Amicus Curiae Brief — Thomas J. Dart, Sheriff, Cook County, Illinois, et al., Petitioners v. Quintin Scott

No. 24-464

IN THE

Supreme Court of the United States

THOMAS J. DART, SHERIFF, COOK COUNTY, ILLINOIS,

ET AL.

Petitioners,

v.

QUINTIN SCOTT,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

__________________________________________________________________________________________________

BRIEF OF THE DRI CENTER FOR LAW AND

PUBLIC POLICY AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

__________________________________________________________________________________________________

DRI CENTER FOR LAW

AND PUBLIC POLICY

222 South Riverside

Plaza

Chicago, IL 60606

(312) 698-6210

MATTHEW T. NELSON

Counsel of Record

CHARLES R. QUIGG

WARNER NORCROSS + JUDD

LLP

150 Ottawa Avenue NW

Suite 1500

Grand Rapids, MI 49503

(616) 752-2000

mnelson@wnj.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY .......................... 2

REASONS FOR GRANTING THE PETITION ......... 3

I.

Incentive awards do not compensate for

a preexisting injury, and defendants do

not pay them ................................................... 3

II. The prospect of an incentive award

cannot underwrite Article III standing ......... 5

CONCLUSION .......................................................... 13

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) ............................................. 8

Camreta v. Greene,

563 U.S. 692 (2011) ............................................. 9

Deposit Guaranty National Bank v. Roper,

445 U.S. 326 (1980) ............................... 10, 11, 12

Diamond v. Charles,

476 U.S. 54 (1986) ........................................... 8, 9

In re Dry Max Pampers Litigation,

724 F.3d 713 (6th Cir. 2013) ............................... 5

Espenscheid v. DirectSat USA, LLC,

688 F.3d 872 (7th Cir. 2012) ............................... 5

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.,

528 U.S. 167 (2000) ............................................. 8

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013) ............................................. 10

Hadix v. Johnson,

322 F.3d 895 (6th Cir. 2003) ........................... 6, 7

Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) ................................. 9, 10, 12

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Microsoft Corp. v. Baker,

582 U.S. 23 (2017) ............................................. 13

Raines v. Byrd,

521 U.S. 811 (1997) ......................................... 3, 8

Rodriguez v. West Pubishing Corp.,

563 F.3d 948 (9th Cir. 2009) ............................... 6

Shady Grove Orthopedic Associates, P.A. v.

Allstate Insurance Co.,

559 U.S. 393 (2010) ........................................... 13

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ........................................... 13

Steel Co. v. Citizens for a Better

Environment,

523 U.S. 83 (1998) ............................................. 12

Sullivan v. DB Investments, Inc.,

667 F.3d 273 (3d Cir. 2011) ................................ 6

Summers v. Earth Island Institute,

555 U.S. 488 (2009) ........................................... 12

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ....................................... 8, 12

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016) ........................................... 13

U.S. Parole Commission v. Geraghty,

445 U.S. 388 (1980) ..................................... 10, 11

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Vermont Agency of Natural Resources v.

U.S. ex rel. Stevens,

529 U.S. 765 (2000) ........................... 9, 10, 13, 14

Statutes

18 U.S.C. § 3730 ..................................................... 14

Constitutional Provisions

U.S. Constitution, Article 3, Section 2 .................... 8

Other Authorities

William B. Rubenstein, Newberg &

Rubenstein on Class Actions (6th ed.) ...... 6, 7, 14

1

BRIEF OF THE DRI CENTER FOR LAW AND

PUBLIC POLICY AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS1

INTEREST OF AMICUS CURIAE

The DRI Center for Law and Public Policy is the

public policy “think tank” and advocacy voice of DRI,

Inc.—an international organization of more than

12,000 attorneys who represent businesses in civil

litigation. DRI’s mission includes enhancing the

skills, effectiveness, and professionalism of defense

lawyers; promoting appreciation of the role of defense

lawyers in the civil justice system; and anticipating

and addressing substantive and procedural issues

germane to defense lawyers and the fairness of the

civil justice system. The Center participates as an

amicus curiae in this Court, federal courts of appeals,

and state appellate courts in an ongoing effort to

promote fairness, consistency, and efficiency in the

civil justice system.

This case fits those criteria. “No principle is more

fundamental to the judiciary’s proper role . . . than the

constitutional limitation of federal-court jurisdiction

to actual cases or controversies.” Raines v. Byrd, 521

U.S. 811, 818 (1997) (quoting Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 37 (1976)). Allowing a

plaintiff to maintain a lawsuit after he settles his

claims runs roughshod over that principle.

