

Here and in the district court, the parties debate an issue 

left unresolved by the Supreme Court’s recent decision in 

Bristol-Myers Squibb Co. v. Superior Court of California, 137 

S. Ct. 1773 (2017). There, a group of six hundred plaintiffs 

brought a mass tort action in California state court against the 

pharmaceutical firm Bristol-Myers Squibb. Id. at 1778. All 

plaintiffs asserted California state law claims, but only eightysix were California residents; the rest resided elsewhere. Id.

The firm moved to quash service of summons on the 

nonresidents’ claims, arguing that the California court lacked

specific jurisdiction to hear those claims. Id. The Supreme 

Court agreed, explaining that “[i]n order for a state court to 

exercise specific jurisdiction, the suit must arise out of or relate 

to the defendant’s contacts with the forum,” meaning “there 

must be an affiliation between the forum and the underlying 

controversy, principally, an activity or an occurrence that takes 

place in the forum State and is therefore subject to the State’s 

regulation.” Id. at 1780 (internal citations, alterations, 

emphasis, and quotation marks omitted). Applying that 
4

standard, the Court found that the nonresidents’ claims lacked 

an “adequate link” with California to justify the exercise of 

specific jurisdiction. Id. at 1781.

Significantly for our purpose, the Court carefully limited

its holding: “since our decision concerns the due process limits 

on the exercise of specific jurisdiction by a State, we leave open 

the question whether the Fifth Amendment imposes the same 

restrictions on the exercise of personal jurisdiction by a federal 

court.” Id. at 1783–84 (citing Omni Capital International, 

Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987)). 

Justice Sotomayor, dissenting, further explained that “the 

Court today does not confront whether its opinion here would 

also apply to a class action in which a plaintiff injured in the 

forum State seeks to represent a nationwide class of plaintiffs, 

not all of whom were injured there.” Bristol-Myers, 137 S. Ct. 

at 1789 n.4 (Sotomayor, J., dissenting). These are the issues the 

parties address in their briefs.

Whole Foods argues that because the district court is 

sitting in diversity, its personal jurisdiction is conterminous

with that of a District of Columbia court. See Helmer v. 

Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004) (“In a diversity 

case, the federal district court’s personal jurisdiction over the 

defendant is coextensive with that of a District of Columbia 

court.”). So, Whole Foods contends, the district court should 

have dismissed the nonresident putative class members 

because a District of Columbia court would lack both general 

and specific personal jurisdiction over their claims. It would 

lack general jurisdiction because Whole Foods, a Delaware 

corporation headquartered in Texas, is not “at home” in the 

District of Columbia. Goodyear Dunlop Tires Operations, 

S.A. v. Brown, 564 U.S. 915, 929 (2011). And it would lack

specific jurisdiction because the claims of the nonresident 

putative class members do not “arise out of or relate to” Whole 
5

Foods’ contacts with the District, Bristol-Myers, 137 S. Ct. at 

1780 (internal quotation marks and alterations omitted); rather, 

they stem from Whole Foods’ conduct at out-of-District stores.

The Employees take a different view. Acknowledging that 

a federal court sitting in diversity typically exercises personal 

jurisdiction conterminously with that of the state in which it

sits, they argue that class actions present an exception to this

general rule. According to them, Federal Rule of Civil 

Procedure 23 permits a federal court sitting in diversity to

exercise personal jurisdiction over unnamed, nonresident class 

members’ claims, even if a state court could not. 

In the alternative, the Employees argue that the district 

court should have denied Whole Foods’ motion to dismiss, not 

on the merits, but on the ground that it was premature because 

prior to class certification putative class members are not 

parties to the action. On this point, we agree. See United 

States v. Lawson, 410 F.3d 735, 740 n.4 (D.C. Cir. 2005) 

(“[W]e may affirm on grounds other than those presented and 

relied on below.”); United States v. Garrett, 720 F.2d 705, 710 

(D.C. Cir. 1983) (“It is well settled that in reviewing the

decision of a lower court, that decision must be affirmed if the 

result is correct although the lower court relied upon a wrong 

ground or gave a wrong reason.” (internal quotation marks and 

alterations omitted)). 

In Smith v. Bayer Corp., 564 U.S. 299 (2011), the Supreme 

Court explained that “[i]n general, a party to litigation is one 

by or against whom a lawsuit is brought or one who becomes a 

party by intervention, substitution, or third-party practice.” Id. 

at 313 (internal quotation marks, citations, and alterations 

omitted). “[T]he label ‘party,’” the Court observed in Devlin v. 

Scardelletti, 536 U.S. 1 (2002), “does not indicate an absolute 

characteristic, but rather a conclusion about the applicability of 
6

various procedural rules that may differ based on context.” Id. 

at 10.

For example, in certified class actions, “[n]onnamed class 

members . . . may be parties for some purposes and not for 

others.” Id. at 9–10. In Devlin, the Court held that unnamed 

class members are “considered . . . ‘part[ies]’ for the purposes

of appealing the approval of [a] settlement.” Id. at 7. Unnamed 

class members are also parties for purposes of claim 

preclusion: “a judgment in a properly entertained class action 

is binding on class members in any subsequent litigation.” 

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 

874 (1984). But unnamed class members are treated as 

nonparties for other purposes, including jurisdictional ones. In 

diversity suits, for example, unnamed class members are

nonparties for the complete diversity requirement of 28 U.S.C. 

§ 1332. See Devlin, 536 U.S. at 10 (“The rule that nonnamed 

class members cannot defeat complete diversity is . . . justified 

by the goals of class action litigation.”). Lower courts also 

generally agree that unnamed class members are not parties for 

purposes of consenting to the jurisdiction of a magistrate judge 

under 28 U.S.C. § 636(c). See Koby v. ARS National Services, 

Inc., 846 F.3d 1071, 1076 (9th Cir. 2017) (collecting cases).

