Amicus Curiae Brief — Eli Lilly and Company, et al., Petitioners v. Monica Richards, Individually and on Behalf of All Others Similarly Situated

No. 25-476

In the Supreme Court of the United States

______________________________

ELI LILLY AND COMPANY; LILLY USA, LLC,

v.

MONICA RICHARDS,

Petitioners,

Respondent.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

______________________________

BRIEF OF AMICI CURIAE STATE OF OHIO,

19 OTHER STATES, AND THE

ARIZONA LEGISLATURE IN

SUPPORT OF PETITIONERS

______________________________

DAVE YOST

Ohio Attorney General

MATHURA J. SRIDHARAN*

Ohio Solicitor General

*Counsel of Record

JOHN F. KERKHOFF

Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614.466.8980

Mathura.Sridharan@OhioAGO.gov

Counsel for Amicus Curiae State of Ohio

(additional counsel and signatories

listed at the end of the brief)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

INTRODUCTION AND STATEMENT OF

AMICI INTEREST ................................................ 1

STATEMENT .............................................................. 3

SUMMARY OF ARGUMENT .................................... 5

ARGUMENT ............................................................... 6

I.

II.

This case presents an exceedingly

important question for defendants—

including amici States—subject to

collective actions under §216(b). ................... 7

A.

Section

216(b)’s

collective-action

process was designed to protect

defendants, not to recruit non-parties. ... 7

B.

States are subject to suit under §216. ... 10

C.

Conditional certification and courtordered notice through §216(b)

routinely impose steep costs on

States. ..................................................... 11

Court-issued notice to non-parties runs

counter to longstanding limits on judicial

power. ........................................................... 16

A.

History and tradition confine judicial

power to deciding disputes between

parties before the Court. ........................ 16

B.

Court-issued notice to non-parties

exceeds the judicial power. .................... 20

ii

C.

Without textual or historical support,

courts are confused on how to conduct

collective-action notice practice. ............ 22

CONCLUSION.......................................................... 23

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Ahad v. Bd. of Trs. of S. Ill. Univ.,

No. 3:15-cv-03308, 2017 WL 4330377

(C.D. Ill. Sept. 29, 2017) ...................................... 14

Alden v. Maine,

527 U.S. 706 (1999) ....................................... 11, 15

Ames v. Ohio Dep’t of Youth Servs.,

605 U.S. 303 (2025) ............................................... 2

Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680 (1946) ............................................... 8

Auer v. Robbins,

519 U.S. 452 (1997) ............................................. 12

Barrentine v. Arkansas-Best Freight

Sys., Inc.,

450 U.S. 728 (1981) ............................................... 8

Bautista v. Ohio Univ.,

No. 2020-00592, 2022 WL 4243206

(Ohio Ct. Claims July 13, 2022) .................... 12, 13

Castro v. United Sates,

540 U.S. 375 (2003) ............................................. 19

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ......................................... 20, 21

Christensen v. Harris Cnty.,

529 U.S. 576 (2000) ....................................... 11, 15

iv

Clark v. A&L Homecare & Training

Ctr., LLC,

68 F.4th 1003 (6th Cir. 2023)

.................................................5, 6, 9, 10, 15, 20, 22

Clark v. Ohio Dep’t of Rehab & Corr.,

No. 15AP-597, 2016 WL 764427

(10th Dist. Feb. 25, 2016) .................................... 13

Cutting v. Gilbert,

6 F. Cas. 1079 (CC S.D.N.Y. 1865) ..................... 18

Dep’t of Transp. v. Ass’n of Am. R.R.,

575 U.S. 43 (2015) ............................................... 18

Earl v. Norfolk State Univ.,

No. 2:13CV148, 2014 WL 6608769

(E.D. Va. Nov. 18, 2014) ...................................... 14

Elberger v. Univ. of Tennessee Health

Sci. Ctr. Coll. of Med.,

No. 12-2755, 2013 WL 12049105

(W.D. Tenn. Oct. 7, 2013) .................................... 14

Fischer v. Fed. Express Corp.,

42 F.4th 366 (3d Cir. 2022) ................................... 6

Fisher v. Pace,

336 U.S. 155 (1949) ............................................. 20

Garcia v. San Antonio Metro. Transit

Auth.,

469 U.S. 528 (1985) ............................................. 11

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013) ................................................. 9

v

Greenlaw v. United States,

554 U.S. 237 (2008) ............................................. 19

Grupo Mexicano de Desarrollo S.A. v.

