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, et al.,

Petitioners,

v.

MONICA RICHARDS, INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Seventh Circuit

BRIEF OF AMICUS CURIAE THE SOCIETY

FOR HUMAN RESOURCE MANAGEMENT

IN SUPPORT OF PETITIONERS

Kyle Winnick

Seyfarth Shaw LLP

620 Eighth Avenue

New York, NY 10018

Lennon Haas

Ralph Culpepper III

Seyfarth Shaw LLP

1075 Peachtree Street

Atlanta, GA 30309

Noah Finkel

Counsel of Record

Richard Lapp

Seyfarth Shaw LLP

233 South Wacker Drive,

Suite 8000

Chicago IL 60606

(312) 460-5913

nfinkel@seyfarth.com

Attorneys for Amicus Curiae

The Society For Human Resource Management

387432

A

(800) 274-3321 • (800) 359-6859

TABLE OF CONTENTS

Page

INTERESTS OF THE AMICUS CURIAE ............... 1

SUMMARY OF THE ARGUMENT .......................... 3

ARGUMENT ............................................................. 5

I. CONGRESS ENACTED THE PORTAL

TO PORTAL ACT TO CONSTRAIN

COLLECTIVE ACTIONS,

SOMETHING LOWER COURTS’

INTERPRETATIONS OF HOFFMANLA ROCHE HAVE UNDERMINED ............ 5

A. Congress Amended the FLSA in

Response to Excessive Litigation. ........... 5

B. Lower Courts’ Interpretations of

Hoffman-La Roche Have Unleashed

Excessive Litigation. ................................ 7

II. THERE IS A SIGNIFICANT CIRCUIT

COURT AND DISTRICT COURT

SPLIT ON THE APPLICABLE

STANDARD FOR CONDITIONAL

CERTIFICATION OF AN FLSA

ACTION. ...................................................... 12

III. THE MULTITUDE OF NOTICE

STANDARDS ADOPTED SINCE

HOFFMAN-LA ROCHE AND THE

LITIGATION PROLIFERATION

THEY HAVE SPAWNED

UNNECESSARILY BURDENS

HUMAN RESOURCE

PROFESSIONALS AND MULTISTATE ENTERPRISES. ........................... 13

i

A. Confusion for Employers and

Employees Reigns When

Inconsistent Legal Standards

Proliferate. ............................................. 14

B. Inconsistent Collective Action

Notice Standards Unnecessarily

Burden HR Professionals. ..................... 16

CONCLUSION ........................................................ 19

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abubakar v. City of Solano,

2008 WL 508911 (E.D. Cal. Feb. 22,

2008) .....................................................................10

Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680 (1946) ................................................6