By contrast, putative class members—at issue in this 

case—are always treated as nonparties. The Supreme Court

made this clear in Smith. There, a federal district court enjoined 

a state court from hearing a class certification motion because 

the federal court “had earlier denied a motion to certify a class 

in a related case, brought by a different plaintiff against the 

same defendant alleging similar claims.” Smith, 564 U.S. at 

302. The injunction was proper, the district court reasoned,

because Smith—the party seeking class certification in state 

court—was an unnamed member of the putative federal class 

action and thus barred by claim preclusion from seeking class 
7

certification in the similar state action. Id. at 313. The Supreme 

Court disagreed, holding that “the mere proposal of a class . . .

could not bind persons who were not parties.” Id. at 318. “[N]o 

one,” the Court declared, “‘advance[s] the novel and surely 

erroneous argument that a nonnamed class member is a party 

to the class-action litigation before the class is certified.’” Id.

at 313 (quoting Devlin, 536 U.S. at 16 n.1 (Scalia, J., 

dissenting)). The Court held that, absent class certification, 

Smith was not a party to the federal action and so could not be 

bound by the federal district court’s decision. Id. at 314–15; see 

also Standard Fire Insurance Co. v. Knowles, 568 U.S. 588, 

593 (2013) (“A plaintiff who files a proposed class action 

cannot legally bind members of the proposed class before the 

class is certified.”).

Whole Foods argues that in American Pipe & 

Construction Co. v. Utah, 414 U.S. 538 (1974), the Supreme 

Court held that putative class members are parties (at least) for 

the purpose of tolling statutes of limitations. Id. at 551. In 

Smith, however, the Court expressly repudiated this 

interpretation of American Pipe and its progeny, explaining 

that those decisions were “grounded in policies of judicial 

administration” and “demonstrate only that a person not a party 

to a class suit may receive certain benefits (such as the tolling 

of a limitations period) related to that proceeding.” 564 U.S. at 

313 n.10. Even for the purpose of tolling limitations periods, 

then, putative class members are not parties. 

Putative class members become parties to an action—and 

thus subject to dismissal—only after class certification. See In 

re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233, 1245 

(11th Cir. 2006) (“The granting of class certification 

under Rule 23 authorizes a district court to exercise personal 

jurisdiction over unnamed class members who otherwise might

be immune to the court’s power.”). It is class certification that
8

brings unnamed class members into the action and triggers due 

process limitations on a court’s exercise of personal

jurisdiction over their claims. See Gibson v. Chrysler Corp., 

261 F.3d 927, 940 (9th Cir. 2001) (“[A] class action, when 

filed, includes only the claims of the named plaintiff or 

plaintiffs. The claims of unnamed class members are added to 

the action later, when the action is certified as a class 

under Rule 23.”). Any decision purporting to dismiss putative 

class members before that point would be purely advisory. Cf. 

Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“[Courts’] 

judgments must resolve a real and substantial controversy 

admitting of specific relief through a decree of a conclusive 

character, as distinguished from an opinion advising what the 

law would be upon a hypothetical state of facts.” (internal 

quotation marks omitted)).

To be clear, this rule is not peculiar to class actions; rather,

it is merely a specific application of the more general principle

that personal jurisdiction entails a court’s “power over the 

parties before it.” Lightfoot v. Cendant Mortgage Corp., 137 S. 

Ct. 553, 562 (2017). Nonparties are, by definition, not “parties 

before [a court].” Id.; see In re Checking Account Overdraft 

Litigation, 780 F.3d 1031, 1037 (11th Cir. 2015) (“[T]he 

unnamed putative class members are not yet before the 

court.”). Motions to dismiss nonparties for lack of personal 

jurisdiction are thus premature—not to mention “novel and 

surely erroneous.” Smith, 564 U.S. at 313 (internal citations 

and quotation marks omitted).

Because the class in this case has yet to be certified, Whole 

Foods’ motion to dismiss the putative class members is 

premature. Only after the putative class members are added to 

the action—that is, “when the action is certified as a class 

under Rule 23,” Gibson, 261 F.3d at 940—should the district 

court entertain Whole Foods’s motion to dismiss the nonnamed 
9

class members. 

Whole Foods insists that the Employees forfeited this 

argument by failing to raise it in the district court. True, the 

Employees did not argue, as they do here, that the district court 

should have denied Whole Foods’ motion to dismiss because 

putative class members are nonparties; instead, they focused 

primarily on the scope of district court authority over 

nonresident class members post-certification. And it is also true 

that “issues and legal theories not asserted in the district court 

ordinarily will not be heard on appeal.” Prime Time 

International Co. v. Vilsack, 599 F.3d 678, 686 (D.C. Cir. 

2010) (internal quotation marks omitted).

We may, however, “consider an issue antecedent to and 

ultimately dispositive of the dispute before” us, even one “the 

parties fail to identify and brief.” U.S. National Bank of 

Oregon v. Independent Insurance Agents of America, Inc., 508 

U.S. 439, 447 (1993) (internal quotation marks and alterations 

omitted). Such an exception to the forfeiture rule squarely 

applies here because the party status of putative class members 

both precedes the question of personal jurisdiction and disposes 

of this appeal. And the exception is particularly fitting where, 

as here, the issue is a “straightforward legal question,” which 

“both parties have fully addressed.” Prime Time, 599 F.3d at 

686.

Whole Foods’ remaining arguments are without merit.

First, Whole Foods asserts that even if putative class 

members are “nominally ‘absent’ before certification, their 

claims . . . are not.” Appellant’s Reply Br. 4. Accordingly, 

Whole Foods says, it “cannot be subject to specific jurisdiction 

related to the unnamed putative class members’ claims, 

regardless of the ‘party’ status of absent class members.” Id.

Whole Foods provides scant support for this assertion, citing 
10

only stray Supreme Court language to the effect that a class 

complaint raises the specter of “classwide liability,” United 

Airlines, Inc. v. McDonald, 432 U.S. 385, 395 (1977), and 

requires defendants “to preserve evidence and witnesses 

respecting the claims of all the members of the class,” Crown, 

Cork & Seal Co. v. Parker, 462 U.S. 345, 353 (1983). These 

decisions stand for the unremarkable proposition that class 

allegations put a defendant on notice as to the scope of its 

potential liability and evidentiary obligations. But prior to class 

certification, the potential class and its potential members and 

their potential claims are just that: potentials. Personal 

jurisdiction need not be established over these hypothetical 

parties and claims because they are not “before [the court].”

