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 & CO., et al.,

Petitioners,

v.

MONICA RICHARDS, individually and on behalf

of all others similarly situated,

Respondents.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

____________

BRIEF OF WASHINGTON LEGAL FOUNDATION AS

AMICUS CURIAE SUPPORTING PETITIONER

____________

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

November 17, 2025

i

QUESTION PRESENTED

Whether Hoffmann-La Roche Inc. v. Sperling,

493 U.S. 165 (1989), should be overruled.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................................... i

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

INTEREST OF AMICUS CURIAE ......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................ 1

ARGUMENT ............................................................ 4

I.

HOFFMANN-LA ROCHE ISN’T WORKING .......... 4

II.

HOFFMANN-LA ROCHE WORKS THREE

INDEPENDENT CONSTITUTIONAL HARMS ........ 8

A. Hoffmann-La Roche can’t be squared

with Article III ......................................... 8

B. Hoffmann-La Roche can’t be squared

with the Fifth Amendment’s due

process right ........................................... 10

C. Hoffmann-La Roche can’t be squared

with the statute’s text ............................ 11

CONCLUSION ....................................................... 15

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bill Johnson’s Restaurants, Inc. v. NLRB,

461 U.S. 731 (1983)................................................3

Caperton v. A.T. Massey Co.,

556 U.S. 868 (2009)..........................................3, 11

Caterpillar, Inc. v. Williams,

482 U.S. 386 (1987)..............................................10

Cent. Bank of Denver, N.A. v.

First Interstate Bank of Denver, N.A.,

511 U.S. 164 (1994)..............................................13

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010)............................................6, 7

Clark v. A&L Homecare & Training Ctr., LLC,

68 F.4th 1003 (6th Cir. 2023) ................................2

Cohens v. Va.,

6 Wheat. 264 (1821) ...............................................8

Day v. McDonough,

547 U.S. 198 (2002)................................................9

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022)................................................7

iv

Fed. Election Comm’n v.

Dem. Senatorial Campaign Comm.,

454 U.S. 27 (1981)................................................12

Fed. Election Comm’n v. Swallow,

304 F. Supp. 3d 1113 (D. Utah 2018)..................13

Genesis Healthcare Corp. v. Symczyk,

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

Greenlaw v. United States,

554 U.S. 237 (2008)................................................6

In re Murchison,

349 U.S. 133 (1955)..............................................11

Hilton v. S.C. Pub. Railways Comm’n,

502 U.S. 197 (1991)..........................................4, 14

Hoffmann-La Roche Inc. v. Sperling,

493 U.S. 165 (1989).........................i, 1–7, 9, 11–14

Home Depot U.S.A., Inc. v. Jackson,

587 U.S. 435 (2019)..............................................10

Jesner v. Arab Bank, PLC,

584 U.S. 241 (2018)..............................................13

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024)................................................2

Lucia v. SEC,

585 U.S. 237 (2018)................................................1

Lusardi v. Xerox Corp.,

118 F.R.D. 351 (D.N.J. 1987) ................................5

v

McCutcheon v. Fed. Election Comm’n,

572 U.S. 185 (2014)..............................................14

N.Y. Life Ins. Co. v. Head,

234 U.S. 149 (1914)..............................................15

Nvidia v. Ohman,

604 U.S. 20 (2024)..................................................1

Osborn v. Bank of the U.S.,

9 Wheat. 738 (1824) ...............................................3

Royal Canin U. S. A., Inc. v. Wullschleger,

604 U.S. 22 (2025)................................................10

Skilling v. United States,

561 U.S. 358 (2010)..............................................13

Swales v. KLLM Transp. Servs., LLC,

985 F.3d 430 (5th Cir. 2021)...................... 3, 5, 7, 9

Trump v. CASA, Inc.,

606 U.S. 831 (2025)................................................9

Tumey v. Ohio,

273 U.S. 510 (1927)..........................................3, 11

United States v. Locke,

471 U.S. 84 (1985)..........................................12, 13

United States v. Tohono O’odham Nation,

563 U.S. 307 (2011)..............................................13

United States v. Samuels,

808 F.2d 1298 (8th Cir. 1987)..............................10

vi

United States v. Sineneng-Smith,

590 U.S. 371 (2020).................................. 3, 6, 9, 10

U.S. Catholic Conf. v.

