It remains to be seen if this is the last word.
In a surprising break with other circuits, and contrary to decades of accepted precedent within the 11th Circuit and elsewhere, the 11th Circuit has definitively ruled that incentive awards for class action plaintiffs are no longer permissible.
Nearly two years ago, the 11h Circuit sent shockwaves across the class action bar when it reversed a district court award of $6,000 to a representative plaintiff as part of a settled TCPA class action. The majority, relying on a pair of U.S. Supreme Court decisions from the 1880s that predate the modern class action device, held that incentive awards are analogous to “salary” or “payment for personal services” and are thus barred and can be authorized only if the U.S. Supreme Court reverses this precedent, Rule 23 is amended, or Congress enacts legislation authorizing these awards.
Now, nearly two years later and after petitions for en banc consideration were filed and numerous amici briefs lodged urging reversal or clarification (including one from the professor who wrote Newburg on Class Actions), the 11th Circuit has finally and flatly denied the petition for en banc review. The denial includes a blistering dissent authored by Judge Pryor, joined by Judges Wilson, Jordan, and Rosenbaum, noting that “by holding that incentive awards are unlawful per se, the majority opinion broke with decisions from this and every other circuit allowing these awards when properly approved under the strictures of Rule 23. Indeed, the majority opinion adopted a position that had never been embraced by any court.”
Given that the original decision was split, and the en banc denial strongly contested even within the 11th Circuit, it remains to be seen if this is the last word for class action plaintiff incentive awards in the 11th Circuit. Of course, we will continue to monitor further developments on incentive awards in class actions as 2022 progresses.
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