Lightfoot, 137 S. Ct. at 562. More to the point, Smith forecloses 

Whole Foods’ argument: putative class members and their 

claims are joined to the action only after the class is certified. 

564 U.S. at 318. 

Next, Whole Foods argues that personal jurisdiction issues 

must be “addressed as soon as possible,” even prior to class 

certification. Appellant’s Reply Br. 19–20. But the Supreme 

Court has suggested just the opposite. In Amchem Products, 

Inc. v. Windsor, 521 U.S. 591 (1997), the Court declined to 

address whether certain putative class members’ claims “me[t] 

the then-current amount-in-controversy requirement . . . 

specified for federal-court jurisdiction based upon diversity of 

citizenship” because the jurisdictional defect “would not exist 

but for . . . class-action certification.” Id. at 612 (internal 

quotation marks and alterations omitted). The Court explained 

that where certification issues are “logically antecedent to the 

existence of any Article III issues, it is appropriate to reach 

them”—that is, the certification issues—“first.” Id. at 612; see 

also Ortiz v. Fibreboard Corp., 527 U.S. 815, 830–31 (1999) 

(taking a similar approach). The same logic applies here:

whether the putative nonresident class members are parties to 
11

the action is “logically antecedent” to whether the court has 

authority to exercise personal jurisdiction over them.

Finally, Whole Foods complains about the burdens of class

discovery. But concerns about discovery costs must yield to 

Supreme Court precedent, which makes clear that putative 

class members are nonparties prior to class certification. Smith, 

564 U.S. at 313. Moreover, “district courts have broad 

discretion in structuring discovery” to limit unnecessary or 

overly burdensome requests, including by bifurcating class and 

merits discovery. Hussain v. Nicholson, 435 F.3d 359, 363 

(D.C. Cir. 2006) (internal quotation marks omitted). The 

dissent’s concern that plaintiffs could receive extensive class 

discovery even if a hypothetical Supreme Court decision 

resolved the Bristol-Myers issue in defendants’ favor is 

therefore misplaced. See Dissenting Op. at 7–8. We review 

discovery rulings for abuse of discretion, Hussain, 435 F.3d at 

363, and a district court would necessarily abuse its discretion 

by permitting nationwide discovery on claims that Supreme 

Court precedent squarely foreclosed.

Our dissenting colleague further contends that the whole 

discussion of putative class members’ party status is beside the 

point because “Whole Foods did not move to dismiss 

nonresident putative class members; it moved to dismiss the 

named plaintiffs’ claim to represent those putative class 

members.” Dissenting Op. at 6. We respectfully disagree. 

Before the district court, Whole Foods asserted that the 

Employees alleged “no facts to support personal jurisdiction 

over . . . non-resident putative-class members” and called on 

the district court to “limit the adjudication of the remaining 

Plaintiffs’ claims as described above.” Mem. of Points and 

Authorities in Support of Defs.’ Mot. to Dismiss Pls.’ Second 

Am. Compl. 13. Although unconventionally framed, Whole 
12

Foods’ papers are best read as moving to dismiss the 

nonresident putative class members’ claims for lack of personal 

jurisdiction, not as challenging the Employees’ right to 

represent those claims consistent with Federal Rule of Civil 

Procedure 23; indeed, Whole Foods’ motion to dismiss never 

even cites Rule 23. Such a reading is bolstered by the fact that 

elsewhere in its motion Whole Foods moved to dismiss “the 

claims of purported absent class members” on other grounds, 

i.e., lack of standing. Defs.’ Mot. to Dismiss Pls.’ Second Am. 

Compl. 2. But any ambiguity over Whole Foods’ position 

before the district court is resolved by the fact that, before this 

court, Whole Foods expressly states that it “moved to dismiss 

claims asserted on behalf of nonresident putative-class 

members because there were no facts to support personal 

jurisdiction as to those nonresidents’ claims.” Appellant’s Br. 

7. Maintaining that position on appeal, Whole Foods insists

that “[t]he claims of all unnamed putative class members 

whose claims are unrelated to Whole Foods’ operations in the 

District of Columbia should be dismissed.” Appellant’s Br. 38. 

We take Whole Foods at its word that it sought, and continues 

to seek, dismissal of the nonresident putative class members’ 

claims for lack of personal jurisdiction. 

III.

For the reasons given above, we affirm the district court’s 

denial of Whole Foods’ motion to dismiss the nonresident 

putative class members and remand to the district court for 

further proceedings consistent with this opinion.

So ordered.
SILBERMAN, Senior Circuit Judge, dissenting: The majority

disposes of this appeal by concluding that Whole Foods’ motion

to dismiss was premature, notwithstanding the plaintiffs’

repeated failure to raise the issue to the district court. I would

not excuse that forfeiture. But even if we did, the majority’s

conclusion rests on the flawed premise that Whole Foods sought

to dismiss the nonresident putative class “members” and “their

claims” for lack of personal jurisdiction. Whole Foods did not

actually do that. Whole Foods moved to dismiss the claims in

the named plaintiffs’ complaint, contending that Bristol-Myers

required that those claims “should be limited to alleged injuries

occurring within the District of Columbia, pursuant to Federal

Rule of Civil Procedure 12(b)(2).” R. Doc. 30, at 1. That is a

run-of-the-mill attack on class certification at the pleading stage,

and such a motion was not premature. Because I would reach

the Bristol-Myers question and hold that class claims unrelated

to Whole Foods’ contacts with the District of Columbia cannot

proceed, I respectfully dissent.

I.

A.

As noted, the majority decides an issue—whether Whole

Foods’ motion to dismiss for lack of personal jurisdiction was

premature—notwithstanding that the issue was forfeited by the

plaintiffs by never raising it below. Recognizing this is a

violation of our normal procedure, the majority invokes the

Supreme Court’s decision in U.S. National Bank of Oregon v.