Abortion Rts. Mobilization, Inc.,

487 U.S. 72 (1988)............................................8, 14

Constitutional Provisions

U.S. Const., art. I ........................................................8

U.S. Const., art. II .......................................................8

U.S. Const., art. III ................................. 3, 8, 9, 10, 11

U.S. Const., art. III, § 2.........................................8, 10

U.S. Const., amend. I ................................................10

U.S. Const., amend. V ................................. 3, 8, 10, 11

Statutes

29 U.S.C. § 216(b).................... 1, 4, 5, 9, 11, 12, 13, 14

29 U.S.C. § 626(b)........................................................1

Court Rules

Fed. R. Civ. P. 23 .........................................................9

Other Authorities

The Federalist, No. 47.................................................8

vii

Alexander Hamilton,

Opinion on the Constitutionality of

an Act to Establish a Bank

(Feb. 23, 1793)......................................................13

Seyfarth Shaw LLP,

2024 FLSA Litigation Metrics & Trends ..............5

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. It defends free enterprise,

individual rights, limited government, and the rule of

law. WLF advances that mission, in part, by

appearing as amicus curiae to urge the Court to

clarify the contours of the Fair Labor Standards Act,

Nvidia v. Ohman, 604 U.S. 20 (2024), and to uphold

the Constitution’s careful separation of powers, Lucia

v. SEC, 585 U.S. 237 (2018).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Neither section 216(b) of the Fair Labor

Standards Act (FLSA), nor the Age Discrimination in

Employment Act (ADEA), provides a role for district

courts to facilitate the plaintiffs’ bar in developing

collective actions. 29 U.S.C. §§ 216(b); 626(b). Yet for

nearly forty years, those courts have been

commandeered into doing so thanks to Hoffmann-La

Roche Inc. v. Sperling, 493 U.S. 165 (1989). There, the

Court conferred on a district court a special

“managerial responsibility,” id. at 171, that “extend[s]

to cases that have not actually been filed in his court.”

Id. at 175 (Scalia, J., dissenting).

* No party’s counsel authored any part of this brief. No

person or entity, other than Washington Legal Foundation and

its counsel, paid for the brief’s preparation or submission. Every

party’s counsel received timely notice of WLF’s intent to file this

brief.

2

As the Petition recounts, this instruction that

the lower courts regularly “bend[] traditionally

understood case-or-controversy limitations” has

unleashed confusion nationwide. Id. at 180 (Scalia, J.,

dissenting). No fewer than four standards—none of

them precise, all of them time-consuming—have

formed in response to Hoffmann. Pet. 11–19.

Worse yet, this judicial solicitation of new

claims inevitably stacks the deck—not only by

inviting the judge’s early imprimatur on the side of

the plaintiffs, but by increasing the settlement value

of the case. Clark v. A&L Homecare & Training Ctr.,

LLC, 68 F.4th 1003, 1007 (6th Cir. 2023) (“[T]he

decision to send notice of an FLSA [or ADEA] suit to

other employees is often a dispositive one, in the sense

of forcing a defendant to settle—because the issuance

of notice can easily expand the plaintiffs’ ranks a

hundredfold”). In short, Hoffmann “has thus become

an impediment, rather than an aid, to accomplishing

the basic judicial task of saying what the law is.”

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 410

(2024) (internal quotation marks, citation, and

brackets omitted).