Alliance Bond Fund, Inc.,

527 U.S. 308 (1999) ............................................. 17

GTE Sylvania, Inc. v. Consumers Union

of United States, Inc.,

445 U.S. 375 (1980) ............................................. 16

Hayburn’s Case,

2 U.S. 408 (1792) ................................................. 18

Hoffmann-La Roche Inc. v. Sperling,

493 U.S. 165 (1989)

....................... 1, 3, 4, 8, 9, 13, 14, 15, 16, 19, 20, 21

Hundertmark v. Fla. Dep’t of Transp.,

205 F.3d 1272 (11th Cir. 2000) ........................... 14

Keller v. Dailey,

124 Ohio App.3d 298 (10th Dist.

1997)..................................................................... 13

Knepper v. Rite Aid Corp.,

675 F.3d 249 (3d Cir. 2012) ............................... 8, 9

Kovacevich v. Kent State Univ.,

224 F.3d 806 (6th Cir. 2000) ............................... 14

Link v. Wabash R.R. Co.,

370 U.S. 626 (1962) ............................................. 20

Lundeen v. 10 W. Ferry St. Operations

LLC,

156 F.4th 332 (3d Cir. 2025) ................................. 8

vi

Lusardi v. Xerox Corp.,

118 F.R.D. 351 (D.N.J. 1987) .............................. 22

Marcus v. Ohio Civil Rights Comm’n,

Case No. 2025-0079 (Ohio Ct. Claims

2025)..................................................................... 12

McNeil v. Wisconsin,

501 U.S. 171 (1991) ............................................. 19

Missouri v. Jenkins,

515 U.S. 70 (1995) ............................................... 20

Murphy v. NCAA,

584 U.S. 453 (2018) ............................................. 17

Murphy v. Ohio State Univ.,

549 F. App’x 315 (6th Cir. 2013) ......................... 14

Muskrat v. United States,

219 U.S. 346 (1911) ............................................. 18

Myers v. Iowa Bd. of Regents,

458 F. Supp. 3d 1075 (N.D. Iowa

2020)..................................................................... 14

Nat’l League of Cities v. Usery,

426 U.S. 833 (1976) ....................................... 10, 11

O’Sullivan v. Minnesota,

191 F.3d 965 (8th Cir. 1999) ............................... 14

Oakley v. The Ohio State Univ. Wexner

Med. Ctr.,

No. 18AP-843, 2019 WL 4165073

(10th Dist. Sept. 3, 2019) .................................... 13

vii

Osborne v. Bank of the United States,

22 U.S. 738 (1824) ............................................... 18

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) ............................................. 17

Rollins v. Ala. Cmty. College Sys.,

No. 2:09cv636, 2010 WL 4269133

(M.D. Ala. Oct. 25, 2010) ..................................... 15

Siler-Khodr v. Univ. of Texas Health

Sci. Ctr. San Antonio,

261 F.3d 542 (5th Cir. 2001) ............................... 14

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ....................................... 16, 17

Sprint Comm’ns Co., L.P. v. APCC

Servs., Inc.,

554 U.S. 269 (2008) ............................................. 17

Stern v. Marshall,

564 U.S. 462 (2011) ............................................. 17

Swales v. KLLM Transp. Servs., LLC,

985 F.3d 430 (5th Cir. 2021) ............................... 22

Timmer v. Michigan Dep’t of Com.,

104 F.3d 833 (6th Cir. 1997) ............................... 14

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ................................. 16, 18, 19

Trump v. CASA, Inc.,

606 U.S. 831 (2025) ....................................... 17, 18

viii

United States v. Hudson,

11 U.S. 32 (1812) ................................................. 20

United States v. Sineneng-Smith,

590 U.S. 371 (2020) ............................................. 19

Varner v. Illinois State Univ.,

226 F.3d 927 (7th Cir. 2000) ............................... 14

Young v. United States ex rel. Vuitton et

Fils S.A.,

481 U.S. 787 (1987) ............................................. 17

Statutes, Rules, and Constitutional Provisions

U.S. Const., art. III, §2 ............................................. 16

29 U.S.C. §202 ............................................................. 8

29 U.S.C. §203 ..................................................... 10, 12

29 U.S.C. §216 ............................................... 1, 3, 5, 12

Sup. Ct. Rule 37.2 ....................................................... 1

Other Authorities

Frank H. Easterbrook, Presidential

Review, 40 Case W. Res. L. Rev 905

(1990) ................................................................... 17

Notice of Right to Opt-In and Consent

Form, Marcus v. Ohio Civil Rights

Comm’n, Case No. 2025-0079 (Ohio

Ct. Claims Oct. 17, 2025) .................................... 13

ix

Pls.’ Mot. to Facilitate Court-Authorized

Notice to Other Similarly Situated

Potential Pls., Marcus v. Ohio Civil

Rights Comm’n, Case No. 2025-0079

(Ohio Ct. Claims June 12, 2025) ......................... 13

Samuel Freeman Miller, Lectures on the

Constitution of the United States

(1891) ................................................................... 18

Second Am. Collective Action Compl.,

Marcus v. Ohio Civil Rights Comm’n,

Case No. 2025-0079 (Ohio Ct. Claims

Mar. 3, 2025) .................................................. 12, 13

William Baude & Samuel L Bray, The

Supreme Court 2022 Term,

Comment: Proper Parties, Proper

Relief, 137 Harv. L. Rev. 153 (2023) ................... 18

William Baude, The Judgment Power,

96 Geo. L. J. 1807 (2008) ..................................... 17

INTRODUCTION AND

STATEMENT OF AMICI INTEREST 1

Litigation often takes a straightforward path. A

plaintiff sues. A defendant responds. And the case

moves toward trial. Sometimes cases involve multiple

parties. Class actions can encompass thousands of individuals. And multi-district litigation may consolidate hundreds of actions before one court. But, large

or small, all litigation has one critical thing in common: courts address disputes among parties.

This case is different. Under the statute at issue

here, non-parties invited by the court into the courtroom often determine the case’s disposition. Thanks

to judicial ingenuity, plaintiffs suing under 29 U.S.C.

§216(b)—which applies to suits under the Fair Labor

Standards Act, the Equal Pay Act, and the Age Discrimination in Employment Act—may represent other

individuals in what have been termed “collective actions.” Like class actions, collective actions allow

plaintiff employees to bring cases on behalf of “similarly situated” employees. 29 U.S.C. §216(b). But, unlike in class actions, a “similarly situated” non-party

employee “become[s] ... a party” to the suit only when

“he gives his consent in writing” to the court—in other

words, when he opts in to the lawsuit. Id.

Relying on that provision, this Court nearly four

decades ago devised a special plaintiff-friendly rule

under which an employee can represent co-workers

even when they are not parties to the case. HoffmannLa Roche Inc. v. Sperling, 493 U.S. 165 (1989).

Through this so-called “conditional certification”

1 The amici States provided all parties with the no-

tice required by Rule 37.2.

