The en banc Eleventh Circuit recently denied a petition to rehear the case of Johnson v. NPAS Solutions, LLC (Johnson II).  See 2022 WL 3083717 (11th Cir. Aug. 3, 2022).  The initial opinion in Johnson relied on two Supreme Court decisions from the 1880s to hold that district courts can never, under any circumstances, approve incentive or service awards for class representatives in class action settlements.  Johnson v. NPAS Sols., LLC (Johnson I), 975 F.3d 1244, 1255 (11th Cir. 2020) (citing Trustees v. Greenough, 105 U.S. 527 (1881), and Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885)).

This is a significant development.  As Judge Pryor pointed out in her dissent from the denial of rehearing, the panel’s decision in Johnson I “broke with decisions from this and every other circuit allowing these [incentive] awards,” adopting “a position that had never been embraced by any court.”  Johnson II, 2022 WL 3083717, at *1 (Pryor, J., dissenting from the denial of rehearing en banc).  Indeed, the Eleventh Circuit now stands alone as the only Circuit to bar these awards per se.  With the circuit split now confirmed, the Supreme Court will likely be asked to resolve the issue.