Reply Brief — Richard Estle Carson, III, Petitioner v. Kathryn Hyland, et al.

No. 22-634

In the Supreme Court of the United States

RICHARD ESTLE CARSON III, PETITIONER,

vs.

KATHRYN HYLAND, MELISSA GARCIA, JESSICA SAINT-PAUL,

REBECCA LAWSON, MICHELLE MEANS, ELIZABETH KAPLAN,

JENNIFER GUTH, MEGAN NOCERINO, ELIZABETH TAY- LOR,

ANTHONY CHURCH, NAVIENT CORPORATION, AND NAVIENT

SOLUTIONS LLC, RESPONDENTS

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

REPLY IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

ERIC ALAN ISAACSON

Counsel of Record

LAW OFFICE OF

ERIC ALAN ISAACSON

6580 Avenida Mirola

La Jolla, CA 92037-6231

Telephone: (858)263-9581

ericalanisaacson@icloud.com

Counsel for Petitioner

Richard Estle Carson III

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES ....................................... ii

REPLY IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI .......................... 1

CONCLUSION.......................................................... 12

ii

TABLE OF AUTHORITIES

Page

CASES

In re Apple Inc. Device Performance Litig.,

50 F.4th 769 (9th Cir.2022) .................................... 5

Central Railroad & Banking Co. v. Pettus,

113 U.S. 116 (1885)(“Pettus”) ......................1, 3, 5, 7

Crutcher v. Logan,

102 F.2d 612 (5th Cir.1939) .................................... 8

Dial Corp. v. News Corp.,

317 F.R.D. 426 (S.D.N.Y. 2016) .............................. 9

In re Dry Max Pampers Litig.,

724 F.3d 713 (6th Cir.2013) .................................. 10

Fikes Wholesale, Inc. v. HSBC Bank USA),

No. 20-339, __F.4th__, 2023 WL 2506455

(2d Cir. March 15, 2023) ............................. 1-5, 8-12

Gortat v. Capala Bros.,

949 F.Supp.2d 374 (E.D.N.Y. 2013),

overruled sub silentio by Melito v. Experian

Mktg. Solutions, Inc., 923 F.3d 85

(2d Cir.2019)............................................................ 8

Granada Investments, Inc. v. DWG Corp.,

962 F.2d 1203 (6th Cir.1992) .................................. 8

Hutto v. Davis,

454 U.S. 370 (1982) ................................................. 4

Hyland v. Navient Corp.,

48 F.4th 110 (2d Cir.2022) .................................. 2, 3

Johnson v. NPAS Solutions,

975 F.3d 1244 (11th Cir.2020),

en banc rehearing denied,

43 F.4th 1138 (11th Cir.2022) ...................... 1-3, 5-6

iii

TABLE OF AUTHORITIES—Continued

Page

Johnson v. NPAS Solutions, LLC,

43 F.4th 1138 (11th Cir.2022)

(denying en banc rehearing) ................................... 5

Melito v. Experian Mktg. Solutions, Inc.,

923 F.3d 85 (2d Cir.2019) ................................ 1-4, 8

Muransky v. Godiva Chocolatier, Inc.,

922 F.3d 1175, 1196 (11th Cir.2019),

reh’g en banc granted, opinion vacated,

939 F.3d 1278 (11th Cir.2019), and on reh’g

en banc, 979 F.3d 917 (11th Cir.2020) ................... 4

Murray v. Grocery Delivery E-Services USA,

55 F.4th 340 (1st Cir.2022) ..................................... 5

In re Online DVD-Rental Antitrust Litig.,

779 F.3d 934 (9th Cir.2015) .................................. 11

In re Payment Card Interchange Fee and

Merchant Discount Antitrust Litigation

(Fikes Wholesale, Inc. v. HSBC Bank USA),

No. 20-339, __F.4th__, 2023 WL 2506455

(2d Cir. March 15, 2023)

(“Fikes Wholesale”) ...................................... 1-5, 8-12

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 563 (1986) ......................... 9

Perdue v. Kenny A. ex rel. Winn,

559 U.S. 542, 551 (2010) ......................................... 9

Sullivan v. DB Investments, Inc.,

667 F.3d 273 (3d Cir.2010)(en banc) ...................... 8

Trustees v. Greenough,

105 U.S. 527 (1882)(“Greenough”) ....................... 1-9

iv

TABLE OF AUTHORITIES—Continued

Page

In re Westinghouse Sec. Litig.,

219 F.Supp.2d 657 (W.D.Pa.2002),

aff’d sub nom. Zucker v. Westinghouse

Electric, 374 F.3d 221 (3d Cir.2004),

overruled sub silentio by Sullivan v.