2

process, the plaintiff co-opts the court in soliciting

other non-parties to bring their suits against the defendant—by sanctioning courts to send “notice” to

non-party employees that allows them to “opt in” to

the lawsuit. And even before non-party employees

opt-in (and before they officially become parties),

cases move forward with discovery and motion practice. Once a court sends notice, in other words, the

case proceeds as if a class already exists.

Just one problem: no source of authority gives

courts power to solicit non-party plaintiffs in this way.

Not the statute. Not the Constitution. Not the federal

civil rules. And certainly not any history or tradition.

Conditionally “certifying” a “class” of non-parties

through court-ordered notice is a creature of judicial

innovation. And this judicial creativity comes with

consequences. It “distort[s] the underlying statutory

text, impose[s] unnecessary burdens on litigants, and

cause[s] confusion for courts.” Ames v. Ohio Dep’t of

Youth Servs., 605 U.S. 303, 313 (2025) (Thomas, J.,

concurring). By “certifying” a “class” of non-parties,

courts impose massive costs on defendants, forcing

many to settle. Conditional certification is often the

ballgame, resulting in hundreds of millions of dollars

in settlements every year.

Many of the amici States know this all too well.

Ohio, like other States, defends lawsuits under

§216(b) involving the court-created “notice” practice.

And each time, the State defendant faces the possibility that the judge will send court-approved documents

to other state employees. This practice stirs up further litigation, raids State treasuries, and, thus, interferes with execution of State sovereign functions.

3

As if those burdens are not enough, the judge-made

practice has created significant confusion in lower

courts that remain flummoxed over what standard

governs the decision to “conditionally” certify a class

by sending court-ordered notice. Since Hoffmann-La

Roche, at least four different standards have evolved,

leaving defendants with hardly any guidance on

when, why, and how courts will invite non-parties to

the litigation.

This Court should grant the petition to end Hoffmann-La Roche’s mischief, or at least clarify the

standard that applies to this judge-made practice.

States, like all defendants staring down multi-milliondollar demands, deserve clear guidance. Without any

clear rule, States will continue to bear the cost of a

practice untethered from statutory text, constitutional principles, and history and tradition.

STATEMENT

Plaintiffs suing under 29 U.S.C. §216(b)—which

applies to the Fair Labor Standards Act (“FLSA”),

Equal Pay Act (“EPA”), and Age Discrimination in

Employment Act (“ADEA”)—may represent “similarly

situated” co-workers if those employees “give[] … consent in writing to become such a party and such consent is filed in the court.” 29 U.S.C. §216(b). The idea

is simple: when one employee sues, others can tag

along, so long as they share sufficient similarity. That

avoids duplicative and unnecessary litigation, thus

serving judicial economy.

Section 216’s procedure has come to be known as a

“collective action,” which sounds like Civil Rule 23’s

“class action.” But the two differ in meaningful ways.

Most notably: collective actions contain none of the

Rule 23 safeguards—numerosity, commonality,

4

typicality, and adequacy. And under §216, employees

must affirmatively ask to join the case—a stark difference from Rule 23’s “opt-out” rule.

The upshot is that employees seeking to join a coworker in a §216 action are not automatically “plaintiffs.” A court must rule that they are similarly situated to the named plaintiff. But when—and how—

that should occur has left lower courts stumped.

The confusion stems from a court-created doctrine

called “conditional certification” or “notice.” In Hoffmann-La Roche Inc. v. Sperling, this Court blessed

that process by which courts approve and facilitate notice to non-party employees before final certification.

493 U.S. 165 (1989). At this “conditional certification”

phase, the court can, with a minimal showing, determine that absent employees are likely similarly situated and send notice soliciting them to join the suit.

However, at the conditional notice stage, these employees do not become parties. That comes later—at

the final certification stage.

Lower courts, however, do not agree (or know)

when they may send such notices. It is no wonder

why. The statute’s text says nothing about conditional notice to employees. And there is no historical

or traditional practice of courts issuing such solicitations. So, to implement Hoffmann-La Roche’s plan,

lower courts have conjured up best practices from thin

air.

Without textual (or other) tethering, conditionalnotice practice has splintered the courts in application. Lower courts now follow four separate tests in

determining when to send notice—the most recent

test created here. In this case, Monica Richards, an

Eli Lilly employee, brought an ADEA claim alleging

5

that Eli Lilly denied her a promotion based on age.

Richards took advantage of Hoffmann-La Roche’s notice regime (which applies to ADEA actions), sought

conditional certification, triggering court-approved

notice to other employees. After authorizing notice to

non-party employees, the district court certified an interlocutory appeal.

The Seventh Circuit affirmed. And, in the process,

the Circuit held that notice is proper whenever a material dispute exists as to whether employees are similarly situated. Thus, the court permitted notice even

before any finding that the employees were similarly

situated. After the Seventh Circuit’s holding, the

lower courts are now divided four separate ways, and

this Court’s guidance is needed.

SUMMARY OF ARGUMENT

More than thirty-five years ago, this Court introduced a new role for courts to oversee so-called “collective actions” under 29 U.S.C. §216(b). In this new role,

courts may solicit non-parties “similarly situated” to

the plaintiffs to join cases arising under the FLSA,

EPA, and ADEA.

For defendants in FLSA, EPA, and ADEA suits,

“the issuance of notice can easily expand the plaintiffs’

ranks a hundredfold,” forcing settlement regardless of

the merits. Clark v. A&L Homecare & Training Ctr.,

LLC, 68 F.4th 1003, 1007 (6th Cir. 2023). Thus “the

decision to send notice of an FLSA[,]” EPA, or ADEA

“suit to other employees is often a dispositive one.” Id.

Litigating against adverse parties is one thing. But

defending against scores of non-parties invited by the

court is altogether different, creating millions of dollars in potential liability with little protection. Given

the odds, defendants often give in. Faced with dozens,

6

hundreds, or even thousands of claims from non-parties, defendants are forced to settle. Thus, the practice forces defendants to fight with one hand behind

their backs.

