In re: A&D Interests, 33 F.4th 254

Stacey Kibodeaux, a former exotic dancer at Heartbreakers, sued under the FLSA claiming misclassification as an independent contractor and withheld wages; three other dancers later joined.
The plaintiffs sought an FLSA collective of dancers who worked at Heartbreakers in the prior three years; the magistrate judge originally granted conditional certification.
After this court’s Swales decision eliminated conditional certification, the district court vacated its first order, allowed preliminary discovery, then granted certification and authorized notice to potential opt-in dancers, including those who signed arbitration agreements.
Petitioners (A&D and the Armstrongs) sought mandamus relief, arguing the court violated In re JPMorgan by sending notice to employees who had valid, enforceable arbitration agreements requiring individual arbitration.
The Fifth Circuit stayed the district court’s notice order pending resolution of the mandamus petition and ultimately granted mandamus.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court may send FLSA notice to potential opt-ins who signed arbitration agreements	The arbitration agreement’s ban on class actions doesn’t bar an FLSA collective; no motion to compel arbitration was pending, so notice is appropriate	The arbitration agreement requires arbitration and one-on-one arbitration, preventing those signatories from ultimately participating in a court collective; JPMorgan forbids notice unless record shows participation is possible	Court held district court clearly and indisputably erred: cannot send notice to employees bound by enforceable agreements that preclude participation; mandamus granted
Whether mandamus relief is appropriate	Denied: prior panel history and unresolved waiver/enforceability questions counsel against extraordinary relief	Mandamus proper because error is irremediable on appeal, the issue has broader importance, and district court’s order conflicts with JPMorgan	Court held mandamus appropriate — requirements met (no adequate alternative, clear error, and discretionary factors favor relief)

In re JPMorgan Chase & Co., 916 F.3d 494 (5th Cir. 2019) (district courts may not send notice to employees with valid arbitration agreements unless record shows they can participate)
Swales v. KLLM Transp. Servs., L.L.C., 985 F.3d 430 (5th Cir. 2021) (eliminated conditional-certification framework and clarified notice/opt-in oversight)
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (courts should not authorize notice that merely ‘‘stirs up litigation’’)
Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985) (courts must rigorously enforce arbitration agreements)
In re Itron, Inc., 883 F.3d 553 (5th Cir. 2018) (mandamus standard and irreparable-on-appeal discussion)
Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004) (standards for issuance of mandamus)