DB Investments, Inc., 667 F.3d 273

(3d Cir.2011)(en banc)............................................. 8

Zucker v. Westinghouse Electric,

374 F.3d 221 (3d Cir.2004), overruled

sub silentio by Sullivan v. DB Investments,

Inc., 667 F.3d 273 (3d Cir.2011)(en banc) .............. 8

RULES

Federal Rule of Civil Procedure 23 .....................2, 3, 6

Federal Rule of Civil Procedure 23(a)(4) ................. 10

OTHER MATERIALS

John P. Dawson,

Lawyers and Involuntary Clients:

Attorney Fees from Funds,

87 Harv. L. Rev. 1597 (1974) ............................... 5-7

Theodore Eisenberg & Geoffrey P. Miller,

Incentive Awards to Class Action Plaintiffs:

An Empirical Study,

53 U.C.L.A. L.Rev. 1303 (2006) .............................. 6

5 William B. Rubenstein,

Newberg on Class Actions (5th ed. 2015) ............ 6-7

v

TABLE OF AUTHORITIES—Continued

Page

5 William B. Rubenstein,

Newberg and Rubenstein on Class Actions

(6th ed. 2022).................................................... 6-7, 9

Brief of Professor William B. Rubenstein

as Amicus Curiae in Support of Rehearing En

Banc, Johnson v. NPAS Solutions, LLC,

No. 18-12344 (11th Cir. Oct. 29, 2020) ................... 7

REPLY IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

Recognizing that “Supreme Court precedent

prohibits incentive awards,” the Eleventh Circuit held

in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244

(11th Cir.2020), that “we are not at liberty to sanction

a device or practice, however widespread, that is

foreclosed by Supreme Court precedent.” Id. at 1255,

1260. The Second Circuit, in stark contrast, has held

the opposite, expressly choosing to follow its own

decision below in this case, and in Melito v. Experian

Mktg. Sols., Inc., 923 F.3d 85, 96 (2d Cir.2019), while

acknowledging that they conflict with this Court’s

holdings in Trustees v. Greenough, 105 U.S. 527, 53738 (1882), and Central Railroad & Banking Co. v.

Pettus, 113 U.S. 116, 122 (1885). Not only is there a

conflict among the circuits: the Second Circuit has

explicitly rejected following this Court’s precedents in

favor of following its own ruling below in this case.

That challenge to this Court’s authority is a compelling

reason to grant certiorari in order to remove all doubt

about the continuing authority of this Court’s

decisions.

Decided March 15, 2023, the Second Circuit’s

precedential opinion in Fikes Wholesale bluntly refuses

to follow this Court’s decisions. The unanimous panel

opinion explains:

Service awards are likely impermissible

under Supreme Court precedent. The Supreme

Court has held that it was “decidedly objectionable” for cash allowances to be “made for the

personal services and private expenses” of a

creditor who brought suit on behalf of himself

and other similarly situated bondholders.

Trustees v. Greenough, 105 U.S. 527, 537

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(1881). Such allowances, the Court reasoned,

“would present too great a temptation to

parties to intermeddle in the management of

valuable property or funds in which they have

only the interest of creditors, and that perhaps

only to a small amount.” Id. at 538.

Appellants argue that Greenough precludes

the granting of service awards in this case, and

in virtually all other cases—as the Eleventh

Circuit held in Johnson v. NPAS Solutions,

LLC, 975 F.3d 1244 (11th Cir.2020). True,

Greenough’s holding was not about persons

designated as class representatives under the

later-formulated class action rules; but it

“involved an analogous litigation actor.” Id. at

1259. Finally, appellants argue that although

Rule 23 post-dates Greenough, it makes no

reference to service awards, and is thus

“irrelevant.” Id.

But practice and usage seem to have

superseded Greenough (if that is possible). See

Melito v. Experian Mktg. Sols. Inc., 923 F.3d

85, 96 (2d Cir.2019); Hyland v. Navient Co., 48

F.4th 110, 123-24 (2d Cir.2022). And even if (as

we think) practice and usage cannot undo a

Supreme Court holding, Melito and Navient

are precedents that we must follow.