Arrington v. Nat’l Broadcasting Co.,

Inc.,

531 F. Supp. 498 (D.D.C. 1982) .............................6

Brooks v. Farm Fresh, Inc.,

759 F. Supp. 1185 (E.D. Va. 1991) ......................11

Clark v. A&L Homecare & Training

Ctr., LLC,

68 F.4th 1003 (6th Cir. 2023) ........................12, 15

Coldiron v. Pizza Hut, Inc.,

2004 WL 2601180 (C.D. Cal. Oct. 25,

2004) .....................................................................11

Escobar v. Motorino E. Vill. Inc.,

2015 WL 4726871 (S.D.N.Y. Aug. 10,

2015) .......................................................................9

Green v. Atlas Senior Living, LLC,

2022 WL 2007398 (S.D. Ga. June 6,

2022) .......................................................................9

Hoffman-La Roche, Inc. v. Sperling,

493 U.S. 165 (1989) ........................................ 3, 5-8

iii

Ingersoll v. Royal & Sunalliance USA,

Inc.,

2006 WL 2091097 (W.D. Wash. July

25, 2006) ...............................................................10

Kaas v. Pratt & Whitney,

1991 WL 158943 (S.D. Fla. 1991) .......................11

Knepper v. Rite Aid Corp.,

675 F.3d 249 (3d Cir. 2012) ...............................6, 7

Krueger v. New York Telephone Co.,

163 F.R.D. 446 (S.D.N.Y. 1995) ...........................11

Laverenz v. Pioneer Metal Finishing,

LLC,

746 F. Supp. 3d 602 (E.D. Wis. 2024) ...................9

Lundeen v. 10 W. Ferry St. Operations

LLC,

156 F.4th 332 (3d Cir. 2025)..................................7

Lusardi v. Xerox Corp.,

118 F.R.D. 351 (D.N.J. 1987) ................................8

Newson-Pace v. United States,

177 Fed. Cl. 262 (2025) ........................................13

Rosen v. Reckitt & Colman, Inc.,

1994 WL 652534 (S.D.N.Y. 1994)........................11

Shushan v. Univ. of Colorado at

Boulder,

132 F.R.D. 263 (D. Colo. 1990) ........................7, 12

Skiba v. Timothy,

No. 4:20-CV-02656, 2023 WL

11915621 (S.D. Tex. Mar. 21, 2023) ....................12

iv

Swales v. KLLM Transp. Servs., L.L.C.,

985 F.3d 430 (5th Cir. 2021)..........................11, 15

Valte v. United States,

155 Fed. Cl. 561 (2021) ..................................12, 13

Statutes

29 U.S.C. § 216(b)........................................................7

Fair Labor Standards Act of 1938, ch.

676, 52 Stat. 1060 (codified at 29

U.S.C. §§ 201–209) .................................................5

Jarod S. Gonzalez, Solving Fair Labor

Standards Act Collective Action

Law, 58 Tulsa L. Rev. 45 (2022) ............................9

Note, Fair Labor Standards Under the

Portal to Portal Act, 15 U. Chi. L.

Rev. 352 (1948) ......................................................7

Portal-to-Portal Act of 1947, Pub. L. No.

80-49, 61 Stat. 84, 87 (1947) ..................................7

52 Stat. at 1069. ..........................................................6

Other Authorities

7 Newberg and Rubenstein on Class

Actions § 23:38 (6th ed.) ......................................11

H.R. Rep. No. 80-71 (1947) (reprinted in

Bureau of Nat’l Affairs, The Portal

to Portal Act of 1947: What It Does,

How It Applies, What It Means 2

(1947)) ....................................................................6

v

Litigation Metrics & Trends (2024),

https://tinyurl.com/4burtz47................................10

S. Rep. No. 80-48 (1947)..............................................6

Seyfarth Shaw LLP, 18th Annual

Workplace Class Action Report 2

(2022), https://tinyurl.com/43jsu92e ...................10

State law “Off-the-Clock” Litigation:

Strategies for Opposing Certification

and a Proposal for Reform, 19 Kan.

J.L. & Pub. Pol'y 433 (2010) ..................................9

Supreme Court Rule 10(a) ........................................14

Supreme Court Rule 37.2 ...........................................1

Supreme Court Rule 37.6 ...........................................1

vi

INTERESTS OF THE AMICUS CURIAE1

SHRM, the Society for Human Resource

Management, is a member-driven catalyst for

creating better workplaces where people and

businesses thrive together. As the trusted authority

on all things work, SHRM is the foremost expert,

researcher, advocate, and thought leader on issues

and innovations impacting today’s evolving

workplaces. With nearly 340,000 members in 180

countries, SHRM touches the lives of more than 362

million workers and their families globally. SHRM’s

mission, as set forth in its bylaws, is to promote the

use of sound and ethical human resource

management practices in the profession, and (a) to be

a recognized world leader in human resource

management; (b) to provide high-quality, dynamic,

and responsive programs and service to its customers

with interests in human resource management; (c) to

be the voice of the profession on human resource

management issues; (d) to facilitate the development

and guide the direction of the human resource

profession; and (e) to establish, monitor, and update

standards for the profession. As an influential voice,

SHRM advances the human resource profession to

ensure that human resources is recognized as an

1 Pursuant to Supreme Court Rule 37.6, SHRM states that no

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other

than SHRM, its members, or their counsel made a monetary contribution to this brief’s preparation or submission. Pursuant to

Supreme Court Rule 37.2, SHRM’s attorneys notified counsel for

the parties via email on November 6, 2025 of SHRM’s intent to

file this brief, and no party responded with an objection to the

filing.

