February 5, 2025
Since 2005 and passage of the Class Action Fairness Act, scholars have bemoaned the ongoing attack on class action procedures. Much of this work has focused on judicial reinterpretations of Federal Rule of Civil Procedure 23. Plaintiffs face new prerequisites to aggregating their claims such as: (1) stricter pleading standards; (2) the judicially created “ascertainability requirement”; and (3) earlier and more frequent Daubert motions, just to name a few. These increased procedural hurdles are already hampering private enforcement efforts. In 2022, the Eleventh Circuit lobbed a new challenge when it banned incentive awards for class representatives in Johnson v. NPAS Solutions, LLC. Alexander J. Noronha explores the decision—warts and all—in his student note (On Behalf of All Others Similarly Situated: Class Representatives & Equitable Compensation, 122 Mich. L. Rev. 733 (2024)).
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Noronha argues that the Eleventh Circuit “overlooked crucial historical and legal context.” This dismantling of the Eleventh Circuit’s rationale represents the article’s biggest contribution. First, Greenough is the product of an anachronistic form of litigation, too distinguishable from the modern class action to warrant barring incentive awards. Relatedly, Greenough was an “equity receivership” suit, a form of litigation once commonplace but now obsolete. Thus, the decision proves a faulty foundation from which to render a blanket prohibition against class action incentive awards. As Noronha points out, equity receiverships are a closer analogue to Chapter 11 reorganizations than class actions.
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By debunking the primary authority on which the Eleventh Circuit relied, Noronha provides other circuits ample justification to reach a contrary conclusion. Nonetheless, Noronha proposes additional solutions should Johnson spread. One novel idea reconceptualizes incentive awards as costs, moving them squarely within the purview of costs and fees recoverable under Federal Rule of Civil Procedure 54(d). Unlike incentive awards, which lack statutory grounding, Rule 54 affords courts clear authority to permit discretionary cost awards to class representatives. Although attorneys have yet to rely on this rule to request incentive awards, Noronha convincingly argues how this approach is both historically and legally defensible.
On Behalf of All Others reminds us of the value of student notes in legal scholarship. Noronha’s article offers new insights, particularly regarding the history of incentive awards—limited as that history may be. When well done, as here, a note can illuminate corners of procedure heretofore