11th Circ. Ban on Service Awards May Inhibit Class Actions

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It is common in class action practice, after years of litigation, for class counsel to seek, and for courts to award, an incentive or service award to the individuals or businesses who stepped forward to represent the class and make the case possible. But the availability of service awards has fallen under a dark cloud — at least in one federal circuit — thanks to the 2020 decision in Johnson v. NPAS Solutions. In Johnson, the 11th Circuit held that binding Supreme Court precedent from two decisions from the 1880s—long predating Federal Rule of Civil Procedure 23—prohibited service awards to class representatives, becoming the first federal appellate court to do so. This article highlights that this dispute—whether in intent or effect—amounts to little more than the latest attack on Rule 23 and the class action device. The article also demonstrates why courts should, if anything, approve larger service awards, which can act as incentives to compensate class representatives for the risks they take on and the harassment they endure without any guarantee of recovery.