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2023 Cardozo L. Rev. De-Novo 1 (2023)

handle is hein.journals/denovo2023 and id is 1 raw text is: CARDOZO LAW REVIEW de novo ON THE LAWFULNESS OF AWARDS TO CLASS REPRESENTATIVES Benjamin Gouldt 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. 1 T Partner, Keller Rohrback, L.L.P., Seattle, Washington; J.D., Yale Law School. The views expressed here are my own, and not those of Keller Rohrback or any of its clients. Thanks to Adele Daniel for several helpful discussions, to Dan Mensher for his useful suggestions, and to Sharon Shaji and Eli Shahar for their close editorial attention and good judgment. All errors are mine.