This brief was not authored in whole or in part by counsel for

any party, and no person or entity other than amicus curiae and

its counsel made a monetary contribution to the preparation or

submission of this brief. DRI notified all parties of its intent to

file this brief on November 15, 2024.

1

2

INTRODUCTION AND SUMMARY

This case presents a simple question: does a party

who has settled her claims continue to have a

sufficient personal stake for Article III’s purposes to

maintain a lawsuit on a putative class’s behalf? As

petitioners correctly explain, the answer is no.

Regardless of whether incentive awards to class

representatives are lawful, the prospect of such an

award does not create a justiciable case or controversy

as to the settling plaintiff.

The parties agree that incentive awards are paid

by class members out of their recovery and are

designed to compensate the named plaintiff for his

service to the class, not to compensate him for an

injury he suffered at the defendant’s hands. The

prospect of an incentive award thus gives the named

plaintiff some stake in the case—the same stake

someone who bets on the lawsuit’s result would have.

That type of interest, however, is insufficient to confer

standing under this Court’s precedents, which require

the plaintiff’s interest to follow from an injury in fact

suffered at the defendant’s hands.

The Court’s dated precedents suggesting that

named plaintiffs have a cognizable interest in shifting

their attorney fees and costs or vindicating their

supposed right to represent a class giving rise to

standing in the absence of any other purported injury

counsel in favor of granting the petition. The holdings

in those cases have been overtaken by this Court’s

later decisions, and the Court should clarify that they

are overruled.

The Court has repeatedly recognized that a plaintiff’s desire to obtain the byproducts of litigation—

3

attorney fees and the like—does not satisfy Article III.

Incentive awards are just another litigation

byproduct. The petition should be granted.

REASONS FOR GRANTING THE PETITION

I.

Incentive awards do not compensate for a

preexisting injury, and defendants do not

pay them.

The starting point for assessing whether the

prospect of an incentive award may give rise to Article

III standing is the basis for and source of such awards.

No law or rule explicitly authorizes incentive awards;

“they are like dandelions on an unmowed lawn—

present more by inattention than by design.” In re Dry

Max Pampers Litig., 724 F.3d 713, 722 (6th Cir. 2013).

One may nonetheless draw some conclusions from the

case law.

Respondent synthesized below that incentive

awards are designed to “pay” for a named plaintiff’s

“service” to the class—that is, for “serv[ing] as a

fiduciary to the class, submit[ting] to deposition,

participat[ing] in discovery, and tak[ing] on the risk

that he will have to pay for the other side’s costs if the

case fails.” C.A. Dkt. No. 43 at 3. And they “allocate

part of a settlement fund to the named plaintiff” to do

so. Id. at 8.

Respondent’s summary of the basis for and source

of incentive awards is consistent with how courts and

commentators have long understood incentive

awards. Courts roundly recognize that incentive

awards compensate named plaintiffs for their service

to the class. E.g., Espenscheid v. DirectSat USA, LLC,

688 F.3d 872, 877 (7th Cir. 2012) (“The incentive

reward is designed to compensate him for bearing

4

the[] risks [of liability for the defendant’s attorney fees

and costs], as well as for as any time he spent sitting

for depositions and otherwise participating in the

litigation as any plaintiff must do.” (citations

omitted)); Sullivan v. DB Invs., Inc., 667 F.3d 273, 333

n.65 (3d Cir. 2011) (“ ‘The purpose of these payments

is to compensate named plaintiffs for the services they

provided and the risks they incurred during the

course of class action litigation,’ and to ‘reward the

public service of contributing to the enforcement of

mandatory laws.’ ” (citation omitted)); Rodriguez v. W.

Publ’g Corp., 563 F.3d 948, 958–59 (9th Cir. 2009)

(recognizing that incentive awards are “intended to

compensate class representatives for work done on

behalf of the class, to make up for financial or

reputational risk undertaken in bringing the action,

and, sometimes, to recognize their willingness to act

as a private attorney general”). Commentators agree.

E.g., 5 William B. Rubenstein, Newberg & Rubenstein

on Class Actions § 17.3 (6th ed.) (“[T]he payments aim

to compensate class representatives for their service

to the class and simultaneously serve to incentivize

them to perform this function.”).

As for the source of the payment, Judge

Easterbrook cogently analyzed below the question of

who pays incentive awards. He explained that the

other plaintiffs do: “If prevailing plaintiffs pay the

representative for services to the class, well and good;

but a judge cannot order the defendant to pay more

than the permissible level of damages, plus attorneys’

fees and costs authorized by statute.” App. 46a.

Judge Easterbrook’s view generally prevails. For

instance, in Hadix v. Johnson, 322 F.3d 895 (6th Cir.

