Petition for Writ of Mandamus to the United States District
Court for the Southern District of Texas
SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
E. SMITH, Circuit Judge.
Chase Bank N.A. ("Chase") petitions for a writ of
mandamusafter 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.
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.
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.
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
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. 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 enforce-ability of
those agreements. Instead, they maintained that employees who
had valid arbitration agreements would arbitrate, and those
who did not would proceed in court.
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
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."
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 (2004). Second, this
court "must be satisfied that the writ is appropriate
under the circumstances." Id. at 381. Third,
the petitioner must demonstrate a "clear and
indisputable right to the writ." Id.
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.
this court "must be satisfied that the writ is
appropriate under the circumstances." Cheney,
542 U.S. at 381. 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).
relief would be especially appropriate here. Whether notice
of a collective action may be sent to Arbitration Employees
is an increasingly recurring issue. Federal district courts have
splintered over it,  and no court of appeals has weighed in.
The issue thus has importance well beyond this case, so
mandamus relief would be appropriate.
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" or that "there has been a usurpation
of judicial power." 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.
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 (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 ...