WLF Urges Supreme Court to Stop Federal Judges from “Plaintiff Shopping”

“The Constitution doesn’t allow federal courts to recruit for one side in a case. The Court needs to remove this unlawful and unconstitutional thumb on the scale for the plaintiffs’ bar.”

—Zac Morgan, WLF Senior Litigation Counsel

Click here to read WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today asked the United States Supreme Court to reverse a 40-year-old precedent that requires federal judges to take sides by recruiting possible co-plaintiffs in collective action cases.

The case arises from a lawsuit under the Age Discrimination in Employment Act (ADEA), a companion statute to the Fair Labor Standards Act (FLSA). Under both the ADEA and FLSA, plaintiffs can sue for relief in a so-called collective action, a case on their behalf and those “similarly situated.” In 1989, over a vigorous dissent by Justice Antonin Scalia, the Supreme Court ruled that this statutory scheme requires federal courts to actively try to recruit additional plaintiffs for these cases. In practice, this means that courts often “certify” a group of potential plaintiffs and send out notice letters—massively increasing the settlement value of a case and putting a thumb on the scale against defendants.

WLF’s brief urges the Court to grant review so it can reverse that precedent, a case called Hoffmann-La Roche v. Sperling. The brief argues that this practice is unconstitutional for three reasons. First, by involving courts in the recruitment of claims not before them, it violates Article III’s limits on the judicial power itself. Second, it violates the Fifth Amendment due process rights of defendants by appearing to pre-judge the outcome in favor of the plaintiffs. Third, there’s no statutory basis for the practice whatsoever, so the Court’s decision in Hoffmann-La Roche was unconstitutional judicial lawmaking.