Amici States know. Under various federal statutes

that incorporate §216(b), States face lawsuits involving Hoffmann-La Roche’s notice regime. And when

courts conditionally “certify” these “classes” of employees, States are forced to settle or face crushing liability. The coercive court-ordered-notice practice thus

inflicts violence on the States’ coffers, which, in turn,

erodes their sovereignty.

And the notice practice is wrong. Section 216(b)’s

text says nothing at all about notice or conditional certification. Clark, 68 F.4th at 1009; Fischer v. Fed. Express Corp., 42 F.4th 366, 376 (3d Cir. 2022). There

exists no other authority—constitutional, historical,

traditional, or otherwise—that allows judges to reach

beyond the courthouse steps to solicit non-parties into

court. In sum, court-sanctioned plaintiff solicitation

sits outside the judicial power. These weighty issues

show why the questions presented in this case are

worthy of this Court’s attention.

If that is not enough, the lack of textual and historical support has created, unsurprisingly, confusion

among the lower courts. Even if the Court does not

want to erase Hoffmann-La Roche’s error altogether,

it should at least grant the petition to resolve a fourway split among courts on the standard for issuing

such notices.

ARGUMENT

In addition to the reasons advanced in the petition

for certiorari, with which the amici States concur in

7

full, the amici States urge this Court to accept this

case for two reasons. First, many amici States regularly face the coercive pressure of the court-ordered

notice practice in collective-action suits under §216(b).

Court-ordered notice in such cases often determines

whether States must pay large settlements that inflict

tremendous fiscal and sovereign harm on the States.

Second, because the judge-made practice is unmoored

from the statute’s text, the Constitution, or any historical judicial practice, soliciting non-parties in an action exceeds the bounds of the judicial power. And

even if this Court is unwilling to erase the practice, it

should accept this case to guide lower courts that are

split on when courts can engage in the practice.

I.

This case presents an exceedingly

important question for defendants—

including

amici

States—subject

to

collective actions under §216(b).

Collective actions under §216(b) result in defendants paying hundreds of millions of dollars in settlements every year. Because §216(b) applies to States

and local governments, the provision has imposed

such severe costs on States, too. That turns the statute’s purpose—to protect defendants—on its head.

The statute is thus in need of reorientation.

A.

Section 216(b)’s collective-action

process was designed to protect

defendants, not to recruit nonparties.

Congress recognized that defendant employers

needed protection when it enacted §216(b). To see

why, consider the evolution of suits under the FLSA.

8

“The principal congressional purpose in enacting

the Fair Labor Standards Act of 1938 was to protect

all covered workers from substandard wages and oppressive working hours.” Barrentine v. Arkansas-Best

Freight Sys., Inc., 450 U.S. 728, 739 (1981) (citing 29

U.S.C. §202(a)). Nearly a decade later, Congress

amended §216(b), adding an opt-in provision. But in

doing so, Congress “did not have worker-protection in

mind.” Lundeen v. 10 W. Ferry St. Operations LLC,

156 F.4th 332, 340 (3d Cir. 2025).

Instead, the opt-in process arose “against th[e]

backdrop of ‘excessive and needless litigation’ and the

‘wholly unexpected liabilities’ it imposed” under the

FLSA. Id. at 340 (quoting Knepper v. Rite Aid Corp.,

675 F.3d 249, 255 (3d Cir. 2012)). Unanticipated litigation came in the wake of this Court’s holding that

“portal-to-portal” time, “such as walking to work on

the employer’s premises, qualified as compensable

work under the Act.” Lundeen, 156 F.4th at 340 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,

691 (1946)). Anderson “unleashed thousands of lawsuits seeking back pay—nearly all of which were so

called ‘representative actions’ initiated by third-party

union officials who lacked any stake in the actions.”

Lundeen, 156 F.4th at 340. By requiring employees to

opt-in, the FLSA “limit[ed] private FLSA plaintiffs to

employees who asserted claims in their own right and

free[d] employers of the burden of representative actions.” Hoffmann-La Roche, 493 U.S. at 173.

“Congress created the opt-in scheme,” then, “not as

a worker-protection measure but ‘primarily as a check

against the power of unions’ and a bar to ‘one-way intervention’ whereby plaintiffs could wait for a favorable outcome before choosing to opt in and be bound by

the judgment.” Lundeen, 156 F.4th at 340–41 (quoting

9

Knepper, 675 F.3d at 260). Thus, Congress eliminated

any “representative action by plaintiffs not themselves possessing claims,” and “the requirement that

an employee file written consent was added.” Hoffmann-La Roche, 493 U.S. at 173.

Said another way, by 1947, Congress recognized

that defendant employers needed protection. And the

opt-in procedure did just that by ensuring that cases

would involve only employees with real skin in the

game. Or, put differently, only employees with similar claims could become parties against a defendant

employer.

Given this defendant-protective rule, it makes

sense that Congress did not include anything in the

statute about “conditional certification” or “notice” to

non-parties. Clark, 68 F.4th at 1009. That came from

Hoffmann-La Roche where this Court held that district courts could “facilitat[e] notice to potential plaintiffs,” because the “benefits” of a collective action “depend on employees receiving accurate and timely notice concerning the pendency of the collective action,

so that they can make informed decisions about

whether to participate.” 493 U.S. at 170. HoffmannLa Roche’s ruling has sowed confusion, but one thing

remains clear: even at the notice stage, absent employees remain non-parties to the case. They must affirmatively opt-in through written consent approved

by the court to become a party. Thus “whether called

‘conditional certification’ or otherwise—the notice determination has zero effect on the character of the underlying suit.” Clark, 68 F.4th at 1009. The lower

court here agreed with that principle. Pet.App.8a. So

even when a court sends notice, those employees remain non-parties. Genesis Healthcare Corp. v.