Independent Insurance Agents of America, Inc., 508 U.S. 439

(1993). As I have written before, that opinion, justifying a

federal court’s discretion to reach out and decide a forfeited or

waived issue, is a serious attack on fundamental notions of

federal judicial restraint. See United States v. Moore, 110 F.3d

99, 101–02 (D.C. Cir. 1997) (Silberman, J., dissenting from the

denial of rehearing en banc). After all, the very notion of

deciding a case or controversy necessarily implies resolving the
2

contentions of the parties before the court—not gratifying the

musings of judges acting like law professors or worse yet,

activist policymakers. Careful observers of Supreme Court

opinions will recognize Independent Insurance Agents as an

indication that the Court, unfortunately, sees itself not as a

tribunal limited to actual cases, but rather one that, all too often,

regards its role as a body that decides legal issues—somewhat

like the Supreme Judicial Court of Massachusetts, which is

authorized to deliver advisory opinions.1

Since the Supreme Court did not set forth any standard that

would govern this discretionary authority—it would’ve been

analytically impossible—it is available for any federal court to

exercise when it wishes a certain result. That, of course,

undermines perhaps the most important governing concept of

judicial decisionmaking, i.e., that the process be fair. Allowing

a court to reach a ground not preserved by the parties is

dreadfully unfair to the party against whom that discretion is

brandished. That is why I will never rely on Independent

Insurance Agents in any of my opinions.

B.

Since my colleagues rely on Independent Insurance Agents

to reach the issue of prematurity, I feel obliged to demonstrate

why, even if the issue had been properly raised, the plaintiffs’

argument should be rejected. The majority opinion is based on

the premise that Whole Foods’ Rule 12(b)(2) motion to dismiss

for lack of personal jurisdiction necessarily was aimed at

dismissing the putative class “members” and “their claims” as

parties. Op. at 2, 4, 7, 8, 10, 12. Putative class members are not

I have often thought that the Supreme Court would have greater

1

impact on the lower courts if its focus was on the way it decides cases

rather than what it decides.
3

“parties” to the action for any purpose, so the reasoning goes,

thus before class certification there are no parties (other than

those named) for a district court to dismiss. I think the key

premise is false.2

Whole Foods moved to dismiss the “claims” in the

plaintiffs’ “class action complaint,” and contended that whatever

claims remained “should be limited to alleged injuries occurring

within the District of Columbia, pursuant to Federal Rule of

Civil Procedure 12(b)(2).” R. Doc. 30, at 1. The motion did not

ask for dismissal of any person, let alone the putative class

members. Nor did the motion specify that the “claims” it

challenged for lack of personal jurisdiction were those of the

putative class members as opposed to those of the named

plaintiffs. Instead, on the first occasion Whole Foods had to

3

respond to the plaintiffs’ new argument—in its reply brief in this

court—Whole Foods describes itself as “challeng[ing]” “class

The majority also states that an order granting Whole Foods’ 2

motion would be “purely advisory,” raising the specter of an Article

III problem. Op. at 8. But that is a chimera. What is outside the

power of federal courts that lack subject matter jurisdiction is

adjudication on the merits. In re Papandreou, 139 F.3d 247, 255

(D.C. Cir. 1998); see Sinochem Int’l Co. v. Malaysia Int’l Shipping

Corp., 549 U.S. 422, 431 (2007). A court that dismisses claims or

persons for lack of personal jurisdiction makes no assumption of that

sort of law-declaring power, see Papandreou, 139 F.3d at 255; it does

the exact opposite. The majority’s citation to Preiser v. Newkirk, 422

U.S. 395 (1975), is appropriately halfhearted because the Court in

Preiser was faced with a merits question. See id. at 400–01.

The majority notes the use of different language in a different 3

part of the motion to dismiss, and reasons that Whole Foods probably

intended the same meaning in the portion at issue. Op. at 12. One

might just as easily come to the opposite conclusion, and that would

certainly be a fairer reading of the motion.
4

definitions” and “class allegations.” Appellant’s Reply Br. at

21. And critically, Whole Foods explains in its reply brief that 4

insofar as the motion to dismiss did target the claims of putative

class members, Whole Foods sought to do so independent of the

putative class members themselves. The putative class

members’ claims are nominally present in the case, Whole

Foods argues, even if the class members themselves are not. 

Appellant’s Reply Br. at 4.

The majority acknowledges the latter point, yet it contends

that there is scant authority for Whole Foods’ attempt to dismiss

claims without dismissing parties. But my colleagues overlook

the fundamental proposition that a named plaintiff attempting to

bring a class action has two legally cognizable interests. The

first is his underlying claim on the merits; the second is “the

claim that he is entitled to represent a class.” Richards v. Delta

Air Lines, Inc., 453 F.3d 525, 528 (D.C. Cir. 2006) (quoting U.S.

Parole Comm’n v. Geraghty, 445 U.S. 388, 402 (1980)). That

latter claim of entitlement is what courts adjudicate when

considering motions for class certification. And if, as Whole

Foods argues, its own challenge is aimed at claims independent

of parties, that necessarily implies it is challenging the named

plaintiffs’ alleged entitlement to bring those claims on behalf of

the putative class members. In other words, taking aim at the

“claims asserted on behalf of nonresident putative class

members,” Op. at 12 (quoting Appellant’s Br. at 7), is just a

Acknowledging that the motion to dismiss is “unconventionally

4

framed,” the majority supports its reading with language from Whole

Foods’ opening brief on appeal. Op. at 11–12. That is doubly unfair. 

Not only must Whole Foods address an issue for the first time on

appeal, but also it is penalized for the imprecise language it used

before the characterization of the motion to dismiss was even at issue. 

If we are to consult any of Whole Foods’ filings beyond the motion

itself here, it should be the reply brief.
5

shorthand for attacking the named plaintiffs’ ability to pursue

those claims. The majority concedes that a district court would

abuse its discretion by permitting nationwide discovery “on

claimsthat Supreme Court precedent squarely foreclosed,” Op.

at 11 (emphasis added), so the majority implicitly also concedes

that those “claims” exist independent of the putative class

members before class certification.

Moreover, a motion challenging class representation need

not wait until the plaintiffs move for class certification. See Fed.

