UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joshua Winsor, on behalf of himself and all others similarly situated, Plaintiff Case No. 19-cv-992-SM v. Opinion No.

TBD Pizza, Inc., Eric DeLorenzo, Robert P. Rivard, John Doe Corporation 1-10, and John Doe 1-10, Defendants

O R D E R

This case presents an interesting variant of a preliminary

question regarding when formal notice of a collective wage

action under the Fair Labor Standards Act should be given to

potential members. Courts seem to be resolving that question in

different, and conflicting ways. Plaintiff asserts state law

wage claims, but his primary claim alleges that his employer is

violating the federal minimum wage provisions of the Fair Labor

Standards Act,

, et. seq. He seeks to litigate

on behalf of a “collective” of all similarly situated employees.

Accordingly, plaintiff moves for “conditional certification” of

the described collective, and seeks authorization to send formal

“notice” of the collective action to those similarly situated

employees, so each may be made aware of the suit, and may decide whether or not to “opt in” to the collective. Unlike plaintiff,

most members of the proposed collective signed arbitration

agreements that facially preclude their participation in a

collective wage suit. That is not an uncommon situation, and

raises familiar questions about whether notice should be given

to those employees. What is different here is that the

arbitration agreements include a mandatory forum selection

clause, requiring any enforcement or other legal action to

construe or apply the agreements’ terms to be brought in a

federal or state court in Boston, Massachusetts.

Defendant TBD Pizza, Inc., is incorporated and

headquartered in Massachusetts. Defendants DeLorenzo and Rivard

own TBD, which owns and operates six Domino’s Pizza stores,

three of which are located in New Hampshire, and three in

Massachusetts. At those stores, defendants employ delivery

drivers, who deliver pizzas and other food items to customers’

homes and workplaces, using their own vehicles. Plaintiff says

defendants do not fully reimburse the delivery drivers for

automobile-related expenses. Plaintiff argues that the

difference between what TBD reimburses and the actual expenses

incurred by drivers amounts to a “kick back” to defendants,

which results in effectively reduced hourly wages that fall

below federal and state minimum requirements.

2 Winsor moves the court to “conditionally certify” a

collective action under the FLSA and seeks authorization to send

formal “notice” of that action to all similarly situated current

and former delivery drivers employed by defendants in New

Hampshire and Massachusetts. Defendants object, arguing that

formal notice should not be sent to at least 368 TBD delivery

drivers – nearly all of the employees who would make up the

proposed collective – because each has entered into a mutually-

binding arbitration agreement subjecting all employment-related

claims to arbitration. Those agreements, defendants say,

preclude participation in a collective wage lawsuit.1

Under the arbitration agreements, TBD employees are

obligated to submit employment-related claims to arbitration,

including wage claims brought under the FLSA. See Rivard

Affidavit ¶ 11 (document no. 28-1). See also Rivard Aff., Exh.

A, ¶2(i). The arbitration agreements specifically provide that

“[a]rbitration of any and all claims and disputes covered by

this Agreement shall be submitted, and conducted on an

individual basis, not a class, collective, or representative

basis.” See

Exh. A at ¶4. The agreements further require

1 Defendants also argue that the court lacks personal jurisdiction over them with respect to claims by any Massachusetts plaintiffs, and, therefore, notice should not be sent to any delivery drivers who worked at their Massachusetts stores.

3 that any dispute or claim relating to the scope, validity, or

enforceability of the agreement also be submitted to

arbitration. Finally, and critically, the arbitration

agreements include a mandatory forum selection clause that

reads: “[a]ny action brought to interpret and/or enforce this

Agreement shall be tried in state or federal courts located in

Boston, Massachusetts; all claims to improper venue and forum

non conveniens are waived.”2 Rivard Affidavit, Exh. A at ¶10.

Without “accurate and timely notice concerning the pendency

of the collective action,” employees cannot “make informed

decisions about whether to participate.” Hoffmann-La Roche Inc.

v. Sperling,

(1989). Defendants contend,

however, that TBD delivery drivers subject to arbitration

agreements should not receive notice of the proposed collective

because they cannot make an informed decision about whether to

participate, because they are contractually precluded from doing

so. Giving futile notice, they argue, might put the court in

the position of improperly “stirring up litigation,” or seeming

to implicitly endorse the merits of the plaintiff’s claims,

which the Supreme Court has plainly discouraged. See Hoffmann-

2 As mentioned, defendants assert that at least 368 current and former delivery drivers have entered into arbitration agreements with TBD, based on its preliminary review of personnel records. (TBD has not located an arbitration agreement between TBD and plaintiff.)

4 La Roche v. Sperling,

(1989) (“[i]n exercising

the discretionary authority to oversee the notice-giving

process, courts must be scrupulous to respect judicial

neutrality. To that end, trial courts must take care to avoid

even the appearance of judicial endorsement of the merits of the

action.”). Defendants assert that the agreements are valid,

enforceable, and applicable to the present dispute.