1

essential partner in developing and executing

organizational strategy.

SHRM offers this amicus brief in support of

Petitioner because the issues raised in this appeal are

of exceptional importance to both SHRM’s members

and the business community at large. Fair Labor

Standards Act (FLSA) collective actions are among

the most costly and disruptive lawsuits that

employers face. Nearly every aspect of employee

compensation can trigger liability.

SHRM has firsthand knowledge of these

challenges. Through our HR Knowledge Advisors—a

member benefit that provides access to experts

offering guidance, real-world insights, and practical

resources—we see that compliance questions remain

a persistent concern for HR professionals and their

counterparts in payroll, compensation, and legal

departments, particularly when navigating issues

that touch on the FLSA.

The wide variation in collective action notice

procedures across circuits, amplifies compliance

difficulties, creates inconsistencies in how employers

address notice, and destabilizes business practices,

none of which align with SHRM’s mission to support

clear, consistent, and compliance-oriented workplace

laws. The resulting confusion serves neither

employers nor employees.

Notice procedures, if allowed at all, should

instead be clear, consistent, and rooted in the FLSA’s

text and purpose. Granting Petitioner’s request for

certiorari and answering either question presented

achieves those goals.

2

SUMMARY OF THE ARGUMENT

Human resource (HR) professionals are

charged with myriad responsibilities that sit at the

intersection of people management and business

compliance. Pertinent here, it is HR professionals

who develop and implement workplace policies,

conduct investigations when allegations arise, and

often serve as intermediaries with courts, parties, or

juries to explain the employer’s relevant policies and

procedures. This includes helping organizations and

their employees navigate the complex and

inconsistent landscape of FLSA collective action

notice requirements, particularly for employers

operating across multiple states and federal circuits.

In the often nuanced, years-long litigation that may

follow issuance of collective action notice, HR

professionals are frequently found at the center of the

ensuing litigation and compliance steps necessary to

send out the notice.

HR professionals’ collective action-related

responsibilities have exploded in complexity and

volume since this Court’s decision in Hoffman-La

Roche v. Sperling, 493 U.S. 165, 173 (1989), and the

flood of litigation it created. Yet that explosion runs

counter to Congress’s explicit desire to constrain

collective actions when it enacted the Portal-to-Portal

Act over 70 years ago. The five or so standards for

collective action notice developed by lower courts after

Hoffman-La Roche only amplify the problem.

Ultimately, Hoffman-La Roche-induced FLSA

collective litigation and the associated patchwork

quilt of notice regimes (1) create confusion for the

employers and employees served by HR professionals,

3

and (2) impose severe and unnecessary burdens on

them. They run counter to stable workplace policy

and inject unacceptable uncertainty into compliance

guidance. This, in turn, disrupts previously

constructive employer-employee interactions, as even

employers acting in good faith struggle to operate

when rules and guidelines are unclear—and federal

courts themselves cannot agree on a single standard.

That unnecessarily expensive, burdensome,

and harmful state of affairs should not exist. SHRM

thus asks this Court to grant Eli Lilly’s petition for

certiorari to answer one or both of the questions the

petition presents, and reverse the erroneous standard

imposed by the Seventh Circuit.

4

ARGUMENT

I.

CONGRESS ENACTED THE PORTAL TO

PORTAL ACT TO CONSTRAIN COLLECTIVE ACTIONS, SOMETHING LOWER

COURTS’ INTERPRETATIONS OF HOFFMAN-LA ROCHE HAVE UNDERMINED.

In 1947, Congress added an opt-in requirement

to the FLSA’s collective action mechanism to curb

what it viewed as excessive litigation stirred up by

union officials. That opt-in feature, of course, did not

apply only to unions. Despite that congressional

intent, this Court held 42 years later that district

courts have discretion to facilitate notice to potential

collective members, an authority found nowhere in

the FLSA’s plain text. See Hoffman-La Roche, Inc.,

493 U.S. at 173. As interpreted by lower courts, that

decision ignited an expansion of aggregate litigation

and undid the balance that the Portal-to-Portal Act

ushered in 42 years earlier.