In re Payment Card Interchange Fee and Merchant

Discount Antitrust Litigation (Fikes Wholesale, Inc. v.

HSBC Bank USA), No. 20-339, __F.4th__, 2023 WL

2506455, at *8-*9 (2d Cir. March 15, 2023)(“Fikes

Wholesale”).

Fikes Wholesale thus holds that $900,000 in

payments to eight lead plaintiffs’ service as class

representatives must be sustained under the decision

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below in this case despite this Court’s contrary rule

prohibiting such payments. Id. at *8-*9. While

acknowledging “the Supreme Court’s precedent in

apparent opposition to the practice,” the Second

Circuit remains committed to “the standardless use of

it nevertheless.” Id. at *9.

Judge Dennis Jacobs, the unanimous Fikes Wholesale panel opinion’s author, supplements it with a

concurring opinion that explains:

The named plaintiffs in this case are deemed

private attorneys general. Yet they are getting

a total of $900,000 as a kind of tip. That is

$900,000 more than permitted under Supreme

Court authority. See Trustees v. Greenough,

105 U.S. 527 (1882). The Eleventh Circuit held

as much in Johnson v. NPAS Solutions, LLC,

975 F.3d 1244 (11th Cir.2020), and I am in

accord with the views set forth in that

thorough and well-reasoned opinion.

But this Court has twice come out the opposite way. First, Melito v. Experian Marketing

Solutions, Inc., 923 F.3d 85 (2d Cir.2019)

affirmed the grant of so-called service awards,

stating, without elaboration, that Greenough

(and the Supreme Court’s less relevant

decision in Central Railroad & Banking Co. v.

Pettus, 113 U.S. 116 (1885)) did not “provide

factual settings akin to those here.” Id. at 96.

Then, recently, Hyland v. Navient Corp., 48

F.4th 110, 124 (2d Cir.2022) over-read Melito

to hold that “Rule 23 does not per se prohibit

service awards like the one at issue here.”

Melito can be best understood as an attempt

to avoid a split with the Eleventh Circuit,

which had held—in an opinion later vacated—

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4

that Greenough did not categorically prohibit

service awards. See Muransky v. Godiva

Chocolatier, Inc., 922 F.3d 1175, 1196 (11th

Cir.2019), reh’g en banc granted, opinion

vacated, 939 F.3d 1278 (11th Cir.2019), and on

reh’g en banc, 979 F.3d 917 (11th Cir.2020).

But because the Eleventh Circuit changed

course in Johnson, we now find ourselves on

the wrong side of a circuit split.

Fikes Wholesale, 2023 WL 2506455, at *17 (Jacobs, J.,

concurring).

The Second Circuit’s position is far worse than

merely being on “the wrong side of a circuit split.” Id.

For the Fikes Wholesale panel expressly follows Melito

and the decision below in this case in preference to this

Court’s otherwise controlling precedents. 1 This Court’s

immediate intervention is needed, for “[u]nless we

wish anarchy to prevail within the federal judicial

system, a precedent of this Court must be followed by

the lower federal appellate courts no matter how

misguided the judges of those courts may think it to

be.” Hutto v. Davis, 454 U.S. 370, 375 (1982).

Even if the case involved only conflict among the

circuits, however, the conflict already is well developed

and clearly articulated. The continuing authority of

this Court’s decisions in Greenough and Pettus have

been thoroughly debated in lengthy majority,

concurring, and dissenting opinions, in the courts

below. Nothing will be gained by delaying action.

Judge Newsom’s majority opinion in Johnson v.

NPAS Solutions not only is careful, detailed, and wellreasoned—it is accompanied by Judge Beverly B.

1 See Fikes Wholesale, 2023 WL 2506455, at*8-*9.

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Martin’s correspondingly comprehensive and thoughtful dissent. 2 Judge Jill A. Pryor then devoted nearly

two years to writing an exhaustive four-judge dissent

from denial of en banc rehearing, concluding that “it

will be up to the Supreme Court to overrule or clarify

Greenough and Pettus.” 3

To that already extensive discourse the First Circuit

and Ninth Circuit each have added their own serious

and substantial discussions of their reasons for

rejecting Greenough and Pettus. 4 Each explicitly

rejects the Eleventh Circuit’s holding in Johnson v.