Whether a TBD delivery driver is entitled to notice depends

on his or her being similarly situated to the plaintiff and

eligible to opt into the collective. The plaintiff is not bound

by the arbitration agreement (at least defendants have not

produced one that he signed). Drivers who are bound by the

arbitration agreements are facially ineligible but might be

eligible if the arbitration agreement is invalid or

unenforceable. Whether that is so is a decision that must be

made, initially, by an arbitrator, with judicial review limited

to a “state or federal court located in Boston, Massachusetts.”

Rivard Aff., Exh. A at ¶ 10.

Neither party mentioned the mandatory forum selection

clause in the briefing regarding conditional certification.

Accordingly, the court scheduled a conference with the parties

to ask if they would oppose transfer of this case to the

District of Massachusetts, where jurisdiction also lies, and

5 where both arbitration and court review would be fully

consistent with the agreements’ provision, and where all

employees subject to an arbitration agreement (apparently nearly

all of them) are contractually bound to litigate. Plaintiff

agrees to transfer, but defendants have declined. Instead,

defendants argue that the mandatory forum selection clause has

no significance in these circumstances, and the case should

remain here.

Whether the validity and enforceability of arbitration

agreements must be resolved before sending notice of a pending

FLSA collective action to employees who are parties to such

agreements is unsettled. “District courts around the country

have generated conflicting answers to the question of whether

workers who signed arbitration agreements can receive notice of

an FLSA collective action.” Romero v. Clean Harbors Surface

Rentals USA, Inc.,

, 532 (D. Mass. 2019)

(collecting cases). Several district courts have found that

evaluating the enforceability of an arbitration agreement is a

merits-based decision, premature at the “conditional

certification stage,” and that notice (necessarily in the nature

of a “contingent notice”) should be sent to all potential

members of the collective, without regard to an apparent

arbitration agreement bar. See, e.g., Romero,

6 at 533-34; Bruno v. Wells Fargo Bank N.A., No. 2:19-CV-00587-

RJC,

, at *6 (W.D. Pa. Mar. 15, 2021) (“this

argument is premature, and we have no ability to determine

whether certain arbitration agreements are enforceable against

potential opt-in plaintiffs, and to hold otherwise would cause

further delays in the FLSA notice process.”); Gonzalez v.

Diamond Resorts Int'l Mktg., Inc., No. 218CV00979APGNJK,

, at *7 (D. Nev. May 1, 2020) (“[w]ithholding notice

because of the existence of an arbitration agreement presupposes

the enforceability of the agreement ... [and] the existence of

an arbitration agreement goes to an aspect of [defendant’s]

defense, [so] the enforceability of such an agreement is better

reserved for stage two of the certification process.”)

(quotation omitted); Cuevas v. ConAm Mgmt. Corp., No. 18CV1189-

GPC(LL),

, at *5 (S.D. Cal. Oct. 21, 2019)

(collecting cases) (“the Court follows the district courts in

this circuit and concludes that conditional certification is not

defeated because certain California employees signed arbitration

agreements.”); Barone v. Laz Parking Ltd., No. 3:17-CV-

01545(VLB),

at *3 (D. Conn. Oct. 20, 2019)

(courts “have consistently refused to exclude plaintiffs from

receiving notice simply because they have signed arbitration

agreements.”).

7 Other courts, including the Courts of Appeals for the Fifth

and Seventh Circuits, have reached different conclusions. In In

re JPMorgan Chase & Co.,

(5th Cir. 2019), the

Fifth Circuit held that “district courts may not send notice to

an employee with a valid arbitration agreement unless the record

shows that nothing in the agreement would prohibit that employee

from participating in the collective action,” reasoning that

“alerting those who cannot ultimately participate in the

collective ‘merely stirs up litigation,’ which is what Hoffmann-

La Roche [v. Sperling,

(1989)] flatly

proscribes.” Similarly, in Bigger v. Facebook, Inc.,

(7th Cir. 2020), the Seventh Circuit held that “a

court may not authorize notice to individuals whom the court has

been shown entered mutual arbitration agreements waiving their

right to join the action. And the court must give the defendant

an opportunity to make that showing.” Both the Fifth and the

Seventh Circuits require that, prior to authorizing notice, the

district court allow the defendant to submit evidence

demonstrating “by a preponderance of the evidence, the existence

of a valid arbitration agreement for each employee it seeks to

exclude from receiving notice.” Bigger,

;

JPMorgan,

.

8 While the law applicable to giving notice under such

circumstances is unsettled and developing, it is clear that, at

some early point in this litigation, the enforceability of the

invoked arbitration agreements will have to be resolved.

Employees who are parties to the agreement cannot participate as

part of a collective unless and until the agreements they signed

are found to be either invalid or unenforceable by an

arbitrator, or on judicial review in a state or federal court in

Boston. The mandatory forum selection clause also makes it

clear that this court is not the proper forum in which to

adjudicate the validity or application of those agreements (or,

more precisely, to review any arbitration decision or award).

