Almost three years ago, the U.S. Court of Appeals for the Eleventh Circuit rocked the class action world with its decision in Johnson v. NPAS Solutions, LLC, finding that class representative awards are barred under 140-year-old Supreme Court precedent. To the surprise of many, the Eleventh Circuit denied the petition for rehearing en banc in 2022, and in April the United States Supreme Court denied certiorari, despite a developing circuit split.

Currently, the Eleventh Circuit is the only federal court of appeal to hold such awards categorically prohibited. However, a Second Circuit panel recently noted that, if it were not bound by two prior Second Circuit decisions upholding class representative awards, it would agree with the Eleventh Circuit. The Department of Justice, relying in part on Johnson, also recently expressed skepticism about such awards.

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