Plaintiff in Incentive Award Case Files En Banc Petition

As first noted by Eric Troutman at, the plaintiff in an Appeals Court decision that ruled incentive payments for the named plaintiff in a class-action lawsuit are illegal under Supreme Court precedent dating back more than 130 years has filed for an en banc hearing before the Eleventh Circuit.

A copy of the petition filed by plaintiff Charles Johnson can be accessed by clicking here.

The plaintiff filed a class-action lawsuit against the defendant, alleging it violated the Telephone Consumer Protection Act by using an automated telephone dialing system to contact him on his cell phone without his consent. Eight months after the suit was filed, the parties reached a settlement, in which $6,000 would go to the named plaintiff. There were some legal technicalities (click here for a more detailed description) that led one of the class members to object to the settlement, which was appealed to the Eleventh Circuit.

The Eleventh Circuit sided with the objector, which led the plaintiff to ask the entire court to hear its reasons why the decision should be overturned.

Noting that no court in the past century has ever had a problem with incentive awards and nobody on the Supreme Court has ever expressed a problem with the “accepted practice,” the plaintiff claimed that such awards are an important part of the civil litigation process.

“As the panel correctly noted, that ‘everyone does it’ is no reason to abandon a contrary legal conclusion,” the plaintiff wrote in his petition. “But that incentive awards are a universally accepted practice provides ample reason for the full Court to consider whether such an established aspect of class-action settlements should be held per se unlawful.”

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