2003), the Sixth Circuit rejected a request for an

incentive award in a case that resulted in a consent

5

decree rather than a common fund. “Unsurprisingly,”

the court explained, “we are unable to find any case

where a claim for an incentive award that is not

authorized in a settlement agreement has been

granted in the absence of a common fund.” 322 F.3d at

898. Because the consent decree before the court did

not authorize any incentive award and did not create

a common fund, it was “plainly inappropriate to grant

an incentive award.” Ibid.

Similarly, the leading class-action treatise reports

that “there is no statutory basis” to require a

defendant to pay an incentive award in the absence of

a common fund or a settlement agreement providing

for an award. Rubenstein, supra, § 17.5. “[C]ourts

have rejected awards on that basis.” Ibid. (recognizing

that “there are a few scattered reports of defendants

being ordered to pay incentive awards in fee-shifting

cases”).

In short, incentive awards are paid not by the

defendant but by other members of the plaintiff class.

And they are paid to compensate the named plaintiff

not for his injury at the defendant’s hands but rather

for his service to the class.

II. The prospect of an incentive award cannot

underwrite Article III standing.

Because incentive awards do not compensate for

an injury caused by the defendant and are simply a

possible byproduct of litigation, incentive awards

cannot support a named plaintiff’s standing to pursue

claims on behalf of a putative class after she settles

6

her claims.2 Under this Court’s precedents, a named

plaintiff’s “interest in . . . obtaining a class incentive

award does not create Article III standing.” CampbellEwald Co. v. Gomez, 577 U.S. 153, 178 n.1 (2016)

(Roberts, C.J., dissenting).

“The ‘law of Art. III standing is built on a single

basic idea—the idea of separation of powers.’ ”

TransUnion LLC v. Ramirez, 594 U.S. 413, 422 (2021)

(quoting Raines, 521 U.S. at 820). Article III of the

Constitution limits the power of federal courts to

deciding “Cases” or “Controversies.” U.S. Const. art.

3, § 2, cl. 1. “No principle is more fundamental to the

judiciary’s proper role in our system of government

than the constitutional limitation of federal-court

jurisdiction to actual cases or controversies.” Raines,

521 U.S. at 818 (quoting Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 37 (1976)).

“The presence of a disagreement, however sharp

and acrimonious it may be, is insufficient by itself to

meet Art. III’s requirements.” Diamond v. Charles,

476 U.S. 54, 62 (1986). “For there to be a case or

controversy under Article III, the plaintiff must have

a ‘personal stake’ in the case—in other words,

standing.” TransUnion, 594 U.S. at 423 (quoting

Raines, 521 U.S. at 819). “The exercise of judicial

power . . . can so profoundly affect the lives, liberty,

2 Petitioners couch the question presented in terms of standing.

One might also phrase it as a question of mootness—standing’s

cousin. Cf. Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 180 (2000) (“The Constitution’s caseor-controversy limitation on federal judicial authority . . .

underpins both our standing and our mootness jurisprudence

. . . .”). Respondent apparently had standing to sue at the outset

of the case. He lost his personal interest in the outcome of the

lawsuit, however, when he voluntarily settled with petitioners.

7

and property of those to whom it extends that the

decision to seek review must be placed in the hands of

those who have a direct stake in the outcome.”

Diamond, 476 U.S. at 62 (cleaned up). The plaintiff’s

personal stake “must continue” for the duration of the

lawsuit; “it is not enough that a dispute was very

much alive when suit was filed.” Lewis v. Cont’l Bank

Corp., 494 U.S. 472, 477 (1990) (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).

A plaintiff shows that he has a sufficient personal

stake for Article III’s purposes when “three conditions

are satisfied”: the plaintiff “must show that he has

‘suffered an injury in fact’ that is caused by ‘the

conduct complained of’ and that ‘will be redressed by

a favorable decision.’ ” Camreta v. Greene, 563 U.S.

692, 701 (2011). “These requirements together

constitute the ‘irreducible constitutional minimum’ of

standing, which is an ‘essential and unchanging part’

of Article III’s case-or-controversy requirement, and a

key factor in dividing the power of government

between the courts and the two political branches.” Vt.

Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S.

765, 772 (2000) (quoting Lujan, 504 U.S. at 560).

To state the rule is to recognize why a possible

incentive award does not give a named plaintiff a

cognizable personal stake for purposes of Article III.