A.

Congress Amended the FLSA in

Response

to

Excessive

Litigation.

Federal regulation of compensation began in

1938. See Fair Labor Standards Act of 1938, ch. 676,

52 Stat. 1060 (codified at 29 U.S.C. §§ 201–209). The

law protects employees by establishing minimum

wage requirements and limiting the number of hours

they may be required to work before receiving

overtime compensation unless exempted. Originally,

the FLSA allowed employees (i) to maintain suits “for

and in behalf of himself or themselves and other

employees similarly situated,” or (ii) “designate an

agent or representative to maintain such action for

5

and in behalf of all employees similarly situated.” 52

Stat. at 1069.

In 1946, this Court held that “portal-to-portal”

time, such as walking to work on the employer’s

premises, constituted “work” under the FLSA and

therefore contributed to the maximum hours for

calculating overtime. See Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 690–92 (1946). This

decision triggered thousands of “representative”

lawsuits seeking back pay for such time. See Knepper

v. Rite Aid Corp., 675 F.3d 249, 254 n. 6 (3d Cir. 2012)

(citing S. Rep. No. 80-48, at 2 (1947)).

The procedure in these suits follow[ed]

a general pattern. A petition [was] filed

under section 16(b) by one or two

employees in behalf of many others. To

[these

petitions

were]

attached

interrogatories calling upon the

employer

to

furnish

specific

information regarding each employee

during

the

entire

period

of

employment. The furnishing of this

data alone [was] a tremendous

financial burden to the employer.

H.R. Rep. No. 80-71 (1947) (reprinted in Bureau of

Nat’l Affairs, The Portal to Portal Act of 1947: What

It Does, How It Applies, What It Means 2 (1947)).

In response to this “excessive litigation,”

Hoffman-La Roche, 493 U.S. at 173, and the “national

emergency” it created, Arrington v. Nat’l

Broadcasting Co., Inc., 531 F. Supp. 498, 500 (D.D.C.

1982), Congress passed the Portal-to-Portal Act. See

6

Portal-to-Portal Act of 1947, Pub. L. No. 80-49, 61

Stat. 84, 87 (1947).

The Portal-to-Portal Act amended the FLSA

by, among other things, disallowing representative

actions and an employee’s participation in a collective

action “unless he gives his consent in writing to

become such a party and such consent is filed in the

court in which such action is brought.” 29 U.S.C. §

216(b). This opt-in requirement “was part of a broad

Congressional response to court decisions imposing

unwanted liabilities and burdens on employers under

the [FLSA].” Shushan v. Univ. of Colorado at Boulder,

132 F.R.D. 263, 266 (D. Colo. 1990).2

“Thus, Congress created the opt-in scheme, not

as a worker-protection measure but ‘primarily as a

check against the power of unions’ and a bar to ‘oneway intervention’ whereby plaintiffs could wait for a

favorable outcome before choosing to opt in and be

bound by the judgment.” Lundeen v. 10 W. Ferry St.

Operations LLC, 156 F.4th 332, 340-41 (3d Cir. 2025)

(citing Knepper, 675 F.3d at 260).

B.

Lower Courts’ Interpretations of

Hoffman-La

Roche

Have

Unleashed Excessive Litigation.

Hoffman-La Roche held that “district courts

have discretion, in appropriate cases, to implement 29

U.S.C. § 216(b) . . . by facilitating notice to potential

plaintiffs.” 493 U.S. at 169. But it never addressed the

2 See also Note, Fair Labor Standards Under the Portal to

Portal Act, 15 U. Chi. L. Rev. 352, 360 (1948) (“The banning of

representative actions for unpaid wages is an obvious device to

prevent the maintenance of employee suits by labor unions.”).

7

procedures and standards to be applied in

determining whether courts should facilitate notice.