Symczyk, 569 U.S. 66, 75 (2013).

10

Yet, as the court below acknowledged, “overly permissive notice standards will allow plaintiffs to artificially expand the size of a collecti[on].” Pet.App.8a–

9a. So “the decision to send notice … to other employees is often a dispositive one, in the sense of forcing a

defendant to settle.” Clark, 68 F.4th at 1007. Sending

notice at conditional certification is almost always the

real fight in a §216(b) case with certification pressuring defendants into settlement. Thus, by importing a

conditional certification test into §216(b), courts have

undermined the very protections that Congress

sought to create.

B.

States are subject to suit under §216.

Section 216(b)’s 1974 amendments extended the

statute to apply to States. Congress enacted the

amendments to “extend[] the minimum wage and

maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions.” Nat’l League of Cities v. Usery, 426

U.S. 833, 836 (1976). The amendments included

§216(b), which allows FLSA actions “against any employer (including a public agency).” “Public agency,”

under the new statutory provisions included “the government of a State or political subdivision thereof [or]

any agency of … a State, or political subdivision of a

State.” 29 U.S.C. §203(x).

Expanding liability to States caused an immediate

stir—and spurred litigation. In Nat’l League of Cities

v. Usery, the Supreme Court held that the Tenth

Amendment barred Congress from applying the FLSA

to States. In so ruling, the Court recognized the vast

costs that the FLSA imposed on States. “Judged

solely in terms of increased costs in dollars,” applying

the FLSA to States would result in “a significant

11

impact on the function of governmental bodies involved.” 426 U.S. at 846. Plus, the Court explained,

FLSA provisions would “displace[] state policies regarding the manner in which they will structure delivery of those governmental services which their citizens require.” Id. at 847. Usery left no doubt: the

FLSA had major effects on States.

This Court later reversed course, see Garcia v. San

Antonio Metro. Transit Auth., 469 U.S. 528, 531

(1985), but the Court did not question the FLSA’s

costs on States. Instead, Garcia rejected Usery’s test

as unworkable. Id. at 546. “States and their political

subdivisions” only began to “feel the full force of” the

FLSA after Garcia. Christensen v. Harris Cnty., 529

U.S. 576, 579 (2000).

“In the months following Garcia, Congress acted to

mitigate the effects of applying the FLSA to States

and their political subdivisions, passing the Fair Labor Standards Amendments of 1985.” Id. Those

amendments softened the blow on States by giving

them some options—such as offering “comp time”—to

avoid massive FLSA liability. If §216(b) applied to

States, Congress knew that States needed protection.

Although this Court ultimately held that the FLSA

did not abrogate state sovereign immunity, Alden v.

Maine, 527 U.S. 706 (1999), §216(b)’s mischief did not

end there.

C.

Conditional certification and courtordered notice through §216(b)

routinely impose steep costs on

States.

Between the FLSA, EPA, and ADEA, States face

lawsuits involving the notice practice. Each statute

incorporates §216(b) under which courts order

12

conditional certification. These cases can put States

on the hook for millions of dollars every year based on

claims from non-parties.

Section 216(b) has applied to States for decades.

The 1974 amendments to the FLSA (which later applied to the Equal Pay Act and Age Discrimination in

Employment Act) covered “virtually all public-sector

employees.” Auer v. Robbins, 519 U.S. 452, 457

(1997); see also 29 U.S.C. §§216(b), 203(x) (defining

public agency); Bautista v. Ohio Univ., No. 202000592, 2022 WL 4243206, at *5 (Ohio Ct. Claims July

13, 2022) (“Public employees fall within the scope of

the FLSA.”). Although States retain sovereign immunity under the FLSA and ADEA, some States have

waived that immunity. Moreover, courts have held

that the EPA abrogated state sovereign immunity,

thus allowing §216(b) suits. So state workers—as well

as local county and municipal employees—can bring

suit under §216.

And they do. State and local governments regularly face collective action complaints. Those cases often include motions for conditional certification. The

costs are not small. When courts issue notice, States

face a huge increase in potential liability and face

pressure to settle—at taxpayer expense.

Consider a current example. Ohio today remains

in litigation involving §216(b) notice. See Marcus v.

Ohio Civil Rights Comm’n, Case No. 2025-0079 (Ohio

Ct. Claims 2025). There, a state employee filed a “collective action complaint” purportedly “on his own behalf and on behalf of all similarly situated individuals.” See, Second Am. Collective Action Compl. (Mar.

3, 2025), https://perma.cc/J8S6-U4GY. The plaintiff

asked the court for “[p]rompt notice, pursuant to 29

13

U.S.C. §216(b), to all Collective Class members that

this litigation is pending and that they have the right

to ‘opt in’ to this litigation.” Id. at 11. Plaintiffs, invoking Hoffmann La-Roche, then moved “that the

Court facilitate notice to similarly situated potential

plaintiffs about this action and their right to opt-in.”

See, Pls.’ Mot. to Facilitate Court-Authorized Notice to

Other Similarly Situated Potential Pls. (June 12,

2025), https://perma.cc/WS6M-U6RF. Although the

State opposed sending notice, the court granted plaintiffs’ motion. The Notice explains that plaintiffs “have

been authorized by the Court of Claims for the State

of Ohio to notify” individuals who may opt-in to the

lawsuit. See Notice of Right to Opt-In and Consent

Form (Oct. 17, 2025), https://perma.cc/M4VD-MJ6K.

And the Notice “informs [the recipient] of [his] right

under the Fair Labor Standards Act to participate in

the case.” Id. The Notice further informs recipients

that the Ohio Civil Rights Commission “could be ordered to pay upon a finding that it denied what you

earned without acting in good faith and reasonably believing that it did not owe you overtime.” Id. By inviting plaintiffs to sue the State in droves, this Notice

exposes Ohio to significant liability.

