Amy Brown Doolittle (from left), Petrina Hall McDaniel and Dara Mann of Squire Patton Boggs. Courtesy photos The Unknown Future of Class Representative Awards
It remains unclear whether the Eleventh Circuit's minority position will gain momentum or whether the Supreme Court ultimately will weigh in on the issue. For now, it is important that parties settling class actions in the Eleventh Circuit are aware they cannot provide incentive awards as part of the settlement, and those outside of the Eleventh should draft their settlement agreements to withstand possible objections to such awards.
July 18, 2023 at 02:00 PM
6 minute read
Commentary
Almost three years ago, the U.S. Court of Appeals for the Eleventh Circuit rocked the class action world with its decision in Johnson v. NPAS Solutions, LLC, finding that class representative awards are barred under 140-year-old Supreme Court precedent. To the surprise of many, the Eleventh Circuit denied the petition for rehearing en banc in 2022, and in April the United States Supreme Court denied certiorari, despite a developing circuit split.
Currently, the Eleventh Circuit is the only federal court of appeal to hold such awards categorically prohibited. However, a Second Circuit panel recently noted that, if it were not bound by two prior Second Circuit decisions upholding class representative awards, it would agree with the Eleventh Circuit. The Department of Justice, relying in part on Johnson, also recently expressed skepticism about such awards.
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