Instead, this Court warned that district courts must

not “use their power for a purpose that neither

achieves nor assists the resolution of claims before

them,” id. at 178, and should limit court-authorized

notice where doing so would “make for more efficient

and economical adjudication of cases.” Id. at 180.

Following Hoffman-La Roche, as Petitioners

delineated in their petition, district courts have

largely coalesced around a two-step process

enunciated by Lusardi v. Xerox Corp., 118 F.R.D. 351

(D.N.J. 1987). At the first step of this approach—and

echoing the “representative actions” initiated by

union officials before the passage of the Portal-toPortal Act—motions for “conditional” certification3

typically are accompanied by requests for contact

information of the putative collective members and

for the district court’s approval of a notice to be

disseminated. This step is oft-described as a “low”

evidentiary standard, which may be met by “a single

plaintiff’s affidavit,”4 with courts ignoring any

contrary proof submitted by the defendant.5

3 A “certification” process for 216(b) collective actions,

whether akin to Rule 23’s or not, exists nowhere in the FLSA,

much less a “conditional” one. Those terms and concepts are

purely a product of judge-made law created in response to Hoffman-LaRoche.

See, e.g., Escobar v. Motorino E. Vill. Inc., 2015 WL

4726871, at *2 (S.D.N.Y. Aug. 10, 2015) (collecting cases).

4

5 See Jarod S. Gonzalez, Solving Fair Labor Standards Act

Collective Action Law, 58 Tulsa L. Rev. 45, 52 (2022) (The “conditional certification” stage is “judged at a very low level of generality and is viewed as a very lenient standard.”).

8

The paradox of this low standard, and in

particular courts’ refusal to even consider an

employer’s evidence of dissimilarity, rests with the

potential that courts grant a “plaintiff’s motion for

conditional certification despite already possessing

evidence which would require [them] to grant a

motion for decertification.” Green v. Atlas Senior

Living, LLC, 2022 WL 2007398, at *5 (S.D. Ga. June

6, 2022) (cleaned up).

More troublingly, “[t]he ease with which

plaintiffs have achieved first-stage certification in the

FLSA wage & hour context surely has contributed to

the number of [FLSA] filings.’” Laverenz v. Pioneer

Metal Finishing, LLC, 746 F. Supp. 3d 602, 615 (E.D.

Wis. 2024) (quoting Seyfarth Shaw LLP, 18th Annual

Workplace Class Action Report 9 (2022)).

Indeed, since Hoffman-La Roche, the number

of FLSA collective actions has exploded, more than

tripling between 2000 and 2009.6 The next decade

saw a spike in FLSA cases being filed in federal court

to approximately 8,200 per year, and today sits

around 6,040 each year—still far more than existed

annually between 1947 and 1988, the year before

Hoffman-La Roche changed the collective action

landscape.7

The high percentage of FLSA actions

conditionally certified has had various practical

6 See William C. Martucci and Jennifer K. Oldvader, Ad-

dressing the Wave of Dual-Filed FLSA and State law “Off-theClock” Litigation: Strategies for Opposing Certification and a

Proposal for Reform, 19 Kan. J.L. & Pub. Pol’y 433, 433 (2010).

7 See Seyfarth Shaw LLP, FLSA Litigation Metrics &

Trends (2024), https://tinyurl.com/4burtz47.

9

effects. First, Lusardi’s lenient standard has resulted

in the dissemination of notice in FLSA actions far

more than any other type of workplace claim.8 In

2021, for example, federal courts conditionally

certified 226 FLSA collective actions (out of 279 cases

where a motion for conditional certification was filed),

while they certified—and, thus, disseminated notice

in—only 13 discrimination class actions and eight

ERISA class actions in the same year.9

Second, conditional certification triggers

expensive litigation-related activities, such as

discovery of the names and addresses of the putative

collective members, notice to same, an opt-in period,

and discovery to ascertain whether the opt-in

plaintiffs are indeed similarly situated to the named

plaintiffs, which may range from requiring the opt-in

plaintiffs to answer written discovery to sitting for

depositions.10 “Only after these litigation-related

activities have been completed will the plaintiff seek

8 Seyfarth Shaw LLP, 18th Annual Workplace Class Action

Report 2 (2022), https://tinyurl.com/43jsu92e.