An incentive award compensates the named plaintiff

for his service and is paid by the class; it does not

compensate the plaintiff for an injury caused by the

defendant’s conduct. To be sure, the named plaintiff

has a “concrete private interest in the outcome of [the]

suit” insofar as he hopes to negotiate or receive an

incentive award. Vt. Agency of Nat. Res., 529 U.S. at

772 (quoting Lujan, 504 U.S. at 573). “An interest

unrelated to injury in fact,” however, “is insufficient

8

to give a plaintiff standing.” Ibid. Otherwise, anyone

“who has placed a wager upon the outcome” or who is

being paid by someone for his service as named

plaintiff would have Article III standing. See ibid.

This Court’s companion decisions in Deposit

Guaranty National Bank v. Roper, 445 U.S. 326

(1980), and U.S. Parole Commission v. Geraghty, 445

U.S. 388 (1980), arguably are in tension with this

conclusion, but they are no impediment to granting

the petition. If anything, their existence commends a

grant because this Court’s later decisions have

superseded them and they should be overruled.3

In Roper, after the district court denied class

certification, the defendant made an offer of judgment

to the named plaintiffs of all amounts claimed in the

plaintiffs’ individual capacities. 445 U.S. at 327.

Although the plaintiffs rejected the defendant’s offer,

the district court nonetheless entered judgment over

their objection consistent with the offer. Id. The

plaintiffs then sought appellate review of the denial of

class certification. Id. at 330.

Notwithstanding the judgment on the merits

entered in the plaintiffs’ favor, this Court held that

the plaintiffs continued to have a sufficient personal

stake as to the “procedural ruling, collateral to the

merits of [the litigation],” denying class certification.

Id. at 336. To reach that conclusion, the Court

accepted the plaintiffs’ contention that “they

3 This Court has questioned Roper’s continuing validity but has

not had occasion to resolve it. See Genesis Healthcare Corp. v.

Symczyk, 569 U.S. 66, 78 (2013) (“Because Roper is

distinguishable on the facts, we need not consider its continuing

validity in light of our subsequent decision in Lewis v.

Continental Bank Corp., 494 U.S. 472 (1990).”).

9

retain[ed] a continuing individual interest in the

resolution of the class certification question in their

desire to shift part of the costs of litigation to those

who will share in its benefits if the class is certified

and ultimately prevails.” Id. In other words, the

plaintiffs’ interest in being reimbursed for some of

their attorney fees and costs gave them standing to

appeal.

This Court decided Geraghty the same day.

Geraghty was a challenge to the U.S. Parole

Commission’s Parole Release Guidelines. 445 U.S. at

390. After the district court denied class certification,

the named plaintiff was released from prison, mooting

his personal claim. Ibid. The question before this

Court was whether the named plaintiff continued to

have a personal stake for purposes of challenging the

denial of class certification on appeal.

As in Roper, this Court answered affirmatively. “A

plaintiff who brings a class action presents two

separate issues for judicial resolution,” the Court

reasoned. Id. at 402. “One is the claim on the merits;

the other is the claim that he is entitled to represent

a class.” Ibid. Although the Court recognized that “a

‘legally cognizable interest’ . . . in the traditional sense

rarely ever exists with respect to the class certification

claim,” it nonetheless held4 that “[t]he question

whether class certification is appropriate remains as

a concrete, sharply presented issue” sufficient to

satisfy Article III. Id. at 402–03. In other words, the

4 Curiously, the Court explicitly disclaimed opining on whether

“the named plaintiff is entitled to continue litigating the

interests of the class” assuming the reviewing court reverses the

denial of class certification. 445 U.S. at 405.

10

denial of the “right to have a class certified”

purportedly conferred by the Federal Rules of Civil

Procedure gave the named plaintiff a sufficient

personal stake even though his claim indisputably

was moot. Id. at 403.

Whatever their merits on their unique facts in

1980, this Court’s subsequent decisions have shown

that Roper and Geraghty were wrongly decided. As for

Roper and a named plaintiff’s purported interest in

having his fees and costs shared with a class, this

Court has since repeatedly held that an interest in

attorney fees or costs—even when authorized by

statute—“is insufficient to create an Article III case or

controversy where none exists on the merits of the

underlying claim.” Lewis, 494 U.S. at 480 (emphasis

added) (citing Diamond, 476 U.S. at 70–71); accord

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107

(1998) (“[R]eimbursement of the costs of litigation

cannot alone support standing.”). “[A] plaintiff cannot

achieve standing to litigate a substantive issue by

bringing suit for the cost of bringing suit.” Steel Co.,

523 U.S. at 107. Rather, “[t]he litigation must give the

plaintiff some other benefit besides reimbursement of

costs that are a byproduct of the litigation itself.” Id.

Roper is impossible to square with these later

decisions.

