Nantiya Ruan (U. Denver Law School) has posted on SSRN, Bringing Sense to Incentives: Harmonizing Courts’ Chaotic Caselaw on Class Action Incentive Payments. It makes what I find to be a really persuasive point about how courts handle class actions: because the same class action rule (FRCP 23) and jurisprudence applies to all class actions (discrimination, consumer, securities, etc.), courts end up restricting plaintiffs’ rights in disfavored class action types (e.g., securities fraud class actions), which mucks up class action law for more socially important types of class actions — like discrimination cases. Here’s the abstract:
Employment discrimination class actions (EDCA) are complex creatures for many reasons. One complexity involves the resolution of EDCAs, which typically includes a provision for an incentive award or”bonus”for named plaintiffs. This Article describes five models under which courts struggle with awarding incentive awards to named plaintiffs in EDCAs. It examines how (under which model) and why (upon what justification) courts award or refuse to award incentive payments. This examination illustrates that courts have failed to differentiate between incentive payments that further Title VII’s statutory goal of workplace fairness and other litigation matters, such as securities litigation or consumer credit actions. In short, courts too often restrict incentives in EDCAs based on rationales better suited to less public-minded consumer or other class actions. By conflating the different models, instead of recognizing the difference between distinct and varied areas of substantive law, courts have severely limited the incentive for plaintiffs to bring meritorious and worthwhile discrimination claims on a class basis. This article aims to refocus the inquiry of Title VII incentive payments back on the statutory goals of the civil rights initiative and argues that courts must stop applying rationales from other class claims to EDCAs.
This paper is part of a symposium issue on employee rights class actions scheduled to appear in 2007 in the Employee Rights & Employment Policy Journal, the only peer-reviewed employment law journal. Should be a good bunch of articles.
– Scott Moss