9 Id. at 9.

10 See, e.g., Abubakar v. City of Solano, 2008 WL 508911, at

*10 (E.D. Cal. Feb. 22, 2008) (individual discovery of approximately 160 opt-ins); Ingersoll v. Royal & Sunalliance USA, Inc.,

2006 WL 2091097 at *2 (W.D. Wash. July 25, 2006) (individualized discovery of all 34 opt-ins); Coldiron v. Pizza Hut, Inc., 2004

WL 2601180, at *5–7 (C.D. Cal. Oct. 25, 2004) (individual discovery of all 306 opt-in plaintiffs); Krueger v. New York Telephone Co., 163 F.R.D. 446 (S.D.N.Y. 1995) (permitting discovery

addressed to all 152 opt-in plaintiffs); Rosen v. Reckitt & Colman, Inc., 1994 WL 652534 (S.D.N.Y. 1994) (allowing individual

discovery of 49 opt-ins); Brooks v. Farm Fresh, Inc., 759 F. Supp.

1185, 1188 (E.D. Va. 1991) (allowing discovery of all 127 opt-ins);

Kaas v. Pratt & Whitney, 1991 WL 158943 (S.D. Fla. 1991) (authorizing individual discovery of all 100 opt-in plaintiffs).

10

final

certification

or

the

defendant

seek

decertification.” 7 Newberg and Rubenstein on Class

Actions § 23:38 (6th ed.).

Finally, because the grant of conditional

certification “exerts formidable settlement pressure”

on employers, Swales v. KLLM Transp. Servs., L.L.C.,

985 F.3d 430, 436 (5th Cir. 2021), only a small

percentage of conditionally certified collective actions

reach the decertification stage, with the vast majority

of such cases resulting in settlement. In 2021, for

example, of the 226 conditionally certified collective

actions, only 19 reached final certification decisions.

As such, “[w]hichever way a court rules on the

conditional certification motion, the decision will

likely be final.” 7 Newberg and Rubenstein on Class

Actions § 23:38 (6th ed.).

The widespread dissemination of notice of socalled conditional certification and resulting litigation

costs and settlement pressure has severely

undermined the Portal-to-Portal Act’s goal of

curtailing excessive FLSA litigation, all because of

the way lower courts have interpreted Hoffman-La

Roche. The “little guidance” provided by Hoffman-La

Roche regarding when notice is appropriate, see Clark

v. A&L Homecare & Training Ctr., LLC, 68 F.4th

1003, 1007 (6th Cir. 2023), has only aggravated that

state of affairs.

11

II.

THERE IS A SIGNIFICANT CIRCUIT

COURT AND DISTRICT COURT SPLIT

ON THE APPLICABLE STANDARD FOR

CONDITIONAL CERTIFICATION OF AN

FLSA ACTION.

As Petitioners note, there is a “pervasive circuit

split on a pure question of law whose ‘importance

cannot be overstated.’” (Pet. at 11-19.) And although

the split is oft-described as a “four-way circuit split,”

this omits some district courts’ adoption of a fifth

approach “by applying the standards of Rule 23 class

certification in FLSA collective actions.” Valte v.

United States, 155 Fed. Cl. 561, 568 (2021); see also

Shushan, 132 F.R.D. at 268.

“[C]ourts that apply [this] approach consider

‘numerosity,’

‘commonality,’

‘typicality,’

and

‘adequacy of representation’ to determine whether to

certify a collective action under the FLSA.” Skiba v.

Timothy, No. 4:20-CV-02656, 2023 WL 11915621, at

*2 (S.D. Tex. Mar. 21, 2023). No Circuit Court has

adopted

this

approach

because

conditional

certification does not result in a final appealable order

and thus decisions like Shushan normally evade

appellate review. (See Pet. at 33-34.) Even so, because

of Hoffman-La Roche, district courts are free to adopt,

or reject, the Rule 23 approach should they choose to

exercise

their

judge-made,

and

statutorily

unsupported, discretion.