R. Civ. P. 23(c)(1)(A). The Supreme Court has recognized that

“[s]ometimes the issues are plain enough from the pleadings to

determine whether the interests of the absent parties are fairly

encompassed within the named plaintiff’s claim.” Gen. Tel. Co.

of Sw. v. Falcon, 457 U.S. 147, 160 (1982). If a named

plaintiff’s claim of entitlement to represent a class is defective

as a matter of law, for example, because the court would lack

personal jurisdiction over the defendant with respect to class

claims, a defendant’s motion to dismiss or narrow the

representative claim on those grounds is not premature.5

Granting such a motion would be the “functional equivalent” of

denying a motion for class certification, and that decision would

be a candidate for interlocutory appeal. Scott v. Family Dollar

Stores, Inc., 733 F.3d 105, 110 n.2 (4th Cir. 2013); see Microsoft

Corp. v. Baker, 137 S. Ct. 1702, 1711 n.7 (2017). Whole Foods’

motion attacking the named plaintiffs’ representative claim thus

was not premature.

To be sure, as the majority points out, Whole Foods did not

cite Rule 23 in its motion to dismiss. But that is of little

Two of our sister circuits permit pleading-stage challenges to 5

class allegations on motions that invoke Rule 12(b)(6). See McCrary

v. Stifel, Nicolaus & Co., 687 F.3d 1052, 1059 (8th Cir. 2012); John

v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 444–45 (5th Cir. 2007).
6

significance. Whole Foods understandably relied on Rule

12(b)(2), which permits a party to “assert the . . . defense[]” of

“lack of personal jurisdiction.” If as a matter of law the named

plaintiffs seek to bring claims in a representative capacity over

which the district court lacks personal jurisdiction, the court’s

focus will not be on the requirements set out in Rule 23(a) and

(b).

The majority’s chief authority, Smith v. Bayer Corp., 564

U.S. 299 (2011), is quite beside the point. In Smith, the

Supreme Court held that members of a failed proposed class are

not “parties” for purposes of claim preclusion and therefore are

not bound in later proceedings. See id. at 312–15. Smith may

or may not settle the party status of putative class members for

personal jurisdiction purposes, but whether the putative class 6

members are “parties” does not matter in this case: as I have

explained, Whole Foods did not move to dismiss nonresident

putative class members; it moved to dismiss the named

plaintiffs’ claim to represent those putative class members. 

Smith says nothing that would cast doubt on a district court’s

authority to rule on a named plaintiff’s representative claim at

the pleading stage. If anything, Smith removes a potential

concern about pleading-stage challenges to claims of class

entitlement since, in the absence of certification, putative class

members will not be precluded by anything the court does. Id.

In this case, for example, if Whole Foods were to succeed on its

Smith did not purport to change the principle from Devlin v. 6

Scardelletti, 536 U.S. 1 (2002), that the party status of unnamed class

members “may differ based on context.” Id. at 10. The more

sweeping language in Smith upon which my colleagues repeatedly rely

thus is arguably dictum. This is a minor point, however, since my

principal contention is that the party status of putative class members

is irrelevant to whether Whole Foods’ motion was premature.
7

motion, nonresident putative class members would not be issue

precluded on the question of personal jurisdiction in future suits.

I note that numerous district courts—not seeing Smith as a

barrier—have ruled on the applicabilityof Bristol-Myersto class

actions on motions invoking Rule 12(b)(2). The district court 7

(and the plaintiffs, for that matter) didn’t bat an eye at Whole

Foods’ motion below because it was an appropriate pleadingstage challenge to the plaintiffs’ class allegations.

If the majority were correct that such motions are

premature, then a hypothetical named plaintiff would be entitled

to extensive class discovery even after an on-point decision by

See, e.g., Leppert v. Champion Petfoods USA Inc., No. 18 C

7

4347, 2019 WL 216616 (N.D. Ill. Jan. 16, 2019); Lee v. Branch

Banking &Tr. Co., No. 18-21876-Civ-Scola, 2018 WL5633995 (S.D.

Fla. Oct. 31, 2018); Morgan v. U.S. Express, Inc., No. 3:17-cv-00085,

2018 WL 3580775 (W.D. Va. July 25, 2018); Becker v. HBN Media,

Inc., 314 F. Supp. 3d 1342 (S.D. Fla. 2018); Chavez v. Church &

Dwight Co., No. 17 C 1948, 2018 WL 2238191 (N.D. Ill. May 16,

2018) (evaluatingRule 12(b)(6)motion under Rule 12(b)(2)); Tickling

Keys, Inc. v. Transamerica Fin. Advisors, Inc., 305 F. Supp. 3d 1342

(M.D. Fla. 2018); Sanchez v. Launch Tech. Workforce Sols., LLC, 297

F. Supp. 3d 1360 (N.D. Ga. 2018); McDonnell v. Nature’s Way

Prods., LLC, No. 16 C 5011, 2017 WL 4864910 (N.D. Ill. Oct. 26,

2017); Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., No. 17-cv00564, 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017).

Other courts have considered the issue prior to certification on

motions to strike allegations from the complaint. See, e.g., Jones v.

Depuy Synthes Prods., Inc., 330 F.R.D. 298 (N.D. Ala. 2018); Al Haj

v. Pfizer Inc., 338 F. Supp. 3d 815 (N.D. Ill. 2018). Whole Foods

understandably invoked Rule 12(b)(2). But even if another Rule were

a better fit, the named plaintiffs never objected to Whole Foods’ use

of Rule 12(b)(2), and I see no meaningful difference between the

various plausible options in this context.
8

the Supreme Court concluding, as I do, that the principles in

Bristol-Myers extend to class actions. In this case, for instance,

the district court noted that “[d]iscovery . . . in its present form,

promises to be drawn out, complex, and expensive.” The

plaintiffs intend to take discovery of payroll records from more

than 200 Whole Foods grocery stores in order to certify the

nationwide class. And if the alleged misconduct appears to

extend to related operating companies, the plaintiffs intend to

amend their complaint to expand the class to include employees

of nearly 300 other stores. Then comes class discovery about

those stores. If the named plaintiffs’ nationwide class allegation

is dismissed, however, that number shrinks to the five stores

operated by Whole Foods in the District. As the district court

put it, “[t]he difference in scope of these two scenarios need not

be belabored.” And, importantly, there may be incentives for

plaintiffs to pursue that discovery effort even if the ultimate

legal issue were settled.