So too is Geraghty and its reliance on a named

plaintiff’s purported procedural right to represent a

class under the Federal Rules of Civil Procedure. This

Court has since repeatedly held that “deprivation of a

procedural right without some concrete interest that

is affected by the deprivation—a procedural right in

vacuo—is insufficient to create Article III standing.”

Summers v. Earth Island Inst., 555 U.S. 488, 496

(2009); accord TransUnion, 594 U.S. at 427 (“[U]nder

11

Article III, an injury in law is not an injury in fact.

Only those plaintiffs who have been concretely

harmed by a defendant’s statutory violation may sue

that private defendant over that violation in federal

court.”); Spokeo, Inc. v. Robins, 578 U.S. 330, 341

(2016) (“Robins could not, for example, allege a bare

procedural violation, divorced from any concrete

harm, and satisfy the injury-in-fact requirement of

Article III.”).

Applied here, that rule should mean that the

purported procedural right to certify a class has no

bearing on a named plaintiff’s standing. Class

“allegations are simply the means of invoking a

procedural mechanism that enables a plaintiff to

litigate his individual claims on behalf of a class.”

Microsoft Corp. v. Baker, 582 U.S. 23, 45 (2017)

(Thomas, J., concurring in the judgment). “A class

action . . . merely enables a federal court to adjudicate

claims of multiple parties at once, instead of in

separate suits”; “it leaves the parties’ legal rights and

duties intact and the rules of decision unchanged.”

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.

Co., 559 U.S. 393, 408 (2010). “Article III does not give

federal courts the power to order relief to any

uninjured plaintiff, class action or not.” Tyson Foods,

Inc. v. Bouaphakeo, 577 U.S. 442, 466 (2016) (Roberts,

C.J., concurring).

This Court’s upholding of False Claims Act relator

standing in Vermont Agency of Natural Resources v.

United States ex rel. Stevens, 529 U.S. 765 (2000),

likewise fails to support respondent’s standing in this

case. Just the opposite. Indeed, the Court explicitly

recognized that “the bounty [the relator] will receive

if the suit is successful” is insufficient to confer

standing. 529 U.S. at 772. “The [plaintiff’s] interest

12

must consist of obtaining compensation for, or

preventing, the violation of a legally protected right,”

and a “qui tam relator has suffered no such invasion.”

529 U.S. at 772–73. That rationale maps directly onto

incentive awards and illustrates why the prospect of

an incentive award does not confer standing.

What, then, gave the relator standing?

Recognizing that the False Claims Act explicitly

provides that a relator “may bring a civil action for a

violation of [the False Claims Act] for [himself] and for

the United States Government,” 18 U.S.C.

§ 3730(b)(1), the Court explained that the False

Claims Act “can reasonably be regarded as effecting a

partial assignment of the Government’s damages

claim” to the relator, 529 U.S. at 773. As an assignee,

the relator could stand in the Government’s shoes for

standing purposes. Id. at 774. The Court also heeded

the centuries-old tradition of qui tam suits in England

and the United States, demonstrating that “qui tam

actions were ‘cases and controversies of the sort

traditionally amenable to, and resolved by, the

judicial process.’ ” Id. at 777 (quoting Steel Co., 523

U.S. at 102).

Neither of the predicates that supported relator

standing in Vermont Agency of Natural Resources is

present in this case. Incentive awards are not

authorized by statute or rule but rather are a judicial

invention. Incentive awards represent not an ex ante

assignment of each class member’s claim to the named

plaintiff but rather post hoc compensation for service

to the class. And incentive awards have no historical

pedigree. See Rubenstein, supra, § 17.2 (noting that a

1987 decision appears to be the first to use the term

“incentive award”).

13

If class-action incentive awards are lawful, they

are only byproducts of litigation that class members

pay to named plaintiffs to compensate them for their

service to the class. The Court should grant the

petition to confirm that the prospect of an incentive

award does not give a settling named plaintiff a

sufficient personal stake for Article III’s purposes to

perpetuate a lawsuit. And in doing so, the Court

should clarify that the Roper and Geraghty decisions

have been superseded and are no longer good law.

CONCLUSION

For these reasons, and those stated by petitioners,

the petition for a writ of certiorari should be granted.

Respectfully submitted,

DRI CENTER FOR LAW

AND PUBLIC POLICY

222 South Riverside

Plaza

Chicago, IL 60606

(312) 698-6210

MATTHEW T. NELSON

Counsel of Record

CHARLES R. QUIGG

WARNER NORCROSS + JUDD

LLP

150 Ottawa Avenue NW

Suite 1500

Grand Rapids, MI 49503

(616) 752-2000

mnelson@wnj.com

Counsel for Amicus Curiae

NOVEMBER 25, 2024