Berk v. Choy · ¶26

Resisting this conclusion, defendants cite Cohen v. Benef cial Industrial Loan Corp., 337 U. S. 541 (1949), for the broad proposition that all state “preconditions to proceeding” are consistent with the Federal Rules. Brief for Respondent Beebe 26–27; see Brief for Respondent Choy 20– 21. They substantially overread Cohen. There, a state law rendered an unsuccessful plaintiff in a shareholder derivative suit liable for all the defendant's expenses, including attorney's fees, and as security for that potential liability, required the plaintiff to post a bond before proceeding with the action. 337 U. S., at 543. The plaintiffs argued that the bond requirement was displaced by then-Rule 23, which governed shareholder derivative suits in federal court. Id., at 556. Cohen held that there was no confict because the state law and Rule 23 addressed different issues: The state law created a…

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