The majority appears to concede that if a district court

permitted extensive discovery in the face of a Supreme Court

decision answering the certified question the way I do, it would

constitute an abuse of discretion as a matter of law. But are not

courts of appeals equally obliged to decide questions of law?

There is no relevant difference, in other words, between a prior

Supreme Court decision extendingBristol-Myersto class actions

and a decision by this court to that effect. And why should the

Bristol-Myers question be dealt with during discovery instead of

at the pleading stage? If Whole Foods were to preserve and

appeal a Bristol-Myers-based objection to the district court’s

nationwide discovery rulings, and if we agreed that

Bristol-Myers applied, we would hold, like the majority says,

that the district court abused its discretion by making an error of

law. See Koch v. Cox, 489 F.3d 384, 388 (D.C. Cir. 2007). The

majority thus simply has moved the district court’s

consideration of the effect of governing personal jurisdiction
9

rules on certain “claims” to the class discovery phase. Again I

ask, what are these “claims,” if not those of putative class

members, used as a shorthand for the representative claim of the

named plaintiffs? The majority does not say, but whatever the

characterization of those claims, if a court can evaluate them for

personal jurisdiction purposes at discovery, it can do the same

at the pleading stage. And the latter is more appropriate in any

event because, as I explained, an order granting Whole Foods’

motion would be the functional equivalent of a denial of class

certification and thus would be a candidate for interlocutory

appeal. See Scott, 733 F.3d at 110 n.2; Microsoft Corp., 137 S.

Ct. at 1711 n.7.

II.

The issue that actually divided the parties below is what

effect, if any, the Supreme Court’s decision in Bristol-Myers

Squibb Co. v. Superior Court of California, 137 S. Ct. 1773

(2017), has on class actions in federal courts. That question is

the subject of the order that the district court certified. Whole

Foods asserts that after Bristol-Myers, a class

action—presumably in both state and federal court—cannot

proceed against a defendant insofar as the suit includes claims

of absent class members over which the court lacks personal

jurisdiction. The plaintiffs, on the other hand, argue that BristolMyers doesn’t apply to class actions at all, and that even if it

does in state courts, it is inapplicable in this case because the

Fifth Amendment and Federal Rule of Civil Procedure 23 permit

expansive assertions of personal jurisdiction by federal courts.

In Bristol-Myers, the Supreme Court reaffirmed the

constitutional limits on a state court’s assertion of personal

jurisdiction over an out-of-state defendant. See 137 S. Ct. at

1781. (I emphasize “defendant” because the Court made a point

to distinguish Phillips Petroleum Co. v. Shutts, 472 U.S. 797
10

(1985), which dealt with the due process rights of absent class

member plaintiffs, as irrelevant. See Bristol-Myers, 137 S. Ct.

at 1782–83.).

The Court reiterated that courts have general jurisdiction

over a corporate defendant, and may hear any and all claims

against it, in forums where that defendant is fairly regarded as

at home. Id. at 1780. The place of incorporation and the

principal place of business are the paradigm forums for

exercising general jurisdiction over corporate defendants. 

Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). For Whole

Foods, those forums are Texas and Delaware. (It is worth

noting that the plaintiffs could have avoided this whole personal

jurisdiction imbroglio simply by driving 110 miles down the

road and filing this class action in Wilmington.) Other courts

may exercise specific jurisdiction over the defendant only with

respect to claims that arise out of or relate to the defendant’s

contacts with the forum. See Bristol-Myers, 137 S. Ct. at

1780–81.

Those principles were established prior to Bristol-Myers. 

See id. at 1779–81. Bristol-Myers rejected almost unanimously

an effort by the California Supreme Court to relax the

requirements of specific jurisdiction for eight suits brought by

hundreds of joint plaintiffs—many of whom alleged injuries that

had no connection with California. Id. at 1778, 1781. The

California Supreme Court had applied what it called a “sliding

scale approach” to specific personal jurisdiction. Id. at 1778. 

Under that approach, the greater the defendant’s contacts with

the forum, the less direct the connection needed to be between

those contacts and the out-of-state claims. See id. at 1778–79. 

In light of Bristol-Myers’ extensive contacts with the state, the

state court concluded that it had specific jurisdiction over the

out-of-state claims because they were similar in several ways to

the in-state claims: they were based on the same allegedly
11

defective product, the same marketing, and the same promotion

of that product. Id. at 1779. The Supreme Court disagreed,

explaining that the existence of “similar” in-state claims was

insufficient to support personal jurisdiction over the out-of-state

claims. See id. at 1781. Due process protected Bristol-Myers

from being haled into a state court on claims that had no

independent connection to the forum. Id. at 1780–81.

Although the Supreme Court avoided opining on whether

its reasoning in the mass action context would apply also to

class actions, it seems to me that logic dictates that it does.8

After all, like the mass action in Bristol-Myers, a class action is

just a species of joinder, which “merely enables a federal court

to adjudicate claims of multiple parties at once, instead of in

separate suits.” Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co., 559 U.S. 393, 408 (2010) (plurality opinion). 

And since the requirements of personal jurisdiction must be

satisfied independently for “the specific claims at issue,”

Bristol-Myers, 137 S. Ct. at 1781, I think that personal

jurisdiction over claims asserted on behalf of absent class

members must be analyzed on a claim-by-claim basis.

The plaintiffs argue, however, that the reasoning of BristolMyers does not apply to class actions (in state or federal court)

because absent class members should not be considered

“parties” for personal-jurisdiction purposes. The district court

agreed, following the lead of other courts that have read BristolMyers to apply only to claims asserted by “real part[ies] in

I have always been wary of Holmes’s statement that the life of 8

the law has not been logic, but experience. See Oliver Wendell

Holmes, Jr., The Common Law 1 (1881). Experience, as Holmes

readily conceded, includes considerations of policy. Such

considerations may be appropriate in the common law and in

Congress, but not in federal courts.
12

interest.” Molock v. Whole Foods Mkt., Inc., 297 F. Supp. 3d

114, 126 (D.D.C. 2018); see id. (collecting cases). But neither

the plaintiffs, nor the district court, nor the courts upon which it

relied sufficiently explain whypartystatus matters. Some courts

(and the plaintiffs here) focus on the Supreme Court’s

statements in Devlin v. Scardelletti, 536 U.S. 1 (2002), that

absent class members may be parties for some purposes and not

for others, because “[t]he label ‘party’ does not indicate an

absolute characteristic, but rather a conclusion about the

applicability of various procedural rules that maydiffer based on

context.” Id. at 9–10; see, e.g., Bristol-Myers, 137 S. Ct. at 1789

n. 4 (Sotomayor, J., dissenting); Al Haj v. Pfizer Inc., 338 F.