Even within the same Circuit, courts apply

varying standards under Hoffman-La Roche.

Compare Valte, 155 Fed. Cl. at 568 (utilizing a singlestep process and noting that the lack of uniformity

has created “judge-made procedure unmoored from

12

the statute. . . and has led to confusion about the

terms and the doctrine.”) with Newson-Pace v. United

States, 177 Fed. Cl. 262, 270 (2025) (“The Court

appreciates the efficiency and appeal of a single-step

standard, but finds the two-step analysis more

appropriate for this case.”).

Without this Court’s intervention—and this

case offers an ideal vehicle for addressing the

questions presented—this patchwork of standards

will remain unresolved.

III.

THE MULTITUDE OF NOTICE STANDARDS ADOPTED SINCE HOFFMAN-LA

ROCHE AND THE LITIGATION PROLIFERATION THEY HAVE SPAWNED UNNECESSARILY

BURDENS

HUMAN

RESOURCE

PROFESSIONALS

AND

MULTI-STATE ENTERPRISES.

Resolving the split Hoffman-La Roche created

(or eliminating district courts’ ability to solicit the

participation of third-parties in putative collective

actions)11 is important, not only for the reasons Eli

Lilly’s petition outlines. See Sup. Ct. R. 10(a).

11 Both this case and Hoffman-La Roche involved the ADEA,

which incorporates 216(b)’s collective action mechanism, not the

FLSA. That only amplifies the importance of the issues Eli

Lilly’s petition highlights. However, many tens (hundreds?) of

thousands of FLSA cases have been filed since Hoffman-La

Roche (not 216(b) or any actual statutory text) gave district

courts notice authority, that number only increases when ADEA

cases are included. The substantive differences between the two

claims likewise elevate the criticality of the issues Eli Lilly presents because ADEA claims require human resources professionals to track and marshal very different types of business records

and potential testifying employees than do FLSA cases.

13

Consistency in notice regimes matters for those

reasons, but also because the current inconsistency of

standards generates confusion for employers and

employees, not to mention burdensome compliance

difficulties.

Granting Eli Lilly’s petition and either

overturning Hoffman-La Roche, or creating a single

notice standard nationwide, would install in those

problems’ stead a clear, consistent, and complianceoriented collective action mechanism that would

benefit employers, employees, and courts (not to

mention promote the remedial purpose of statutes

like the FLSA).

A. Confusion for Employers and

Employees

Reigns

When

Inconsistent

Legal

Standards

Proliferate.

Imagine a company that owns and operates a

business with retail locations in Tennessee, Georgia,

Mississippi, and Illinois that employ thousands of

people. Like many multi-state enterprises, the

business’s various divisions share administrative

functions like legal, tax, and human resources.

Imagine, too, that the company is sued in each of the

four states in which you operate, alleging FLSA

violations on a collective basis.

The case in Georgia requires the company’s HR

department to create out of whole cloth a notice list of

current and former employees—a document that did

not previously exist, and one that some companies

might have difficulty creating depending on the

sophistication of their HRIS systems—almost

14

immediately because district courts in the Eleventh

Circuit largely continue to embrace Lusardi’s

leniency.

The cases in Tennessee and Mississippi, and

the application of Clark and Swales, respectively,

force HR to immediately begin coordinating the

collection of relevant documents so outside counsel

can try and prove that there’s no strong likelihood the

similarity that 216(b) requires exists (Tennessee), or

that a preponderance of the evidence shows no

similarity (Mississippi). No one really knows whether

HR should collect more and different types of

materials in Mississippi than Tennessee.

Meanwhile, in Illinois, the company’s HR

professionals have no clear guidance because

Richards’ “material factual dispute” standard is so

unlike any of the three other, older standards, and so

amorphous, that compliance becomes an experiment,

with potentially devastating consequences.