Merely straightening out this four-way mess is

reason enough for certiorari. But there’s no clean way

to save the precedent—even a Hoffmann stripped

down to a one-time modest recruitment letter cannot

be reconciled with the Constitution. That’s because

Hoffmann’s

instruction

that

district

courts

collaborate with the plaintiffs’ bar in “[s]eeking out

and notifying sleeping potential plaintiffs,” 493 U.S.

at 181 (Scalia, J., dissenting), works at least three

independent constitutional harms:

3

1. It imposes a party-shopping role on the

courts in violation of Article III’s instruction that “the

judicial power . . . is capable of acting only when the

subject is submitted to it by a party who asserts his

rights in the form prescribed by law.” Osborn v. Bank

of the U.S., 9 Wheat. 738, 819 (1824). Yet Hoffmann

forces district courts to engage with individuals whose

claims and “cases . . . have not actually been filed in

[the] court.” 493 U.S. at 175 (Scalia, J., dissenting).

2. Drafting district judges into the business of

soliciting claimants also risks “judicial thumbs (or

anvils) on the scale” in violation of the Fifth

Amendment’s due process guarantee. Swales v.

KLLM Transp. Servs., LLC, 985 F.3d 430, 436 (5th

Cir. 2021). “Courts are” supposed to be “essentially

passive instruments of government.” United States v.

Sineneng-Smith, 590 U.S. 371, 376 (2020) (internal

quotation marks, brackets, and citation omitted).

“They do not, or should not, sally forth each day

looking for wrongs to right. They wait for cases to

come them.” Id. But Hoffmann transmogrifies district

judges from umpires into plaintiff’s side pinch-hitters.

This strikes against “the controlling principle” of the

Fifth Amendment’s due process guarantee, that “‘the

balance’” of justice not only be, but appear to be, “‘nice,

clear[,] and true.’” See Caperton v. A.T. Massey Co.,

556 U.S. 868, 878 (2009) (quoting Tumey v. Ohio, 273

U.S. 510, 532 (1927)).

3. There’s just no basis in the statutory text for

enlisting the judiciary in noticing. It is as true today

as it was in 1989 that “one searches the [Hoffmann]

Court’s opinion in vain for any explicit statutory

command that federal courts assume this novel role.”

493 U.S. at 176 (Scalia, J., dissenting). In imposing it,

4

the Court rewrote the statute itself, usurping the

lawmaking prerogative of the Congress and upsetting

the Constitution’s careful division of powers. “[T]he

only serious justification for t[hat] decision” was that

it might “make[] for more efficient and economical

adjudication . . . of other cases that might later be filed

separately.” Id. at 180 (Scalia, J., dissenting)

(emphasis in original). Even if that “justification” “is

entirely valid,” it cannot account for the theft of

legislative power by the Court. Id.

There’s no way to fashion a rule for judges to

recruit plaintiffs without tripping into all three of

these constitutional harms. So Hoffmann ought to be

overruled. As the lower courts have no idea how to

apply Hoffmann anyway and eliminating the notice

requirement would extinguish no potential plaintiff’s

right to suit, doing so “would dislodge” no “settled

rights and expectations or require an extensive

legislative response.” Hilton v. S.C. Pub. Railways

Comm’n, 502 U.S. 197, 202 (1991). It would, however,

bring section 216(b) back in accord with the

Constitution.

ARGUMENT

I.

HOFFMANN-LA ROCHE ISN’T WORKING.

Nearly forty years ago, this Court began a

nationwide experiment on the district courts. In

Hoffmann, the Court created a responsibility for

judges to assist the plaintiffs’ bar in building up and

building out collective action cases brought under 29

U.S.C. § 216(b). The Court did not ground this right

in text or history but in “a managerial responsibility

to oversee the joinder of additional parties to assure

5

that the task is accomplished in an efficient and

proper way.” 493 U.S. at 170–71.

This “managerial responsibility” was a

revolution at the time and has remained an outlier

ever since. Pet. 20. And there’s a good reason for

that—the Hoffmann experiment has been a failure.

Thousands of FLSA suits are filed each year, and a

substantial portion of those involve section 216(b).

