Circuit Split Deepens: Are Named Plaintiffs Entitled To Incentive Awards?

• Jurisdiction: United States,Federal
• Author: Gayle I. Jenkins, Peter T. McKeon and Nathan R. Gilbert
• Law Firm: Winston & Strawn LLP
• Published date: 27 January 2023

Last month, the First Circuit held that incentive awards for named plaintiffs are permissible under Rule 23, increasing the odds this question will be considered by the Supreme Court. See Murray v. Grocery Delivery E-Servs. USA Inc., 55 F.4th 340, 353-54 (1st Cir. 2022). The First Circuit in reaching its holding joined with the Ninth Circuit (In re Apple Inc. Device Performance Litig., 50 F.4th 769, 786 (9th Cir. 2022)) in an emerging circuit split with the Eleventh Circuit. The Eleventh Circuit'relying on case law from the 1880's'holds that incentive awards for named plaintiffs are prohibited by Supreme Court precedent. Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1255 (11th Cir. 2020) (citing Trustees v. Greenough, 105 U.S. 527 (1882) and Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885)).

If incentive awards for class action plaintiffs...