The U.S. Supreme Court's decision not to resolve a multi-circuit conflict regarding the standard for issuing collective action notice could lead to forum shopping, some attorneys said, while others said the justices' refusal to tackle whether out-of-state workers can join collectives will rein in such efforts.

The high court's Monday related certiorari denials in Cracker Barrel Old Country Store Inc. v. Andrew Harrington et al. and Andrew Harrington et al. v. Cracker Barrel Old Country Store Inc. stemmed from the same Ninth Circuit decision. This left intact four different approaches across circuits to issuing notice in proposed collective actions and also the view of numerous circuits that only in-state workers can join a collective unless it is brought where the defendant is headquartered or incorporated.

Now, management-side attorneys said they expect workers to seek to bring proposed collective actions in circuits with more lenient approaches to certification. But the jurisdictional issue the justices declined to touch means workers still might hit certification hurdles.

"Both of those issues are at the core of the procedure that ought to apply to these nationwide collective actions," said Gerald L. Maatman, Jr. of management-side firm Duane Morris LLP.

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