NPAS Solutions that Greenough and Pettus still

prohibit payments to representative plaintiffs. 5 And if

that were not enough, the Second Circuit’s opinion

below in this case, and unanimous panel opinion in

Fikes Wholesale—supplemented by Judge Jacobs’s

concurring opinion—flesh things out even further.

The academic commentary also is well developed.

Harvard Professor John P. Dawson’s authoritative

1974 article on the common-fund doctrine clearly

articulated Greenough’s rule against compensating

litigants for service as representative plaintiffs—a rule

that he noted lower courts by then had honored for

Compare Johnson v. NPAS Solutions, 975 F.3d at 1255-61

(majority opinion); with id. at 1264-69 (Martin, J., dissenting).

2

3 Johnson v. NPAS Solutions, LLC, 43 F.4th 1138, 1139-53 (11th

Cir.2022)(Jill A. Pryor, Cir. J., joined by Charles R. Wilson,

Adlaberto Jordan, and Robin S. Rosenbaum, Cir. JJ., dissenting

from denial of en banc rehearing).

4 See Murray v. Grocery Delivery E-Services USA Inc., 55 F.4th

340, 352-54 (1st Cir.2022); In re Apple Inc. Device Performance

Litig., 50 F.4th 769, 785-87 (9th Cir.2022).

5 See Murray, 55 F.4th at 352; Apple Device, 50 F.4th at 785 n.13.

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6

nearly a century. 6 Other scholars noted lower courts’

subsequent adoption of a contrary rule despite the

“lack of specific authorization for incentive awards in

the relevant statutes or court rules.” 7

In Johnson v. NPAS Solutions itself, the Eleventh

Circuit relied on the leading class-actions treatise—

authored and edited by Harvard Professor William B.

Rubenstein—which in its Fifth Edition candidly

acknowledged that “‘[t]he judiciary has created these

awards out of whole cloth.’” 8 Responding to contentions

that Rule 23 overturned Greenough’s holding, the

Eleventh Circuit quoted from the Fifth Edition of

Professor Rubenstein’s treatise (as updated through

2020): “‘Rule 23 does not currently make, and has

never made, any reference to incentive awards, service

awards, or case contribution awards.’” 9

Unhappy to find his treatise so influential in the

Eleventh Circuit’s decision, Professor Rubenstein filed

an amicus brief urging en banc rehearing and arguing

in favor of incentive awards. 10 Professor Rubenstein

6 John P. Dawson, Lawyers and Involuntary Clients: Attorney Fees

from Funds, 87 Harv.L.Rev. 1597, 1601-02 (1974).

7 Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards to

Class Action Plaintiffs: An Empirical Study, 53 U.C.L.A. L. Rev.

1303, 1312-13 (2006).

8 Johnson v. NPAS Solutions, 975 F.3d at 1259 (quoting 5 William

B. Rubenstein, Newberg on Class Actions §17:4 (5th ed., updated

through 2020)).

9 Id. (quoting 5 William B. Rubenstein, Newberg on Class Actions

§17:4 (5th ed., as updated through 2020)).

10 Brief of Professor William B. Rubenstein as Amicus Curiae in

Support of Rehearing En Banc, Johnson v. NPAS Solutions, LLC,

No. 18-12344 (11th Cir. Oct. 29, 2020); see 5 William B.

Rubenstein, Newberg and Rubenstein on Class Actions §17:4 at

606 n.5 (6th ed. 2022)(“the Treatise’s author (Professor Ruben-

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then set about thoroughly revamping and rewriting

Chapter 17 of his treatise, presenting the best case

that he can for incentive awards. 11 Rubenstein’s Sixth

Edition now dismisses Greenough as “the old equity

case,” that may safely be ignored because it “seems

distant in both time and fact.” 12 It is unlikely that the

leading scholar’s defense of incentive awards, in the

leading treatise on class actions, can be much

improved upon.

Though Respondents suggest that opposition to

incentive awards arose only recently, moreover, courts

and commentators long recognized that this Court’s

common-fund doctrine, as laid down in Greenough and

Pettus, from its very beginning barred compensating

litigants for personal service as representative

plaintiffs. Harvard Professor Dawson said so in his

1974 article, noting that lower courts had until then

complied with Greenough’s rule. 13 Federal appellate

stein) filed an amicus brief on his own behalf supporting rehearing”).

