A Sleeper Supreme Court Case Opens Door to More Frivolous Suits

The Supreme Court unanimously decided a civil procedure case in January with little fanfare or notice, even by the bar. But Berk v. Choy is a sleeper case that could have a significant impact.

Berk may scramble the calculus for defendants weighing whether to remove from state to federal court, change the shape of tort reform in state legislatures by limiting avenues to weed out frivolous cases, and signal a broader trend in how the Supreme Court manages the respective roles of state and federal courts.

Berk addresses the rules of the road for litigating state-law claims in federal court. Since the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins, the rule is that state substantive law and federal procedural law apply. Berk involved a question about the sometimes-elusive line between substance and procedure.

Under Delaware law—as is the case in a number of states—a plaintiff in a medical-malpractice suit must file an “affidavit of merit” along with the complaint, typically a sworn statement from a medical professional supporting the claim. Requirements like Delaware’s are efforts at tort reform intended to create early off-ramps for defendants and make it more difficult for plaintiffs to secure discovery and the resulting settlement leverage.

In Berk, the Supreme Court unanimously held that plaintiffs need not follow Delaware’s “affidavit of merit” pleading requirement when bringing malpractice claims in federal court. As Justice Amy Coney Barrett’s opinion for the court concluded, Delaware’s affidavit-of-merit requirement conflicts with Rule 8 of the Federal Rules of Civil Procedure, which requires only that a complaint give a “short and plain statement” of the claim and thus prevents states from requiring anything more at the pleading stage in federal court. (Justice Ketanji Brown Jackson didn’t join Barrett’s opinion, but reached the same result under different reasoning.)

All of this may seem quite technical. But the court’s reasoning is likely to have significant implications well beyond medical malpractice suits.

Most directly, a number of states impose similar affidavit-of-merit requirements for professional liability claims against licensed practitioners in other fields, including lawyers, engineers, architects, accountants, and beyond. Any effort to apply such requirements in federal court is unlikely to survive Berk, and we can expect to see a raft of challenges from plaintiffs to the application of those requirements.

Moving to a different context, many states have “anti-SLAPP” statutes that impose heightened pleading requirements, permit early dismissal, and postpone discovery when plaintiffs seek to misuse the court system to burden free speech.

There is currently a split among the federal courts of appeals over whether certain anti-SLAPP requirements apply in federal court. Berk suggests that the answer is no. However, states’ anti-SLAPP laws work differently, and not all of them may fall victim to Berk‘s rule.

These are far from the only examples of “pleading-plus” requirements states have imposed. Some states impose heightened pleading requirements on plaintiffs seeking punitive damages. And, in the realm of shareholder litigation, state-law requirements that plaintiffs plead “demandfutility” (i.e. that making a pre-suit demand on the board of directors would be futile) are extremely significant. (While Rule 23.1 of the Federal Rules imposes a similar requirement, federal courts have often relied on state-law standards and on the state-court cases fleshing them out.)

Berk raises questions about whether these laws can be applied in federal court and suggests that many of them cannot. At the very least, Berk widens the aperture for plaintiffs to challenge state-law pleading requirements in federal court.

There are several important takeaways from this shift.

First, Berk may scramble the usual forum-selection calculus for both plaintiffs and defendants. Where state legislatures have crafted pleading requirements that are more stringent than Rule 8 would require, state courts may prove attractive for diverse defendants. Of course, defendants may see other benefits from removing to a federal forum.

At a minimum, Berk suggests that we may see an uptick in plaintiffs filing certain types of claims in federal court where there is a basis for jurisdiction. (This is a trend that will only accelerate as AI makes it cheaper and easier for plaintiffs to file suit.) And defendants considering removal of lawsuits filed against them in state court may have a new reason for hesitation.

Second, businesses and policymakers interested in tort reform should think carefully about the possibility that wins in state legislatures may be defused by plaintiffs filing suit in federal court. Instead of focusing on state-law pleading requirements, reformers may be better off seeking substantive tort reform. This comes at a cost, as the very purpose of heightened pleading requirements is to nip meritless suits in the bud without engaging in costly and time-consuming proceedings to litigate the merits. In light of this, reformers may also wish to consider parallel efforts aimed at the Federal Rules themselves.

Third, Berk counsels close attention to the Supreme Court’s efforts to mediate the boundaries between the state and federal courts. In recent years, the court has decided a surprisingly large number of cases addressing the mechanics of removal from state to federal court and of remand in the other direction. In tandem, the court has issued rulings expanding personal jurisdiction in ways that affect where businesses can be sued.

For repeat litigants who often find themselves in both federal and state court, this is one area to watch closely. While these cases may nominally address only issues of procedure, their substantive impact can be significant.

The case is Berk v. Choy, U.S., No. 24-440, 1/20/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Robert Niles-Weed is co-head of Weil’s Appeals and Strategic Counseling practice, focusing on various commercial disputes at all phases of trial court litigation, as well as appeals in state and federal courts, including the US Supreme Court.

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