Such instances are far from rare. Ohio and its

agencies frequently face litigation involving §216(b)

collective actions. See, e.g., Clark v. Ohio Dep’t of Rehab & Corr., No. 15AP-597, 2016 WL 764427 (10th

Dist. Feb. 25, 2016) (FLSA collective action against

Ohio Department of Rehabilitation and Corrections);

Bautista, 2022 WL 4243206; Keller v. Dailey, 124 Ohio

App.3d 298 (10th Dist. 1997). And those cases can involve court-issued “notice” under Hoffmann-La Roche.

See Oakley v. The Ohio State Univ. Wexner Med. Ctr.,

No. 18AP-843, 2019 WL 4165073 (10th Dist. Sept. 3,

14

2019) (explaining the court’s authority to issue Hoffmann-La Roche notices but holding that notice decisions are non-final, non-appealable orders). Other

States, too, are subject to §216(b)’s notice regime in

FLSA cases. See, e.g., Myers v. Iowa Bd. of Regents,

458 F. Supp. 3d 1075, 1084–90 (N.D. Iowa 2020).

But that is not the only front on which States must

fight §216(b) collective-action lawsuits. Recall that

both the Equal Pay Act and Age Discrimination in

Employment Act incorporate §216. And private parties often sue States in federal court under the EPA.

After all, courts have long held that the EPA abrogates state sovereign immunity. Varner v. Illinois

State Univ., 226 F.3d 927, 936 (7th Cir. 2000); Kovacevich v. Kent State Univ., 224 F.3d 806, 819–21

(6th Cir. 2000); Hundertmark v. Fla. Dep’t of Transp.,

205 F.3d 1272, 1275 (11th Cir. 2000); O'Sullivan v.

Minnesota, 191 F.3d 965, 968 (8th Cir. 1999); Timmer

v. Michigan Dep’t of Com., 104 F.3d 833, 842 (6th Cir.

1997); Siler-Khodr v. Univ. of Texas Health Sci. Ctr.

San Antonio, 261 F.3d 542, 550 (5th Cir. 2001). So

arms of the State of Ohio must continue to defend EPA

lawsuits in federal court. See Murphy v. Ohio State

Univ., 549 F. App’x 315 (6th Cir. 2013).

Those cases, too, can include Hoffmann-La Roche

notices. Elberger v. Univ. of Tennessee Health Sci. Ctr.

Coll. of Med., No. 12-2755, 2013 WL 12049105, at *7

(W.D. Tenn. Oct. 7, 2013) (approving Hoffmann-La

Roche notice to professors in EPA collective action

against Tennessee state university based on the “lenient standard for conditional certification.”); Earl v.

Norfolk State Univ., No. 2:13CV148, 2014 WL

6608769, at *8 (E.D. Va. Nov. 18, 2014) (approving notice in an EPA collective action against Virginia university); Ahad v. Bd. of Trs. of S. Ill. Univ., No. 3:15-

15

cv-03308, 2017 WL 4330377 (C.D. Ill. Sept. 29, 2017);

Rollins v. Ala. Cmty. College Sys., No. 2:09cv636, 2010

WL 4269133 (M.D. Ala. Oct. 25, 2010) (denying motion

for notice and conditional certification in EPA case but

recognizing applicability of Hoffmann-La Roche).

Other local governments—such as cities and counties—also remain subject to notice and conditional

certification. See Christensen, 529 U.S. at 579.

Make no mistake: notice under Hoffmann-La

Roche has a direct and sizable effect on State money

and activities. Whenever a public employee sues under the FLSA, EPA, or ADEA, the State could face a

§216(b) conditional certification motion. That motion

alone places the State at risk of spending millions of

extra dollars. States, like any defendant, can be

“forc[ed] … to settle—because the issuance of notice

can easily expand the plaintiffs’ ranks a hundredfold.”

Clark, 68 F.4th at 1007. That is because “the decision

to send notice … to other employees is often a dispositive one.” Id.

These are not hypothetical or abstract concerns.

Year after year, public employees sue States and move

for conditional certification. And when courts solicit

plaintiffs, States can end up facing multi-million-dollar liability. Courts have long recognized that “private

suits for money damages” against States can “place

unwarranted strain on the States’ ability to govern in

accordance with the will of their citizens.” Alden, 527

U.S. at 750–51. Sovereign states, then, must be able

to control “access to the public fisc.” Id. at 751. Courtordered notices stand in the way of that exercise of

sovereignty.

16

II.

Court-issued notice to non-parties runs

counter to longstanding limits on judicial

power.

The costs imposed on States, local governments,

and businesses are enough alone to warrant granting

the petition here. But Hoffmann-La Roche has a more

fundamental flaw: no authority—statutes, federal

rules, history, nor tradition—permits judges to solicit

non-parties to join a lawsuit. This Court should put

an end to court-ordered notice altogether. And even if

this Court does not go all the way to erase the textually unmoored practice, it should grant the petition at

least to clean up the lower-court mess and resolve the

deepening split on how court-ordered notice should be

conducted. All parties—plaintiffs, States, and defendant businesses—would benefit from a clear rule. But

because Hoffmann-La Roche has no anchor in history

or tradition, any attempt to devise a workable standard would likely fail.

A.

History and tradition confine

judicial power to deciding disputes

between parties before the Court.

In addition to constitutional limits on judicial

power, see, e.g., Spokeo, Inc. v. Robins, 578 U.S. 330,

337 (2016) (citing U.S. Const., art. III, §2), history and

tradition inform the limits of judicial power as well.

They inform the boundaries of jurisdiction. TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021); GTE

Sylvania, Inc. v. Consumers Union of United States,

Inc., 445 U.S. 375, 382 (1980) (“The purpose of the

case-or-controversy requirement is to limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as

capable of resolution through the judicial process.”