11 Compare 5 William B. Rubenstein, Newberg on Class Actions,

Chapter 17, at 491-589 (5th ed. 2015)(repeatedly disparaging

incentive awards as unauthorized judicial fabrications made “of

whole cloth”), with 5 William B. Rubenstein, Newberg and

Rubenstein on Class Actions, Chapter 17, at 583-692 (6th ed.

2022)(entire chapter rewritten to defend the propriety of incentive

awards).

12 5 William B. Rubenstein, Newberg and Rubenstein on Class

Actions §17:4, at 606, (6th ed. 2022).

John P. Dawson, Lawyers and Involuntary Clients: Attorney

Fees from Funds, 87 Harv.L.Rev. 1597, 1601-02 (1974).

13

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decisions recognized the rule. 14 So did district courts. 15

Greenough’s ban on service awards for representative

plaintiffs was no secret even as hundreds—and soon

thousands—of district court rulings ignored it in the

following decades.

Respondents insist that this Court nonetheless

should delay its review because, whatever their

legality, the payments now are made according to

consistent standards across the circuits. “With the sole

exception of the recent Johnson decision from the

Eleventh Circuit,” the Hyland Class Representative

Respondents say, “the circuit courts have applied

consistent standards.” 16 But that is not true.

The Second Circuit’s recent Fikes Wholesale opinion

candidly states: “We have articulated no standard by

which district courts can consider the grant of service

awards.” Fikes Wholesale, 2023 WL 2506455, at *9.

“Given the Supreme Court’s precedent in apparent

opposition to the practice and the standardless use of

it nevertheless, it is unsurprising that, as has been

said, ‘the decision to grant the [service] award, and the

amount thereof, rests solely within the discretion of the

14 See, e.g., Granada Investments, Inc. v. DWG Corp., 962 F.2d

1203, 1207 (6th Cir.1992); Zucker v. Westinghouse Electric, 374

F.3d 221 226 (3d Cir.2004), overruled sub silentio by Sullivan v.

DB Investments, Inc., 667 F.3d 273, 333 n.65 (3d Cir.2011)(en

banc), Crutcher v. Logan, 102 F.2d 612, 613 (5th Cir.1939).

See, e.g., Gortat v. Capala Bros., 949 F.Supp.2d 374, 379

(E.D.N.Y. 2013), overruled sub silentio by Melito v. Experian

Mktg. Solutions, Inc., 923 F.3d 85 (2d Cir.2019); In re Westinghouse Sec. Litig., 219 F.Supp.2d 657, 660-61 (W.D.Pa.2002), aff’d

sub nom. Zucker v. Westinghouse Electric, 374 F.3d 221 226 (3d

Cir.2004), overruled sub silentio by Sullivan v. DB Investments,

Inc., 667 F.3d 273, 333 n.65 (3d Cir.2011)(en banc).

15

16 Brief in Opposition of Class Representative Respondents at 29.

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[District] Court.’” Id. at *9 (quoting Dial Corp. v. News

Corp., 317 F.R.D. 426, 439 (S.D.N.Y. 2016)). “Given

that the basis for any service award in a class action is

at best dubious under Greenough, and that,

unsurprisingly calculation of such an award is

standardless, it is difficult to find traction for a ruling

that this award is an abuse of discretion.” Id. at *10.

The Second Circuit’s only limitation on incentive

awards is Fikes Wholesale’s holding that “[t]he class

should not pay for time spent lobbying for changes in

law that do not benefit the class.” Id. at *10.

Asserting that “the circuit courts have applied

consistent standards,” the Hyland Class Representatives cite Professor Rubenstein’s Sixth Edition of

Newberg. 17 Yet Rubenstein candidly acknowledges

that various federal courts have “fashioned different

tests,” and that “no one test has emerged as

particularly salient.” 18 Most present a mélange of

subjective factors no more suited to consistent

decision-making than were the so-called “Johnson

factors” which, when used to set attorney’s fees, “‘gave

very little actual guidance to district courts. Setting

attorney’s fees by reference to a series of sometimes

subjective factors placed unlimited discretion in trial

judges and produced disparate results.’” 19

The Sixth Circuit stands out for enforcing

meaningful limitations. It holds, for example, that

17 Brief in Opposition of Class Representative Respondents at 29

(citing 5 William B. Rubenstein, Newberg and Rubenstein on

Class Actions §17:13 (6th ed. 2022).

