It’s been almost two years since a divided panel of the Eleventh Circuit held that incentive payments (a/k/a service awards) in class action settlements are unlawful, a startling and controversial result given the ubiquity of such provisions and the majority’s reliance on 19th century Supreme Court precedents that had nothing to do with class actions. Since then, no other circuits have followed the Eleventh Circuit’s approach, and some have continued to uphold the previously uncontroversial terms.
In this blog, I reported on the surprising decision, and on one of the subsequent federal appellate decisions that went the other way, here and here. Personally, I had expected the court to accept en banc review and reverse the panel’s outlier of a decision. Yet the court surprised me a second time by denying en banc review, thereby allowing the decision to stand. While there is not much to see in the denial order, the strong dissenting opinion