In re A&D Ints., Inc.

In re A&D Ints., Inc.

Opinion

Per Curiam:

A&D Interests, Incorporated (doing business as the "Heartbreakers Gentlemen's Club"), Mike Armstrong, and Peggy Armstrong, petition us for a writ of mandamus. They argue that the district court¹ should not have certified a Fair Labor Standards Act collective action comprised of "exotic" dancers who had worked at Heartbreakers in the last three years. We must decide whether the district court's decision to send notice to potential opt-in plaintiffs who signed arbitration agreements ran afoul of our holding in In re JPMorgan Chase & Co., 916 F.3d 494, 499 (5th Cir. 2019). And, if the district court did err, we must also decide whether Petitioners have cleared the remaining hurdles for mandamus relief. [*2]  For the following reasons, we grant Petitioner's motion.

Respondent Stacey Kibodeaux worked as an exotic dancer for Petitioners in Dickinson, Texas. She alleges that Petitioners unlawfully misclassified her (along with all other exotic dancers) as an independent contractor, resulting in Petitioners' unlawfully withholding wages she was due in violation of the Fair Labor Standards Act ("FLSA"). 29 U.S.C. § 203 et seq. Shortly after Kibodeaux filed her complaint, three other former dancers joined the lawsuit. The plaintiffs moved the district court to certify the case as an FLSA "collective action" comprised of dancers who worked at Heartbreakers in the preceding three years.

The district court granted Kibodeaux's motion for "conditional certification." Kibodeaux v. A&D Ints., Inc., No. 3:20-CV-00008, 2020 U.S. Dist. LEXIS 199188, 2020 WL 6292551 (S.D. Tex. Oct. 27, 2020) ("Kibodeaux I"), order vacated on reconsideration, 2021 U.S. Dist. LEXIS 250091, 2021 WL 6344723 (S.D. Tex. Mar. 4, 2021). Petitioners moved the district court for permission to seek interlocutory review of that order, which the district court denied. Petitioners then petitioned us for a writ of mandamus. We denied that petition.²

While the first mandamus action was pending, we decided Swales v. KLLM Transport Services, L.L.C., which did away with conditional certification in FLSA cases. 985 F.3d 430, 436 (5th Cir. 2021). In light of this change in the law, the district court vacated its conditional [*3]  certification order and ordered the parties to conduct preliminary discovery. Armed with new discovery, the district court granted the plaintiffs' motion for certification and issuance of notice. Kibodeaux v. A&D Ints., Inc., No. 3:20-CV-008, 2022 U.S. Dist. LEXIS 4186, 2022 WL 92856 (S.D. Tex. Jan. 10, 2022) ("Kibodeaux II"). Petitioners then filed a second mandamus petition asking us to vacate the district court's order certifying the collective action. To facilitate orderly appellate review, the district court stayed its order certifying the collective action pending resolution of this petition.

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