After a long time, the district courts do stumble their

way to certification, which often ends up being the

dispositive turn in the case—not a merits ruling.

Seyfarth Shaw LLP, 2024 FLSA Litigation Metrics &

Trends, https://perma.cc/GHN8-EDLV (“2,709 FLSA

collective action cases terminated in 2024, 376 cases

reached an order on conditional certification (12.6%)”

while “155 cases reached an order on summary

judgment (5.7%); and 34 cases went to trial (1.3%)”).

Some courts apply the “deeply inefficient,” Pet.

App. 16a, two-step approach derived from Lusardi v.

Xerox Corporation, 118 F.R.D. 351 (D.N.J. 1987)—

which stacks the deck for plaintiffs early and

compounds the time courts must spend on building

the collective action class. Pet. 13–17. Others reduce

certification to a single crack of the bat, but even

under the strictest standard, developed by the Fifth

Circuit in Swales, “a district court must rigorously

scrutinize the realm of ‘similarly situated’ workers.”

985 F.3d at 434 (quoting 29 U.S.C. § 216(b)). That’s

no small allocation of scarce judicial resources. Id. at

441 (noting that under the Swales standard “[t]he

amount of discovery necessary . . . will vary case by

case”).

6

This chaos was predictable. Plaintiff-shopping

just isn’t a core competency of the district courts.

“There is no comparison” between the judicial

solicitation of plaintiffs and the need “for courts to

supervise and regulate the participation of existing

parties in actions that are pending.” Hoffmann, 493

U.S. at 177 (Scalia, J, dissenting) (emphasis in

original). No surprise then that certification takes

extraordinary time and resources and produces

inconsistent results across the country, “imped[ing]

the stable and orderly adjudication of future cases.”

Citizens United v. Fed. Election Comm’n, 558 U.S.

310, 379 (2010) (Roberts, C.J., concurring).

“In our adversarial system of adjudication,”

courts “follow the principle of party presentation.”

Sineneng-Smith, 590 U.S. at 375. This preserves the

rule of law—the courts “do not, or should not, sally

forth each day looking for wrongs to right,” but act as

“essentially passive instruments of government.” Id.

at 375–76 (internal citations, quotation marks, and

brackets omitted). Judges must “‘rely on the parties

to frame the issues for decision’” and take on merely

“‘the role of neutral arbiter of matters the parties

present.’” Id. (quoting Greenlaw v. United States, 554

U.S. 237, 243 (2008)). Hoffmann breaks that promise

of neutrality—and the four-way circuit division

identified in the Petition shows just how

uncomfortable the courts are serving as plaintiff

counsel’s investigators.

Claim recruitment does more than draw judges

out of their bailiwick and eat up resources—it tilts

outcomes. Pet. 22–23. Many FLSA or ADEA cases

settle, not necessarily due to the merits, but because

of “the appearance of court-endorsed solicitation of

7

claims (by letting benign notice-giving for casemanagement purposes warp into endorsing the

action’s merits, or seeming to, thus stirring up

unwarranted litigation)” and “the opportunity for

abuse (by intensifying settlement pressure no matter

how meritorious the action).” Swales, 985 F.3d at 435.

Unsurprisingly, Hoffmann is no venerable

precedent—it’s “managerial responsibility” doctrine

has found no purchase elsewhere. Congress certainly

hasn’t found court-assisted plaintiff-shopping to be a

panacea worthy of writing into any other law. Pet. 20.

Circuit percolation has provided no clear best

practice. And Hoffmann distorts the core function of

the judiciary by making judges a servant of a

plaintiff’s case rather than an agent of unbiased

justice. Swales, 985 F.3d at 436 (noting that

“leniency” in certifying a collective action “exerts

formidable settlement pressure”). In short, Hoffmann

has been “undermined by experience since its

announcement.” Citizens United, 558 U.S. at 364.

