Cracker Barrel Denials Leave Collective Cert. Questions 

February 24, 2026

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. 

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“Between this and the Eli Lilly ruling, they’re crystal clear that they don’t want to weigh in on this question at this point in time,” said Rebecca Ojserkis of Cohen Milstein Sellers & Toll PLLC, who represents workers. “There’s a four-way circuit split, so it’s not the case that this hasn’t really bubbled up to the courts of appeals yet.” 

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But when considering the two issues taken together, forum-shopping by workers seems less likely, Cohen Milstein’s Ojserkis said. “It means that the standard for notice to issue … will vary based on where the suit is brought, and where the suit is brought is going to largely hinge, if it’s a nationwide collective, on where the employer has chosen to make its headquarters or to be incorporated,” she said.  

“It’s not the case that workers are going to be able to cherry-pick where in the country they want to file their nationwide collective action because of the personal jurisdiction ruling that the Ninth Circuit and many other circuits also reached,” she said. One potential way around this debate is that some state legislatures have considered or passed “registration by consent” legislation saying that if a company has registered to do business in their state, the company has consented to more specific personal jurisdiction. “That, I think, is a potentially different way that courts might have to address this issue, if state legislatures start passing more of those laws,” Ojserkis said. 

Read Cracker Barrel Denials Leave Collective Cert. Questions .