In Johnson v. NPAS Solutions, LLC, 2020 U.S. App. LEXIS 29682, 2020 WL 5553312 (11th Cir. Sept. 17, 2020), a panel of the Eleventh Circuit Court of Appeals ruled 2-1 that incentive awards to class representatives are impermissible.

A petition for rehearing en banc has been filed by the plaintiff.  The plaintiff argues that the Supreme Court decisions from the 1880’s relied upon by the Eleventh Circuit’s 2-1 majority are inapposite; that the majority opinion squarely conflicts with a Second Circuit decision last year rejecting the same arguments accepted by the majority; and that the per se disallowance of incentive awards will mean that far fewer people will be willing to step forward to serve as class representatives, regardless of how meritorious the claims may be.  Six Amicus briefs have been filed in support of the rehearing petition.

In the wake of the Eleventh Circuit decision, several district courts in the Eleventh Circuit have refused to allow incentive awards to class representatives, as those courts are bound by the Johnson ruling.  See Jairam v. Colourpop Cosmetics, 2020 U.S. Dist. LEXIS 181656 (S.D. Fla. Oct. 1, 2020); Metzler v. Med. Mgmt. Intl., 2020 U.S. Dist. LEXIS 187478 (M.D. Fla. Oct. 9, 2020); Kuhr v. Mayo Clinic Jacksonville, 2020 U.S. Dist. LEXIS 184994 (M.D. Fla. Oct. 6, 2020).   However, district courts in New Jersey and the Southern District of New York have expressly refused to follow Johnson.  See Somogyi v. Freedom Mortg. Corp., 2020 U.S. Dist. LEXIS 194035 (D. N.J. Oct. 20, 2020); Hart v. BHH LLC, 2020 U.S. Dist. LEXIS 173634 (S.D. N.Y. Sept. 22, 2020).

We will update this blog once the Eleventh Circuit acts on the rehearing petition.