If a case constitutes an “abuse of judicial

authority . . . [and] was egregiously wrong from the

start,” stare decisis is no safe harbor. Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215, 231

(2022). When an outlier decision’s “reasoning was

exceptionally weak” and “has had damaging

consequences,” id., it is proper for the Court to “be

more willing to depart from that precedent.” Citizens

United, 558 U.S. at 378 (Roberts, C.J., concurring).

Hoffmann, which supplied “no source of authority for”

its “extraordinary exercise of the federal judicial

power,” 493 U.S. at 174 (Scalia, J., dissenting), is just

such an “errant precedent.” Citizens United, 558 U.S.

8

at 378 (Roberts, C.J., concurring). It should be

overruled.

II.

HOFFMANN-LA

ROCHE

WORKS

THREE

INDEPENDENT CONSTITUTIONAL HARMS.

Hoffmann is not merely an aberrant and

damaging decision. It is so contrary to the

Constitution that there is no way “to shore up the

original mistake.” Id. at 379. Even a bare-bones

noticing requirement can’t fix what ails Hoffmann—

that would only reduce the opinion’s judicial

hypertrophy, not cure it. The Hoffmann rule violates

Article III, the Fifth Amendment’s due process

guarantee, and that “sacred maxim of free

government,” the separation of powers. The

Federalist, No. 47. It needs to go.

A. Hoffmann-La Roche can’t be squared

with Article III.

Article III, like Articles I and II, is no plenary

delegation of sovereignty. Rather, it is premised on

that “central principle of a free society that courts

have finite bounds of judicial authority, some of

constitutional origin, which exist to protect citizens

from . . . the excessive use of judicial power.” U.S.

Catholic Conf. v. Abortion Rts. Mobilization, Inc., 487

U.S. 72, 77 (1988). Where Article III limits them,

courts “have no more right to decline the exercise of

jurisdiction which is given, than to usurp that which

is not given.” Cohens v. Va., 6 Wheat. 264, 404 (1821).

Article III limits “the judicial Power . . . to all

Cases, in Law and Equity.” U.S. Const., art. III, § 2

(emphasis supplied). But Hoffmann forces courts to

9

try to solicit clients and causes not before them. 493

U.S. at 176 (Scalia, J., dissenting) (“The claims

facilitated or ‘managed’ here had not yet been

submitted to the district court”) (capitalization

altered). Indeed, when “a modest initiating role for a

court” is usually “appropriate,” Sineneng-Smith, 590

U.S. at 376, a district court is—at its discretion—

dismissing a defective claim, not aggregating more

plaintiffs and causes to its docket. E.g., Day v.

McDonough, 547 U.S. 198, 209 (2002) (upholding

dismissal of habeas petition because “district courts

are permitted, but not obliged, to consider, sua sponte,

the timeliness of a state prisoner’s habeas petition”).

Contrast the Hoffmann rule with class

certification under Rule 23, the “modern form” of the

ancient “bill of peace.” Trump v. CASA, Inc., 606 U.S.

831, 849 (2025). Class certification complies with

Article III because it involves a controversy brought

through the legal fiction of a representative plaintiff,

where there is enough “numerosity (such that joinder

is impracticable).” Id. (emphasis supplied). Not so

under Hoffmann—which is predicated on facilitating

practical joinder. 493 U.S. at 171. Rule 23 fixes the

scale of similarly situated relief because “a putative

class acquires an independent legal status once it is

certified under Rule 23.” Genesis Healthcare Corp. v.

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

contrast, involves the judicial solicitation of new

clients and claims “who in turn become [additional]

parties . . . by filing written consent with the court.”

Id.; Swales, 985 F.3d at 437 (noting “the difference

between § 216(b)’s opt-in feature and Rule 23’s optout feature”).

