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 employees initiated a diversity action in the District Court for the District of Columbia seeking to represent a putative class. Whole Foods moved to dismiss on several grounds, including 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, which the D.C. Circuit Court of Appeals granted.

Initially, the Court notes that the Supreme Court carefully limited its holding in Bristol-Meyers Squibb: “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.” 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.”

At the same time, however, “putative class members – at issue in this case – are always treated as nonparties….  Putative class members become parties to an action – and thus subject to dismissal – only after class certification….  Because the class in this case has yet to be certified, Whole Foods’ motion to dismiss the putative class members is premature.”


Molock v. Whole Foods, 952 F.3d 293 (D.C. Cir. 2020).