18 5 William B. Rubenstein, Newberg and Rubenstein on Class

Actions §17:13, at 642-43 (6th ed. 2022).

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551

(2010)(quoting Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546, 563 (1986)).

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when class representatives’ special payments greatly

exceed what each would receive as ordinary class

members, this precludes findings of adequate

representation. In Dry Max Pampers, for example, the

Sixth Circuit reversed approval of a settlement that

gave the named plaintiffs, but not other class

members, “$1000 per ‘affected child’” because, as the

court explained:

The $1000-per-child payments provided a

disincentive for the class members to care

about the adequacy of relief afforded unnamed

class members, and instead encouraged the

class representatives “to compromise the

interest of the class for personal gain.” ... The

result is the settlement agreement in this case.

The named plaintiffs are inadequate

representatives under Rule 23(a)(4), and the

district court abused its discretion in finding

the contrary.

In re Dry Max Pampers Litig., 724 F.3d 713, 715, 722

(6th Cir.2013).

Other courts have been remarkably indifferent to

representative plaintiffs’ incentive to sell out the class

they supposedly represent in return for a generous

“service award.” Take Fikes Wholesale, for example.

The Second Circuit notes that “the district court

bestowed a total of $900,000 in service awards to the

eight lead plaintiffs, with the two highest awards in

the amount of $200,000.” Fikes Wholesale, 2023 WL

2506455, at *9.

Appellants argue that the lead plaintiffs

cannot adequately represent the class because

the service awards dwarf the recovery for the

lead plaintiffs and the average class member.

As Appellants point out, certain lead plaintiffs

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will receive service awards that are about 100

times as large as their expected settlement

recovery. Thus, Photos Etc., with an estimated

claim of about $2,000, gets a service award of

$200,000—more than 400 times the average

recovery, which is less than $500. We recognize

that certain district courts have relied on these

sorts of comparisons; but we have never

required their use, and we decline to do so now.

Id. at *10 (footnote omitted).

Wide discrepancies—between paltry relief for class

members, and rich service payments for class

representatives—are the norm. 20 In Johnson, No. 22389, the district court awarded the representative

plaintiff $6,000 as part of a settlement that recovered

less than $8 per class. 21 In this case, representative

plaintiffs were awarded $15,000 apiece for agreeing to

a common-fund settlement from which other class

members receive not a penny. Incentive awards like

these are quite typical, but they have corrosive effects

on representative plaintiffs’ ability to adequately

represent other class members’ interests.

For its part, the Second Circuit in Fikes Wholesale

rejected contentions that such awards need bear any

clear relation to the representative plaintiffs’ actual

efforts on behalf of the class:

Payless reported that participation in this case

cost it $70,000 in salary and wages; and CHS

20 See, e.g., In re Online DVD-Rental Antitrust Litig., 779 F.3d 934,

941, 943 (9th Cir.2015)(affirming settlement paying representtative plaintiffs $5,000 apiece for their service in agreeing to a

settlement giving other class members “roughly $12 each”).

See Brief for Respondent Jenna Dickenson, Johnson v.

Dickenson, No. 22-389, at 7.

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reported $39,000. Appellants contend that

service awards should have been directly tied

to those losses, and that the district court's

failure to do so amounted to an abuse of

discretion. Service awards have been limited to

lost wages and out-of-pocket expenses in the

context of private federal securities litigation.

... The district court in this antitrust case was

not bound by the limitation.

Fikes Wholesale, 2023 WL 2506455, at *11 (citation

omitted). The only standard limiting service awards in

the Second Circuit is that they may not be paid for

“time spent lobbying for changes in law that do not

benefit the class.” Id. at *10.

CONCLUSION

The issue is an important one, affecting most class

actions. The conflict with this Court’s common-fund

precedents is real, as is the conflict among the circuits.

The Petition should be granted.

Respectfully submitted,

ERIC ALAN ISAACSON

Counsel of Record

LAW OFFICE OF

ERIC ALAN ISAACSON

6580 Avenida Mirola

La Jolla, CA 92037-6231

Telephone: (858)263-9581

ericalanisaacson@icloud.com

Counsel for Petitioner

Richard Estle Carson III

March 28, 2023