10

Inviting a non-essential new party to the court

to litigate is simply irreconcilable with Article III,

which instantiates a passive, not an activist,

judiciary—filled out by courts that “‘wait for cases to

come to them.’” Sineneng-Smith, 590 U.S. at 376

(quoting United States v. Samuels, 808 F.2d 1298,

1301 (8th Cir. 1987) (Arnold, J., concurring) (brackets

omitted)). Plaintiffs, not district court judges, are ‘‘the

master of the complaint.’” Royal Canin U. S. A., Inc.

v. Wullschleger, 604 U.S. 22, 35 (2025) (quoting

Caterpillar, Inc. v. Williams, 482 U.S. 386, 398–99

(1987)). But when a district court joins the hunt for

additional plaintiffs and causes, as Hoffmann asks,

the judge is participating in the amendment of the

complaint itself, not merely deciding the question

before it. U.S. Const., art. III, § 2.

B. Hoffmann-La Roche can’t be squared

with the Fifth Amendment’s due process

right.

A plaintiff seeking relief is exercising “an

aspect of the First Amendment right to petition the

Government for redress of grievances,” under the

interlocking protection of the Constitution’s due

process guarantee. Bill Johnson’s Restaurants, Inc. v.

NLRB, 461 U.S. 731, 741 (1983). When a court

affirmatively seeks to backfill a plaintiff’s judicial

posture by enlarging the pool of claimants and

increasing the suit’s settlement value, a judge is

transforming the plaintiff’s Petition Clause activity

into a warped and dangerous form of government

speech—a manifestation of judicial prejudice that the

Fifth Amendment forbids. “The rule of law requires

neutral forums for resolving disputes.” Home Depot

U.S.A., Inc. v. Jackson, 587 U.S. 435, 446 (2019)

11

(Alito, J., dissenting). And so the Fifth Amendment

shields against “the risk that for certain cases, some

neutral forums might be more neutral than others,”

or just “might appear that way, which is almost as

deleterious.” Id.

Even

if

Hoffmann’s

plaintiff-shopping

requirement doesn’t exceed Article III limits, it

infringes on the Fifth Amendment rights of

defendants, who are entitled to a facially neutral

tribunal before “arbiters of adversarial claims,” not

“inquisitors of justice.” Hoffmann, 493 U.S. at 181

(Scalia, J., dissenting). “A fair trial in a fair tribunal

is a basic requirement of due process,” and “our

system of law has always endeavored to prevent even

the probability of unfairness.” In re Murchison, 349

U.S. 133, 136 (1955).

But Hoffmann requires judges to act unfairly

by soliciting for one side of the case before them and

then proceeding to adjudge those added claims on the

merits. That breaks “the controlling principle” of due

process—that even the possibility of pre-judgment is

verboten: “‘the balance’” must not only be, but appear

to be, “‘nice, clear[,] and true.’” See Caperton, 556 U.S.

at 878 (quoting Tumey, 273 U.S. at 532).

C. Hoffmann-La Roche can’t be squared

with the statute’s text.

Perhaps if section 216(b) directly limned the

role that the Hoffmann Court established, these

constitutional defects could be forgiven under stare

decisis. But it is as true today as it was in 1989 that

the one “searches . . . in vain for any explicit statutory

command that federal courts assume this novel role.”

12

493 U.S. at 176 (Scalia, J., dissenting). On the

contrary, the statute crisply provides that “[n]o

employee shall be a party plaintiff to any such

[collective] action unless he gives his consent in

writing to become such a party and such consent in

filed in the court in which such action is brought.”

29 U.S.C. § 216(b). It grants no role for the courts to

assist plaintiffs in adding “similarly situated” persons

to the case. Id.

Yet the Hoffmann Court read into this silence

an implied sidekick role for the district courts. This

was deeply wrong. Just as courts “must reject

administrative constructions of the statute, whether

reached by adjudication or by rulemaking, that are

inconsistent with the statutory mandate,” so too must

courts decline the temptation to fix statutes to carry

out a judicially preferred policy. Fed. Election

Comm’n v. Dem. Senatorial Campaign Comm., 454

U.S. 27, 32 (1981) (spelling modernized).