The above is an extreme example, to be sure,

but one that occurs with some regularity for larger

employers targeted by sophisticated wage and hour

plaintiff’s counsel. And it is one that illustrates well

the confusion the current state of affairs generates for

HR professionals.

That confusion benefits no one. Certainly it

impairs HR departments’ ability to provide clear

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guidance to employees.12 But it also inhibits their

ability to operate effectively by consuming HR

resources that would otherwise be spent on assisting

employees navigate applying for a leave of absence, or

advising management on staffing challenges in a

particular location, for instance. Instead of focusing

on those normal functions, HR departments must also

juggle the multiplicity of notice standards and

collective actions foisted upon them by Hoffman-La

Roche’s “Jesus take the [a-textual] wheel” approach to

collective actions.

B. Inconsistent

Collective

Action

Notice Standards Unnecessarily

Burden HR Professionals.

Addressing either of Eli Lilly’s Petition’s

questions presented—and either reversing HoffmanLa Roche, or adopting a unified standard for collective

action notice—would materially reduce the

unnecessary burdens the last 36 years of collective

action litigation has created for SHRM’s members.

As noted, those burdens include supporting

businesses’ defenses against ADEA or FLSA claims

by collecting and explaining a variety of business

12 In this hypothetical, today’s applesaucian assortment of

collective action notice standards could lead to Georgia employees receiving a letter that most laypeople think looks like a federal court document, while at the very same time employees

merely 30 miles north receive nothing. The questions from Tennessee employees upon learning about the Georgia invitation to

joint a lawsuit would be (a) understandable (why are our colleagues getting these and we’re not?), and (b) difficult to answer

by HR professionals with much more than a shoulder shrug

emoji.

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documents to plaintiff’s counsel in depositions, and

courts in declarations and trial testimony; engaging

with confused employees who may have received

notice of a lawsuit or outreach from plaintiff’s counsel;

and attempting to create policies and processes to

handle the multitude of notice standards applied

across the geographies in which multi-state

enterprises operate, among others.

Hoffman-La Roche and the five collective

action notice approaches it has generated (so far)

burden HR professionals not just because of the

volume of work they generate because of their

inherently confusing and divergent characteristics.

Employees suffer too because of the deluge of

aggregate litigation that flooded courts, employers,

and their HR departments after this Court issued

that decision and created a wild west of lower court

discretion.

It goes without saying that more and bigger

lawsuits—a result directly at odds with Congress’s

intent in enacting the Portal-to-Portal Act—increase

legal costs, clog dockets, and, most importantly for

SHRM’s members, increase the amount of work HR

professionals must shoulder. Instead of assisting

employees, counseling management, and ensuring

compliance with workplace laws, HR professionals,

because of Hoffman-La Roche and its downstream

effects, must now spend significant amounts of time

managing the consequences of, and assisting legal

teams with litigation.

The current state of play benefits no one.

Employees may be confused or unsure how to access

the remedies guaranteed by law if a violation occurs.

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Employers, meanwhile, face uncertainty about how to

properly defend against alleged wrongdoing due to

the unclear and inconsistent standards.

These deleterious burdens need not, and

should not, exist. Granting certiorari in this case and

returning to 216(b)’s text, which says nothing about

judicially approved notice to non-parties in collective

actions, or adopting one consistent notice standard

across the country, would mitigate the confusion and

burdensome

consequences

HR

professionals

experience today.

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CONCLUSION

For the foregoing reasons, this Court should

grant Eli Lilly’s petition for certiorari.

Respectfully submitted,

Date: November 17, 2025 Noah Finkel

Counsel of Record

Richard Lapp

SEYFARTH SHAW LLP

233 S. Wacker Dr.,

Suite 8000

Chicago, IL 60606

(312) 460-5913

nfinkel@seyfarth.com

Lennon Haas

Ralph Culpepper III

SEYFARTH SHAW LLP

1075 Peachtree Street

Atlanta, GA 30309

Kyle Winnick

SEYFARTH SHAW LLP

620 Eighth Avenue

New York, NY 10018

Counsel for Amicus Curiae

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