As the Supreme Court prepares its docket for the New Year, Richards v. Eli Lilly stands out as a case with the potential to fundamentally alter the landscape of wage-and-hour collective actions under the Fair Labor Standards Act (FLSA).[1] At issue is a deceptively simple but deeply consequential question:  What must a plaintiff show before a federal court may authorize notice to other employees in a collective action under FLSA § 216(b)?

The Court is scheduled to consider the employer’s Petition at conference this Friday.  A grant of certiorari could signal its readiness to address a three-way circuit split that has only deepened in recent years, and to clarify a procedural regime that, for decades, has evolved largely through lower-court innovation unmoored to the FLSA’s text and without any Supreme Court guidance.

This alert summarizes the Supreme Court filings and assesses why the Court’s odds of taking up the case are higher than in an average cert petition.

Why Richards Is on the Supreme Court’s Radar

The FLSA’s collective-action mechanism is unique in federal law.  Section 216(b) allows employees to sue on behalf of others who are “similarly situated,” but—unlike Rule 23 class actions—requires affirmative opt-in.  The statute is silent on when and how courts should determine similarity, what evidentiary showing is required, and how much scrutiny should occur before court-authorized notice issues.

This statutory silence has produced a fractured legal landscape.  That’s why the question presented in Richards is procedural but pivotal: What evidentiary standard governs a district court’s decision to authorize notice to putative collective members under § 216(b)?  Lower courts have adopted at least four divergent approaches:

1. Lenient “modest showing” standard traditionally derived from Lusardi v. Xerox Corp. (D.N.J. 1987),
2. Fifth Circuit’s preponderance-of-the-evidence standard in Swales v. KLLM Transport Services (2021),
3. Sixth Circuit’s “strong likelihood” standard in Clark v. A&L Homecare and Training Center, LLC (2023),
4. Seventh Circuit’s “material factual dispute” standard in Richards v. Eli Lilly (2025).

These approaches differ not only in name but in substance.  Some require meaningful discovery and early adjudication of contested facts, while others allow notice on largely untested allegations in a rubber-stamp approach to notice.  The inconsistency affects litigation risk, discovery burdens, and settlement incentives for employers nationwide.[2]

Richards arrives at a moment when the tensions between the circuits’ varying approaches are impossible to ignore, and the Supreme Court’s intervention could bring long-overdue clarity.  

The FLSA Issues Teed Up for Review

1. Is Court-Authorized Notice a Meaningful Judicial Act—or a Ministerial Step?

Eli Lilly’s petition argues that authorizing notice is not a neutral or inconsequential act.  Once a trial court authorizes notice to putative members of the collective, wage and hour lawsuits often expand dramatically, discovery costs soar, and settlement pressure intensifies.  The Petition challenges the Lusardi premise that notice can be issued on minimal evidence because it is “preliminary,” and urges the Court to treat notice as a meaningful judicial act requiring rigorous analysis.

2. What Does “Similarly Situated” Require—And When?

The circuits disagree not only on how much evidence is required, but also on when similarity must be evaluated:

• Fifth Circuit: Requires courts to resolve similarity before notice by a preponderance of the evidence.
• Sixth Circuit: Demands a “strong likelihood” of similarity.
• Seventh Circuit: Adopts a “material factual dispute” standard, allowing more discretion.

Each standard reflects a fundamentally different view of § 216(b): Is similarity a threshold gatekeeping requirement, or can it be postponed until after notice has already reshaped the litigation?

3. How Much Discretion Should District Courts Have?

Richards’ opposition brief emphasizes district court discretion and argues that variability is a feature, not a flaw.  Eli Lilly and its amici, by contrast, frame unfettered discretion as the problem—arguing that without a uniform rule, outcomes depend more on geography than law.     

The Supreme Court Filings: A National Debate

Eli Lilly’s Petition for Certiorari frames Richards as an opportunity to address foundational questions about the role of courts in FLSA collective actions.  The employer argues for clarifying the implications that arise from Hoffmann-La Roche or, at minimum, requiring rigorous proof of similarity before notice.  In response, Richards defends the Seventh Circuit’s “middle-ground” approach as reasonable and consistent with congressional intent.

The parties to the case are not the only ones who have voiced their arguments in favor and in opposition to certiorari.  One of the most significant developments at the cert-stage is the sheer number and nature of the amicus briefs supporting review.  Six separate amicus briefs have been filed in support of the petition.  These briefs come from a diverse array of stakeholders including major business trade associations, employer groups, and public policy organizations across the country. 