17

(quotation omitted)). And history and tradition inform the scope of the courts’ remedial authority. Just

this past term, this Court reaffirmed that any remedy

that “lacks a historical pedigree” falls outside of equitable authority. Trump v. CASA, Inc., 606 U.S. 831,

847 (2025); Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999). Finally, traditional practice guides courts in the types of

cases judges may decide. Stern v. Marshall, 564 U.S.

462, 484 (2011). Sprint Comm’ns Co., L.P. v. APCC

Servs., Inc., 554 U.S. 269, 274 (2008) (“history and tradition offer a meaningful guide to the types of cases

that Article III empowers federal courts to consider”).

And when a judicial practice is “conspicuously nonexistent for most of our Nation’s history,” that absence

“settles the question of judicial authority.” CASA, 606

U.S. at 845. Critically, Courts must not “exceed their

authority as it has been traditionally understood.”

Spokeo, 578 U.S. at 338.

Traditionally, courts have the power “to render dispositive judgments.” Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 219 (1995) (quoting Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev

905, 926 (1990)). That view is widely shared by academics and both current and former members of this

Court. Murphy v. NCAA, 584 U.S. 453, 488 (2018)

(Thomas, J. concurring); Young v. United States ex rel.

Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia,

J., concurring) (“The judicial power is the power to decide, in accordance with law, who should prevail in a

case or controversy.”); see also William Baude, The

Judgment Power, 96 Geo. L. J. 1807, 1815 (2008) (the

judicial power is “the power to make authoritative and

final judgments in individual cases.”).

18

The power to decide cases comes with corollaries.

For one thing, judges have no “roving” anything-goes

power to “exercise general legal oversight … of private

entities.” TransUnion, 594 U.S. at 423–24. Judges do

not “opine on disputes when they do not have the

power to issue binding relief,” so they cannot “decide

cases without litigants, or without remedies to

award.” William Baude & Samuel L. Bray, The Supreme Court 2022 Term, Comment: Proper Parties,

Proper Relief, 137 Harv. L. Rev. 153, 155 (2023).

There is no “undifferentiated ‘governmental power’”—

there is only executive, legislative, and judicial power.

Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. 43, 67

(2015) (Thomas, J., concurring in the judgment). And

courts cannot “exercise … any power not in its nature

judicial.” Hayburn’s Case, 2 U.S. 408, 410 n.2 (1792).

Another corollary, relevant here, is that courts can

issue judgments only against parties. Chief Justice

Marshall made that clear early in the Republic: that

the “judicial power … is capable of acting only when

the subject is submitted to it by a party who asserts

his right in the form prescribed by law.” Osborne v.

Bank of the United States, 22 U.S. 738, 819 (1824). So

judicial power has long been recognized as “the power

of a court to decide and pronounce a judgment and

carry it into effect between persons and parties who

bring a case before it for decision.” Muskrat v. United

States, 219 U.S. 346, 356 (1911) (quoting Samuel Freeman Miller, Lectures on the Constitution of the United

States 314 (1891)). For that reason, courts may not

issue “relief that extend[s] beyond the parties.”

CASA, 606 U.S. at 843. After all, “to allow all persons

subject to [a] statute to be treated as parties to a lawsuit ‘would confound the established order of judicial

proceedings.’” Id. at 844 (quoting Cutting v. Gilbert, 6

19

F. Cas. 1079, 1080 (CC S.D.N.Y. 1865)). Courts decide

only the “rights of individuals,” not “hypothetical or

abstract disputes.” TransUnion, 594 U.S. at 423.

This party-centric view limits the judicial role and

comports with our adversarial system in which courts

“rely on the parties to frame the issues for decision

and assign to courts the role of neutral arbiter of matters the parties present.” United States v. SinenengSmith, 590 U.S. 371, 375 (2020) (quoting Greenlaw v.

United States, 554 U.S. 237, 243 (2008)). As “passive

instruments of government,” courts take a case as it

comes—how a party presents it. Id. at 376. In this

system, judges do not investigate claims for themselves or take an active role in managing claims. That

is for the parties. Were it otherwise, judges would no

longer simply decide disputes—they would create

them. But “[w]hat makes a system adversarial rather

than inquisitorial is … the presence of a judge who

does not (as an inquisitor does) conduct the factual

and legal investigation himself, but instead decides on

the basis of acts and arguments pro and con adduced

by the parties.” McNeil v. Wisconsin, 501 U.S. 171,

181 n.2 (1991). So parties alone “are responsible for

advancing the facts and arguments entitling them to

relief.” Castro v. United Sates, 540 U.S. 375, 386

(2003) (Scalia, J., concurring in part and concurring in

judgment). Parties—not judges—are in control.

Our adversarial system puts parties in the driver’s

seat. And when evaluating the scope of the judicial

power, history and tradition serve as powerful guideposts. As explained next, however, Hoffmann-La

Roche created a notice power unmoored from the Constitution, history, tradition, or statutory text and thus

expanded the judicial authority beyond its constitutional bounds.

20

B.

Court-issued notice to non-parties

exceeds the judicial power.

Court-issued notice to non-parties goes well beyond any cognizable judicial power. As the Sixth Circuit explained, “[n]either the statute, nor HoffmannLa Roche, nor (so far as we can tell) any traditional

practice at common law or equity says much about

what the requisite showing should be” to send notice.

Clark, 68 F.4th at 1007. Justice Scalia recognized as

much in his Hoffmann-La Roche dissent, noting that

there was “no source of authority for such an extraordinary exercise of the federal judicial power.” 493 U.S.

at 174 (Scalia, J., dissenting). And by sending courtordered documents to potential parties to join a case,

courts “determin[e] which claims come before them”

and they act as “inquisitors of justice,” not “arbiters of

adversarial claims.” Id. at 181.

