Kara Bowes v. Christina Melito, et al.

This Court’s longstanding precedent holds that representative plaintiffs whose litigation creates a “common fund” benefiting a larger class may recover from the fund their reasonable litigation expenses (including attorney’s fees) but that any payment compensating the named plaintiffs for their own “personal services” is both “decidedly objectionable” and “illegally made.” Trustees v. Greenough, 105 U.S. 527, 537-38 (1882). A named plaintiff’s “claim to be compensated, out of the fund ... for his personal services” has been “rejected as unsupported by reason or authority.” Central R. & Banking Co. v. Pettus, 113 U.S. 116, 122 (1885). Lower courts long honored this Court’s considered precedent on this point. Lately, though, lower courts have effectively done away with this Court’s rule by freely granting “incentive awards” to representative plaintiffs, and this Court’s recent dictum in China Agritech, Inc. v. Resh, U.S., 138 S.Ct. 1800, 1811 n.7 (2019), seems to acquiesce in the lower courts’ abrogation of its own precedent by stating: “The class representative might receive a share of class recovery above and beyond her individual claim. See, e.g., Cook v. Niedert, 142 F.3d 1004, 1016 (C.A.7 1998) (affirming class representative’s $25,000 incentive award).” The question presented is: Do the holdings of Greenough and Pettus, which prohibit payments in common-fund cases to compensate representative plaintiffs for their service to the class, retain precedential force, or are they in fact abrogated?