Among the six amicus briefs supporting Eli Lilly, the brief filed by the State of Ohio—joined by 19 other states and the Arizona Legislature—stands out.  The 20 states made several important points in favor of granting Eli Lilly’s Petition:

• Sovereign and Fiscal Impact: The brief emphasizes that states, as large employers, are increasingly targeted by FLSA collective actions.  The amici argue that the current regime—where courts can authorize notice to non-parties based on minimal evidence—imposes “steep costs” on state treasuries and undermines states’ ability to govern their workforces.
• Constitutional Concerns: The brief contends that court-facilitated notice to non-parties exceeds the traditional bounds of judicial power under Article III, as it invites individuals who are not yet parties into litigation, contrary to the adversarial model.
• Statutory Silence: The amici highlight that neither the FLSA nor the ADEA authorizes courts to recruit new plaintiffs, and that the judicially created notice regime is untethered from statutory text or historical practice.
• Patchwork Standards and Forum-shopping: The brief underscores the practical problems caused by the circuit split, noting that the lack of a uniform standard encourages forum-shopping and creates unpredictability for employers nationwide.

The amici urge the Court to adopt a clear, rigorous standard for notice that protects both public and private employers from the burdens of overbroad collective actions.

Why the Certiorari Posture Is Unusually Strong

Estimating certiorari odds is inherently speculative, but several predictors of Supreme Court review that serve as useful guideposts are present here:

• Deep, Acknowledged Circuit Split: At least three courts of appeals have adopted distinct and incompatible standards, and the Seventh Circuit expressly declined to follow either of the others.  The result is a patchwork regime that virtually invites forum-shopping.
• Significant Amicus Engagement: Six amicus briefs at the cert stage—particularly in a procedural employment case—signal broad national importance.  The Ohio-led brief, joined by South Carolina and other states, highlights the issue’s impact on public sector employers.
• Squarely Presented Legal Question: The opposition brief defends the Seventh Circuit’s rule on the merits, confirming that the legal question is squarely presented and vigorously contested.

Beyond the merits presented by the Petition, Richards aligns with the Court’s broader institutional priorities.  For example, the Court has shown increasing interest in ensuring that procedural shortcuts do not effectively determine case outcomes.  The Court has also reinforced the importance of text, structure, and historical practice in interpreting the role and authority of the courts, a factor that weighs in favor of a narrow construction of the collective-action mechanism of § 216.  And if those fail, the Court has shown an interest in creating uniform federal procedure to limit forum-shopping incentivized by the current three-way split, which undermines predictability for employers and employees alike.

What to Watch Going Forward

If the Court grants certiorari, Richards could become the most significant FLSA procedural decision since Hoffmann-La Roche.  The Court could:

• Clarify Hoffmann-La Roche: Eliminating court-facilitated notice would fundamentally reshape FLSA collective actions.
• Adopt a Uniform, Heightened Standard: Requiring plaintiffs to prove, by a preponderance of the evidence (or a “strong likelihood”), that others are similarly situated before notice issues.
• Endorse the Seventh Circuit’s Middle-Ground Approach: Allowing for more judicial discretion but requiring consideration of both sides’ evidence.
• Maintain the Status Quo: Leaving the current forum-dependent landscape—and its attendant risks—in place.

For employers, the stakes are high: A Supreme Court decision could recalibrate early-stage leverage in collective actions, reshape notice practices nationwide, and provide long-overdue clarity on the meaning of “similarly situated” under § 216(b).  The case is worth close attention not because it guarantees a particular outcome, but because it presents the Court with a clean vehicle to impose order on an increasingly fractured area of wage-and-hour law.

Conclusion

Richards v. Eli Lilly is not just another employment dispute—it is a strong candidate for review.  The combination of a three-way circuit split, significant amicus engagement, and a fundamental disagreement over how courts should administer a core federal statute makes this case one to watch closely as the Court shapes its 2026 docket.

If the Court is looking for an opportunity to bring coherence to FLSA collective actions, Richards is it.

Who to Contact?

Matt Abee, Debbie Durban, and Morgan B. Thompson with the Nelson Mullins Employment and Labor Practice Group are monitoring the impacts this Cert. Petition will have on wage and hour practice across the country.  Please reach out to Nelson Mullins for more information about how you may be able to seek to address requests for conditional certification in collective actions under the Fair Labor Standards Act.  

These materials have been prepared for informational purposes only and are not legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  As portions of this alert may have been created with the benefit of artificial intelligence or large-language models, Internet subscribers and online readers should not act upon this information without seeking professional counsel.