Supp. 3d 815, 819 (N.D. Ill. 2018). In Devlin, the Court was

faced with the question whether absent class members can

appeal a court-approved settlement. Id. at 7. But the reason

why party status mattered in Devlin was that the Court had

previously held that only parties to a lawsuit may appeal an

adverse judgment. See id. I do not read Devlin to make party

status the key to all disputes about absent class members.

Indeed, for the question at hand, the party status of absent

class members seems to me to be irrelevant. The Court’s focus

in Bristol-Myers was on whether limits on personal jurisdiction

protect a defendant from out-of-state claims, see 137 S. Ct. at

1781, and a defendant is subject to such claims in a nationwide

class action as well. A court’s assertion of jurisdiction over a

defendant exposes it to that court’s coercive power, so such an

assertion must comport with due process of law. See Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 918

(2011). A court that adjudicates claims asserted on behalf of

others in a class action exercises coercive power over a

defendant just as much as when it adjudicates claims of named

plaintiffs in a mass action. After all, the goal of a nationwide

class action is “a binding judgment over the defendant as to the

claims of the entire nationwide class—and the deprivation of the
13

defendant’s property accordingly.” 2 William B. Rubenstein,

Newberg on Class Actions § 6:26 (5th ed. 2019). And much

like the class action mechanism cannot circumvent the

requirements of Article III, see Tyson Foods, Inc. v.

Bouaphakeo, 136 S. Ct. 1036, 1053 (2016) (Roberts, C.J.,

concurring), it is not a license for courts to enter judgments on

claims over which they have no power. A defendant is therefore

entitled to due process protections—including limits on

assertions of personal jurisdiction—with respect to all claims in

a class action for which a judgment is sought. See 2 Rubenstein,

Newberg on Class Actions § 6:26.9

The district court also distinguished Bristol-Myers on the

ground that the present class action must eventually satisfy the

requirements of Federal Rule of Civil Procedure 23, which, in

its view, adequately protect a defendant’s due process rights. 

Since Rule 23 ensures that a defendant will be presented with a

“unitary, coherent claim,” as one court put it, some have thought

that it is not unfair to bring the defendant into a court where it

will be sued on local claims anyway to provide a “unitary,

coherent defense.” Sanchez v. Launch Tech. Workforce Sols.,

297 F. Supp. 3d 1360, 1366 (N.D. Ga. 2018).

I do not think, however, that Rule 23’s standards are an

adequate substitute for normal principles of personal

jurisdiction. On its face, the Rule primarily focuses on the

relationship between the claims of the named representatives

For the same reasons, even if the plaintiffs’ broad reading of 9

Devlin were correct (i.e., that party status is the relevant inquiry, one

that depends on context), I would conclude that absent class members

are parties for purposes of personal jurisdiction over the defendant. 

The relevant “context” here is the set of principles that limits courts

from holding defendants liable for out-of-state claims, which is

precisely the relief that this nationwide class action seeks.
14

and the absent class members. Much of it could be described 10

as requiring sufficient similarity between those claims. But as 11

described above, using the “similarity” of claims to relax the

standards of personal jurisdiction was one of the mistakes that

the state court made in Bristol-Myers. See 137 S. Ct. at 1779,

1781. The Supreme Court explained that even where the claims

at issue are similar, limits on personal jurisdiction guard against

more than just inconvenience for a defendant. They go to “the

more abstract matter of submitting to the coercive power of a

State that may have little legitimate interest in the claims in

question.” Id. at 1780. In this case, for example, states where

Whole Foods does only some of its business may have no

connection to, and no legitimate interest in, claims arising from

Whole Foods’ dealings elsewhere. Rule 23 and its state

analogues offer no protection in that respect; limits on personal

jurisdiction do. To be sure, it may not immediately be apparent

how that “more abstract” interest protected by limits on personal

jurisdiction is implicated by a suit in federal court, but as I shall

explain, Federal Rule of Civil Procedure 4(k)(1)(A)supplies the

same concern for horizontal federalism. For now, the point is

that Rule 23 and its state analogues are not a substitute for

normal limits on personal jurisdiction.

In the alternative, the plaintiffs contend that even if BristolMyers applies to class actions generally, federal courts are

The Rule requires, inter alia, that there are questions of law or 10

fact common to the class, that the claims or defenses of the

representative parties are typical of the claims or defenses of the class,

and that the representative parties will fairly and adequately protect

the interests of the class. See Fed. R. Civ. P. 23(a).

See Fed. R. Civ. P. 23(a); id. R. 23(b)(3) (requiring that

11

common questions of law or fact predominate over questions affecting

only individual class members).
15

permitted by the Fifth Amendment and Rule 23 to exercise

personal jurisdiction over the nationwide claims at issue here. 

Unlike in state courts, which are governed by the Fourteenth

Amendment, due process limitations on federal courts are

governed by the Fifth Amendment. Livnat v. Palestinian Auth.,

851 F.3d 45, 54 (D.C. Cir. 2017). In both contexts, courts may

exercise specific jurisdiction over a defendant only if the claims

at issue arise out of or relate to the defendant’s minimum

contacts with the forum. See id. at 48, 54–55. The scope of the

relevant contacts can differ between state and federal courts,

however, because the relevant “forum” can differ. Id. at 55. 