The court may, in its discretion, transfer any civil action

to another district in which it might have been brought, “[f]or

the convenience of parties and witnesses, in the interest of

justice.”

(a). The Court of Appeals for the

First Circuit has recognized that “[s]ection 1404(a) is intended

to place discretion in the district court to adjudicate motions

for transfer according to an ‘individualized, case-by-case

consideration of convenience and fairness.’” Astro-Med, Inc. v.

Nihon Kohden Am., Inc.,

(1st Cir. 2009) (quoting

Stewart Org., Inc. v. Ricoh Corp.,

(1988)).

9 A civil action may be brought in “(1) a judicial district

in which any defendant resides, if all defendants are residents

of the State in which the district is located; [or] (2) a

judicial district in which a substantial part of the events or

omissions giving rise to the claim occurred.”

(b). This action could have been filed in the District of

Massachusetts; as discussed, TBD is headquartered and

incorporated in the State.

Our Court of Appeals has instructed that a contractual

forum selection clause is “a significant factor that figures

centrally in the District Court's calculus” under Section

1404(a). Astro-Med, Inc.,

. And, as the Supreme

Court has stated, when the parties' contract contains a valid

forum-selection clause, that clause “[should be] given

controlling weight in all but the most exceptional cases.” Atl.

Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas,

(2013) (internal quotations omitted). That is

because “the enforcement of valid forum-selection clauses,

bargained for by the parties, protects their legitimate

expectations and furthers vital interests of the justice

system.”

(quotations omitted).

The forum selection clause here, which reads “[a]ny action

brought to interpret and/or enforce this Agreement shall be

10 tried in state or federal courts located in Boston,

Massachusetts,” is mandatory, not permissive. Rivard Aff., Exh.

A at ¶ 10 (emphasis added). See Claudio-De Leon, 775 F.3d at 46

(“it is axiomatic that the word “shall” has a mandatory

connotation”). See also Provanzano v. Parker View Farm, Inc.,

(D. Mass. 2011) (“The use or words such

as ‘will’ or ‘shall’ demonstrate parties' exclusive commitment

to the named forum.”).

In this case, defendants have invoked the arbitration

agreements as an obstacle that must be overcome before formal

notice of the collective FLSA action can be given to those

employees subject to them. While it might be argued that

defendants’ invocation amounts to an effort to “enforce” the

arbitration agreements, and so must be done only in a “federal

or state court in Boston,” it is equally plausible that the

interposition is merely in the nature of pointing out that the

proposed collective is too broad, in that nearly all of the

putative members, unlike plaintiff, are likely ineligible.

Either way, however, whether “conditional notice” is given to

employees apparently parties to arbitration agreements, or not,

eventually, the validity and enforceability of those agreements

will have to be resolved by an arbitrator, and, if judicial

review is sought, by a federal or state court in Boston. So,

11 while this is not a straight-forward application of a mandatory

forum selection clause to litigation directly subject to that

clause, the forum selection clause is so closely related to the

proposed FLSA collective action that its existence militates in

favor of transferring the case.

As plaintiff now recognizes, this case is better litigated

in the District of Massachusetts, where it could have been filed

initially, because the looming obstacle to certification of the

collective and sending notice to the employees of TBD, is the

interposed arbitration agreements. That obstacle can only be

addressed in arbitration and reviewed by courts located in

Boston. The district court may conditionally certify the

collective and give notice to all employees, or may decline to

do so, or may delay any conditional certification pending any

challenges to the arbitration agreements’ effect with respect to

an FLSA collective action. In the end, however, whatever

procedural path is followed, the federal court in Boston is a

proper forum under the forum selection clause in which to

resolve the effect of the referenced arbitration agreements, and

this court is not.

CONCLUSION

The plaintiff’s choice of forum is ordinarily entitled to

deference, but plaintiff’s views have changed for legitimate

12 reasons. He now expressly agrees (document no. 77) that the

matter should be transferred to the District of Massachusetts

(specifically, the sessions sitting in Boston), where the

presiding district judge would be able to decide whether to give

“conditional notice” to employees covered by the arbitration

agreements, or determine preliminarily whether those agreements

preclude giving notice, or refer the issues of validity,

enforceability and application to arbitration, and thereafter

properly review any subsequent arbitration decision – all

consistently with applicable federal law and the mandatory forum

selection clause in the interposed arbitration agreements.

For the foregoing reasons, convenience, efficient use of

judicial resources, respect for mandatory forum selection

clauses, and the interests of justice, all favor transferring

this matter to the United States District Court for the District

of Massachusetts. The court directs the clerk to transfer this

action to the United States District Court for the District of

Massachusetts, specifically to the sessions sitting in Boston.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

March 30, 2021

cc: All counsel of record

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