In dissent, Justice Scalia conceded that the

Hoffmann majority may have alighted on good policy

for a “more efficient and economical adjudication of

cases.” 493 U.S. at 180. “The problem is that is a

justification in policy but not in law.” Id. Experience

has borne out that Justice Scalia may have been too

optimistic on the efficiency of court-assisted plaintiffnoticing, see supra at 4–7, but his constitutional

objection remains. That “Congress might have acted

with greater clarity or foresight does not give courts a

carte blanche to redraft statutes in an effort to

achieve that which Congress is perceived to have

failed to do.” United States v. Locke, 471 U.S. 84, 95

(1985) (italics omitted). Or as Hamilton put it:

“Circumstances may affect the expediency of the

13

measure, but they can neither add to, nor diminish its

constitutionality.” Alexander Hamilton, Opinion on

the Constitutionality of an Act to Establish a Bank

(Feb. 23, 1793), https://perma.cc/77PY-W9VS.

After all, courts may no longer find implied

rights of action or extra liabilities in criminal or civil

enforcement statutes—even if that might be a good

idea. E.g., Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 191–92

(1994); Skilling v. United States, 561 U.S. 358, 415

(2010); Fed. Election Comm’n v. Swallow, 304

F. Supp. 3d 1113, 1118 (D. Utah 2018) (striking

helping-or-assisting civil liability created by FEC for

“improperly intruding into the realm of law-making

that is the exclusive province of Congress”). Why?

Because “Congress, not the Judiciary, must decide”

those thorny policy questions. Jesner v. Arab Bank,

PLC, 584 U.S. 241, 268 (2018) (Kennedy, J.,

plurality). That same “deference to the supremacy of

the Legislature,” Locke, 471 U.S. at 95, applies with

full force here. By creating a right for district court

judges “to take action directed, not to the resolution

of the dispute before it, but to the generation and

management of other disputes,” the Hoffmann Court

seized legislative power and usurped the prerogative

of Congress. 493 U.S. at 176 (Scalia, J., dissenting).

It may be that having the courts stop sending

out invitations-to-suit will make life harder for the

plaintiffs’ bar. If so, plaintiffs’ attorneys are “free to

direct their complaints to Congress.” United States v.

Tohono O’odham Nation, 563 U.S. 307, 317 (2011).

And if Congress wants to amend section 216(b) to

(constitutionally) facilitate collective actions, it can

always do so. The tailoring would matter, see

14

McCutcheon v. Fed. Election Comm’n, 572 U.S. 185,

199 (2014) (Roberts, C.J., controlling), but, as just one

example, “Congress could give an executive agency

authority to compel disclosure of prior employees’

names, so that the agency might invite them to join

an existing suit or provide their names to counsel.”

Hoffmann, 493 U.S. at 176 (Scalia, J. dissenting). But

Congress has so far declined to write such a statute—

and that inaction is not license for this Court to call

itself in as a substitute for bicameralism-andpresentment. “The courts, no less than the political

branches of the government, must respect the limits

of their authority.” U.S. Catholic Conf., 487 U.S. at

77.

*

*

*

Perhaps if Hoffmann was working out just fine,

even three separate constitutional injuries could be

stomached for the sake of stare decisis. But it’s not.

Pet. 11–24.

And given both the confusion in the courts of

appeals and that applying the plain text of section

216(b) would extinguish no potential plaintiff’s right

to suit, overruling Hoffmann “would dislodge” no

“settled rights and expectations or require an

extensive legislative response.” Hilton, 502 U.S. at

202. It’s time to shut down this experiment in judicial

plaintiff-shopping and complaint-amending.

15

CONCLUSION

Ending Hoffmann is “the necessary result of

the Constitution.” N.Y. Life Ins. Co. v. Head, 234 U.S.

149, 161 (1914). The Court should grant the writ so it

may do so.

Respectfully submitted,

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

November 17, 2025