The forum for a state court is the state itself. Id. But standing

alone, the Fifth Amendment requires only that the claims at

issue in a federal court arise out of the defendant’s minimum

contacts with the United States as a whole. Id.; see In re Sealed

Case, 932 F.3d 915, 925 (D.C. Cir. 2019). Thus nothing in the

Constitution would prevent Congress from authorizing a federal

court to exercise specific personal jurisdiction over claims in

this nationwide class action, so long as the claims arise out of

Whole Foods’ minimum contacts with the United States.

But Congress has done no such thing. Congress typically

authorizes us to exercise personal jurisdiction by way of statutes

or Rules that authorize service of process on a defendant. See

BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1555 (2017). The

governing Rule in this case is Federal Rule of Civil Procedure

4(k)(1)(A), which reads in relevant part, “(1) In General. 

Serving a summons or filing a waiver of service establishes

personal jurisdiction over a defendant: (A) who is subject to the

jurisdiction of a court of general jurisdiction in the state where

the district court is located.” The effect of this provision is that

in the absence of another statute or Rule expanding the reach of

effective service of process, a district court’s analysis of

personal jurisdiction in a civil action will be identical to the

Fourteenth Amendment inquiry undertaken by the relevant state
16

court. In re Sealed Case, 932 F.3d at 924. No other statute or

Rule currentlyauthorizes a more expansive assertion of personal

jurisdiction in this case, See 2 Rubenstein, Newberg on Class

Actions § 6:26, so the district court may exercise personal

jurisdiction over Whole Foods only with respect to claims

arising out of or relating to its contacts with the District of

Columbia.12

The plaintiffs and an amicus contend that while Rule

4(k)(1)(A) limits the reach of the district court’s personal

jurisdiction over Whole Foods at the outset of the suit, the Rule

has no force when absent class members’ claims are later added

to the suit at certification. Otherwise, they argue, all class

members would be required to serve process on Whole Foods at

certification, which obviously is not the law.

This argument equates the method of service that Rule

4(k)(1) provides for initiating suits generally (“[s]erving a

summons or filing a waiver of service”) with the territorial

limitations on amenability to service (and therefore personal

jurisdiction) set out in that provision’s subsections. See Omni

Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97,

103 n.6 (1987) (distinguishing between the two). The former

applies only when the suit is initiated, but the latter remain

operative throughout the proceedings. Amended complaints, for

example, are usually served on defendants pursuant to Rule

5(a)(1), but the claims they contain are still subject to the limits

The Federal Rules of Civil Procedure treat the District of 12

Columbia as a “state.” Fed. R. Civ. P. 81(d)(2). The District, in turn,

generally construes the relevant portions of its long-arm statute to be

coextensive with the limits set by the Due Process Clause of the

Fourteenth Amendment. See Forras v. Rauf, 812 F.3d 1102, 1106

(D.C. Cir. 2016); Mouzavires v. Baxter, 434 A.2d 988, 990–91 (D.C.

1981) (en banc) (per curiam).
17

of the applicable subsection of Rule 4(k)(1). See, e.g., Old

Republic Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895, 902–03

(10th Cir. 2017) (evaluating amended complaint under Rule

4(k)(1)(A)). Otherwise, litigants could easily sidestep the

territorial limits on personal jurisdiction simply by adding

claims—or by adding plaintiffs, for that matter—after

complying with Rule 4(k)(1)(A) in their first filing. That, too,

is decidedly not the law. So while absent class members will

not be required to serve process on Whole Foods under Rule

4(k)(1) at certification, the territorial limit on personal

jurisdiction set out in Rule 4(k)(1)(A) will still be in effect. See

generally A. Benjamin Spencer, Out of the Quandary: Personal

Jurisdiction Over Absent Class Member Claims Explained, 39

Rev. of Litig. 31 (2019).

The continuing effect of Rule 4(k)(1)(A)’s territorial

limitation at the class certification stage also rebuts the

plaintiffs’ contention that Rule 23 of its own force authorizes

district courts to adjudicate nationwide claims. Rule 23’s

standards for certifying federal class actions do not address

personal jurisdiction, either explicitly or implicitly. Cf. In re

Sealed Case, 932 F.3d at 925. The same goes for the Class

Action Fairness Act. See 28 U.S.C. § 1332(d).

* * *

The plaintiffs and an amicus contend that my conclusions

would have a devastating impact on the viability of class

actions. I think that prediction is vastly overstated. As I pointed

out above, these plaintiffs could have brought a nationwide class

action against Whole Foods in Delaware without any personal

jurisdiction difficulties. Cf. Bristol-Myers, 137 S. Ct. at 1783. 

And Whole Foods employees may be able to file statewide class

actions in their own respective states. Cf. id. Further, my views

do not call into question the use of multidistrict litigation, since
18

cases subject to that process are eventually returned to their

original courts for trial purposes. See Lexecon Inc. v. Milberg

Weiss Bershad Hynes & Lerach, 523 U.S. 26, 34, 40 (1998); 28

U.S.C. § 1407(a).

Moreover, the limits that do follow from applying BristolMyers to class actions in federal court are no different from the

limits that apply when individual plaintiffs sue on their own

behalf, and that must be tolerated under current law. For

example, it is true that plaintiffs likely would be unable to bring

a unitary nationwide class action against two or more defendants

who are subject to general jurisdiction in different states. Cf.

Bristol-Myers, 137 S. Ct. at 1789 (Sotomayor, J., dissenting). 

And it is hard to see how a nationwide class action could

proceed against a foreign defendant who is not subject to general

jurisdiction anywhere in the United States, at least in diversity

cases. Cf. id; Fed. R. Civ. P. 4(k)(2). But similarly an

individual plaintiff—not a class action—ordinarily cannot bring

these sorts of defendants into a court to answer to claims that

have nothing to do with the forum. And procedural tools like

class actions and mass actions are not an exception to ordinary

principles of personal jurisdiction. The Court was apparently

willing to live with the consequences of that fact in BristolMyers, see 137 S. Ct. 1789 (Sotomayor, J., dissenting), and we

should do likewise.13

Since the Court made clear in Bristol-Myers that it was merely

13

applying settled law, 137 S. Ct. at 1781, 1783, it israther puzzling that

challenges to class actions on these grounds were not raised until

recently. Bristol-Myers seems to have focused the attention of

defendants on the implications of the Court’s prior personal

jurisdiction decisions.