January 14, 2026
The U.S. Supreme Court’s decision not to review a standard the Seventh Circuit recently established for issuing notice in collective actions left intact a landscape in which there are now four different approaches.
The denial of a certiorari petition on Monday in Eli Lilly and Co. et al. v. Monica Richards means Seventh Circuit courts will be able to keep using a flexible approach toward certification in wage and hour litigation. That approach departs from the longstanding two-step process most circuit courts have used for decades, as well as from tests the Fifth and Sixth circuits introduced in 2021 and 2023, respectively.
There is still a chance for the justices to weigh in, as there is a pending certiorari petition in Andrew Harrington et al. v. Cracker Barrel Old Country Store Inc . Cracker Barrel is challenging the Ninth Circuit’s upholding of the two-step approach.
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Under this approach, a court first grants conditional certification for notice purposes based on a “modest factual showing” that the plaintiff is similarly situated to others. Later, after more discovery, the court considers whether to issue final certification, or weighs a defendant’s bid for decertification.
Rebecca Ojserkis of worker-side firm Cohen Milstein Sellers & Toll PLLC said enabling workers to opt in to a collective action earlier is important because the statute of limitations does not toll until each worker submits an opt-in form, and because earlier notice helps with discovery.
“Those workers themselves may have important information to share in determining whether or not they are similarly situated to the named plaintiffs,” she said. “So, if that analysis is being conducted without opt-in plaintiffs, whose contact information is typically known to defendants but not plaintiff’s counsel, you’re missing out on the exact discovery that’s needed to prove that ‘similarly situated’ question.”
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But Ojserkis said the recent Ninth Circuit ruling in Cracker Barrel “takes the wind out of any accusations of forum shopping.”
Besides upholding the two-step approach, the panel in that case also held that each opt-in plaintiff needs to establish personal jurisdiction, following the view some other circuits have also taken.
“Any collective action involving workers beyond a single state will inevitably be brought where the employer is at home,” Ojserkis said. “It’s not the case that plaintiffs are going to be able to file nationwide collective actions anywhere they want.”
Read Justices Leave in Place 4 Collective Certification Approaches.