True, judicial power has long included “inherent”

powers ancillary to the authority of issuing judgments. Chambers v. NASCO, Inc., 501 U.S. 32, 43–44

(1991). And true, too, that the metes and bounds of

this power are not always so clear. Even so, these “implied powers … must necessarily result to our Courts

of justice from the nature of their institution … because they are necessary to the exercise of all others.”

United States v. Hudson, 11 U.S. 32, 34 (1812). And

in all events, inherent powers—like all powers—must

be “consistent with our history and traditions.” Missouri v. Jenkins, 515 U.S. 70, 124 (1995) (Thomas, J.,

concurring); see also Link v. Wabash R.R. Co., 370

U.S. 626, 629–30 (1962) (noting that inherent power

to dismiss for lack of prosecution was contained in

Blackstone’s Commentaries); Fisher v. Pace, 336 U.S.

155, 159–60 (1949) (examining history of inherent

power of courts).

21

Examples of inherent powers include contempt,

sanctions, and a court’s “power to control admission to

its bar.” Chambers, 501 U.S. at 43. Others include the

power to “bar” a “criminal defendant who disrupts a

trial,” dismiss an action “on grounds of forum non conveniens,” dismiss a case “for failure to prosecute,” and

assess attorney’s fees against counsel. Id. at 44–45.

But these are incidental powers to the core judicial

power of deciding cases and issuing judgments over

parties already before the court. Inherent powers, in

other words, “fill in the interstices” in litigation.

Chambers, 501 U.S. at 46. They do not empower

judges to recruit non-parties to join a lawsuit.

Notice under Hoffmann-La Roche lacks any historical roots or ties to traditional practice. Remember

that at the notice phase, employees seeking to “opt in”

are not parties. So, instead of resolving a dispute, notice allows a court to “generat[e] and manage[] …

other disputes” involving non-parties. Hoffmann-La

Roche, 493 U.S. at 176 (Scalia, J., dissenting). And

that is “so out of accord with age-old practices that

surely it should not be assumed unless it has been

clearly conferred.” Id.

In short, Hoffmann-La Roche throws aside centuries of judicial tradition. Parties have always been the

master of a case. But conditional certification puts

non-parties at the center of §216(b) actions. Notice, in

other words, flips the judicial role upside down. And

there is often nothing defendants—including many

amici States—can do about it.

***

When cases come to court, everyone has a role. The

judge’s role is simple: decide the case before her.

Judges decide cases or controversies—they do not

22

create them. Conditional certification mangles this

historical role and places the judge as the case inquisitor, contrary to all historical practice. This Court

should restore the judge’s proper role in §216(b) actions, thereby protecting the interests of sovereign

States and reconciling the statute with our history

and tradition.

C.

Without

textual

or

historical

support, courts are confused on how

to conduct collective-action notice

practice.

Even if this Court is not ready to do away with the

collective-action-notice practice altogether, it should

accept this case to clarify the confusion among lower

courts. Without textual or historical guidance on

court-ordered notices, lower courts have been issuing

notice under §216 “with little guidance that one can

call law.” Clark, 68 F.4th at 1007. As it stands, the

lower courts are now divided four separate ways.

“[M]ost federal courts” adopt the Lusardi approach,

permitting notice based solely on a plaintiff’s allegations of similarity. Pet.App.38a (citing Lusardi v.

Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987)). The Fifth

Circuit requires plaintiff to show similarity by the preponderance of the evidence, Swales v. KLLM Transp.

Servs., LLC, 985 F.3d 430, 443 & n.65 (5th Cir. 2021),

while the Sixth Circuit has adopted the “strong likelihood” standard “analogous” to a preliminary injunction, Clark, 68 F.4th at 1010–11. And the Seventh

Circuit, the most recent to enter the fray, holds that

notice is proper whenever a material dispute exists as

to whether employees are similarly situated.

Pet.App.20a–21a.

23

For the reasons stated above, at 7–22, amici States

encourage this Court to grant certiorari and get rid of

the practice altogether. Even if not, this Court should

grant certiorari to address the deepening circuit split

on when courts can order such notices. Doing so will

provide much-needed guidance to the courts below.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

DAVE YOST

Ohio Attorney General

MATHURA J. SRIDHARAN*

Ohio Solicitor General

*Counsel of Record

JOHN F. KERKHOFF

Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614.466.8980

Mathura.Sridharan@OhioAGO.gov

NOVEMBER 2025

Counsel for Amicus Curiae

State of Ohio

24

Additional Counsel and Signatories

STEVE MARSHALL

Alabama Attorney General

TIM GRIFFIN

Arkansas Attorney General

JAMES UTHMEIER

Florida Attorney General

CHRISTOPHER M. CARR

Georgia Attorney General

RAÚL R. LABRADOR

Idaho Attorney General

THEODORE E. ROKITA

Indiana Attorney General

BRENNA BIRD

Iowa Attorney General

KRIS KOBACH

Kansas Attorney General

LIZ MURRILL

Louisiana Attorney General

CATHERINE L. HANAWAY

Missouri Attorney General

MICHAEL T. HILGERS

Nebraska Attorney General

25

DREW H. WRIGLEY

North Dakota Attorney General

GENTNER DRUMMOND

Oklahoma Attorney General

ALAN WILSON

South Carolina Attorney General

MARTY JACKLEY

South Dakota Attorney General

JONATHAN SKRMETTI

Tennessee Attorney General and Reporter

KEN PAXTON

Texas Attorney General

DEREK E. BROWN

Utah Attorney General

JOHN B. MCCUSKEY

West Virginia Attorney General

STEVE MONTENEGRO

Speaker of the Arizona House of Representatives

WARREN PETERSEN

President of the Arizona Senate