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.

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Photo of Jeffrey Huberman Jeffrey Huberman

Focusing on complex class actions and commercial litigation, Jeffrey Huberman has handled matters involving a range of issues, including products liability, consumer protection, breach of contract, tort, and statutory claims.

Jeffrey works with clients in the sports, financial services, and pharmaceutical industries, among…

Focusing on complex class actions and commercial litigation, Jeffrey Huberman has handled matters involving a range of issues, including products liability, consumer protection, breach of contract, tort, and statutory claims.

Jeffrey works with clients in the sports, financial services, and pharmaceutical industries, among others, using his substantial experience in all stages of litigation, including:

  • dispositive motions;
  • fact and expert discovery;
  • class certification;
  • summary judgment; and
  • trial

Jeffrey has first-chaired fact and expert witness depositions and has drafted dispositive motions in both federal and state court for clients. In addition, Jeffrey maintains an active pro bono practice focused on veterans’ rights and criminal justice.

Prior to attending law school, Jeffrey worked for the Massachusetts House of Representatives.