On the Lawfulness of Awards to Class Representatives

Authors

Benjamin Gould, Keller Rohrback L.L.P.

Volume

2023

First Page

1

Last Page

23

Publication Date

2023

Document Type

Essay

Abstract

When class actions are settled or the class prevails on the merits, successful class representatives are often net losers: their individual recovery does not cover the opportunity costs and other losses they have incurred in representing the class. For that reason among others, they frequently receive an award on top of their relief as class members. The federal courts of appeals had unanimously approved these awards until recently, when the Eleventh Circuit relied on two nineteenth-century cases to hold that they are always unlawful. That decision is now the subject of a cert petition. The Eleventh Circuit got it wrong. Class settlements provide independent authority for awards to class representatives, despite otherwise applicable constraints on courts’ remedial authority. In relying on nineteenth-century case law, moreover, the court drew an ill-conceived analogy between a class representative and a creditor in a railroad reorganization. Worse, it ignored a more convincing analogy suggested by the very case law on which it relied: an analogy between class representatives and trustees under which awards to class representatives are lawful.

Keywords

Remedies, Rent, Judiciary Branch, Class Actions, Legal Practice and Procedure, Discrimination, Social Group Issues, Employment, Employment Practice and the Law, Plaintiffs

Recommended Citation

Benjamin Gould, On the Lawfulness of Awards to Class Representatives, 2023 Cardozo L. Rev. De-Novo 1 (2023).
Available at: https://larc.cardozo.yu.edu/de-novo/94