1. On Behalf of All Others Similarly Situated: Class Representation & Equitable Compensation.
- Author
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Noronha, Alexander J.
- Subjects
Equitable remedies -- Laws, regulations and rules ,Class actions (Civil procedure) -- Laws, regulations and rules ,Law and economics -- Analysis ,Citizen suits (Civil procedure) -- Laws, regulations and rules ,Restitution -- Laws, regulations and rules ,Johnson v. NPAS Solutions L.L.C. (975 F.3d 1244 (11th Cir. 2020)) ,Government regulation - Abstract
Table of Contents Introduction I. Incentive Awards: A Half Century of Ubiquity A. Abbreviated History of Class Actions and Incentive Awards 1. Evolution of the Modern Class Action 2. Introduction [...], Class actions require class representation. In class actions, plaintiffs litigate not only on their own behalf but "on behalf of all others similarly situated." For almost fifty years, federal courts have routinely exercised their inherent equitable authority to award modest compensation to deserving class representatives who help recover common funds benefiting the plaintiff class. These discretionary "incentive awards" are generally intended to compensate class representatives for shouldering certain costs and risks--which are not borne by absent class members--during the pendency of class litigation. The ubiquity of permitting class action incentive awards ended in 2020. In an extraordinary ruling, the Eleventh Circuit held that incentive awards are per se unlawful under late nineteenth-century Supreme Court precedent. This holding has ignited a new controversy in the federal courts with far-reaching implications for the future of class actions. Much of the existing legal scholarship on incentive awards analyzes policy rationales, quantitative trends, and legal standards involving the questions of "When?" and "How much?" to compensate class representatives. Only recently have scholars turned their attention to the more foundational question of whether federal courts have a sound basis to allocate incentive awards to class representatives under any circumstances. This Note weighs in on that debate by revisiting the Eleventh Circuit's recent decision to categorically ban incentive awards. More importantly, this Note looks to the future and confronts the reality that other federal circuit courts or the Supreme Court could eventually adopt the Eleventh Circuit's position on incentive awards. Facing that unsettling prospect, this Note presents three proposals--one for policymakers and two for plaintiffside class action practitioners--that could save the equitable tradition of compensating class representatives and reinforce the viability of the class action device itself.
- Published
- 2024
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