Amicus Curiae Brief — Eric Alan Isaacson, Petitioner v. Maribel Moses, et al.

No. 25-1411

In the

Supreme Court of the United States

ERIC ALAN ISAACSON,

Petitioner,

v.

MARIBEL MOSES, et al.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA IN SUPPORT OF PETITIONER

MICHAEL H. MCGINLEY

BRIAN A. KULP

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

GARY M. DREYER

DECHERT LLP

Three Bryant Park

1095 Avenue of the

Americas

New York, NY 10036

STEVEN A. ENGEL

Counsel of Record

RILEY D. COMPTON

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3369

steven.engel@dechert.com

JENNIFER B. DICKEY

KATHERINE M. FERAZZI

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

Counsel for Amicus Curiae

September 18, 2026

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................... 2

ARGUMENT ............................................................... 5

I. This Case Presents an Exceptionally

Important and Recurring Question ...................... 5

A. The Availability of Incentive Awards

Encourages Abuses of the Class Action

System .............................................................. 5

B. The Availability of Incentive Awards in

Class

Actions

Ultimately

Harms

American Businesses and Consumers ............ 8

II. The Decision Below Is on the Wrong Side of

an Acknowledged Circuit Split ........................... 10

A. The Decision Below Conflicts with

Greenough and Pettus .................................... 11

B. The Lower Court’s Reasoning Is

Unpersuasive ................................................. 13

CONCLUSION ......................................................... 16

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Allapattah Servs., Inc. v. Exxon Corp.,

362 F.3d 739 (11th Cir. 2004) .................................. 8

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ................................................. 9

Boeing Co. v. Van Gemert,

444 U.S. 472 (1980) ......................................... 12, 13

Cent. R.R. & Banking Co. v. Pettus,

113 U.S. 116 (1885)............................................ 3, 12

Chieftain Royalty Co. v. SM Energy Co.,

100 F.4th 1147 (10th Cir. 2024) ............................ 10

China Agritech, Inc. v. Resh,

584 U.S. 732 (2018) ............................................... 15

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978) ................................................. 9

Czyzewski v. Jevic Holding Corp.,

580 U.S. 451 (2017) ............................................... 15

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ................................................. 9

Fikes Wholesale, Inc. v. HSBC Bank USA, N.A.,

62 F.4th 704 (2d Cir. 2023) ............................ 2, 4, 11

Graves v. United Indus. Corp.,

2020 WL 953210 (C.D. Cal. Feb. 24, 2020) ............ 7

Hadix v. Johnson,

322 F.3d 895 (6th Cir. 2003) .................................... 5

iii

In re Apple Inc. Device Performance Litig.,

50 F.4th 769 (9th Cir. 2022) .................................. 10

In re Cont’l Ill. Sec. Litig.,

962 F.2d 566 (7th Cir. 1992) .................................... 5

In re Dry Max Pampers Litig.,

724 F.3d 713 (6th Cir. 2013) .............................. 2, 13

Johnson v. NPAS Solutions, LLC,

975 F.3d 1244 (11th Cir. 2020) ............... 4, 10, 13-15

Johnson v. NPAS Solutions, LLC,

43 F.4th 1136 (11th Cir. 2022) ........................... 4, 10

Liu v. SEC,

591 U.S. 71 (2020) ................................................. 15

Mission Prod. Holdings v. Tempnology, LLC,

587 U.S. 370 (2019) ............................................... 15

Moses v. N.Y. Times Co.,

79 F.4th 235 (2d Cir. 2023) .................................... 10

Murray v. Grocery Delivery E-Servs. USA Inc.,

55 F.4th 340 (1st Cir. 2022) ................................... 10

Nat’l Veterans Legal Servs. Prog. v. United

States,

170 F.4th 1353 (Fed. Cir. 2026)............................. 10

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) ............................................... 15

Scott v. Dart,

99 F.4th 1076 (7th Cir. 2024) ................................ 10

T.K. ex rel. Leshore v. Bytedance Tech. Co.,

2022 WL 888943 (N.D. Ill. Mar. 25, 2022).............. 6

Trustees v. Greenough,

105 U.S. (15 Otto) 527 (1882)...................... 3, 11, 12

iv

United States v. Hatter,

532 U.S. 557 (2001) ............................................... 13

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) ............................................... 12

Weseley v. Spear, Leeds & Kellogg,

711 F. Supp. 713 (E.D.N.Y. 1989) ............................ 7

Statutes

15 U.S.C. § 78u-4(a)(2)(A)(vi) ..................................... 3

28 U.S.C. § 2072(b) ............................................... 4, 14

Class Action Fairness Act, Pub. L. No. 109-2,

§ 2(a), 119 Stat. 4 (2005) ......................................... 3

Rules

Fed. R. Civ. P. 23(e)(2)(D) ......................................... 14

Other Authorities

2026 Carlton Fields Class Action Survey (2026),

bit.ly/4iT2kIc ........................................................... 9

Theodore Eisenberg & Geoffrey P. Miller,

Incentive Awards to Class Action Plaintiffs:

An Empirical Study, 53 UCLA L. Rev. 1303

(2006) ................................................................... 7, 8

Samuel Estreicher & John E. Sexton, A

Managerial Theory of the Supreme Court’s

Responsibilities: An Empirical Study, 59

N.Y.U. L. Rev. 681 (1984) ........................................ 8

Linda S. Mullenix, Ending Class Actions as We

Know Them: Rethinking the American Class

Action, 64 Emory L.J. 399 (2014) ........................... 6

v

William B. Rubenstein, Newberg and

Rubenstein on Class Actions § 17:7

(6th ed. 2026) ........................................................... 8

U.S. Chamber of Commerce Institute for Legal

Reform, Unfair, Inefficient, Unpredictable:

Class Action Flaws and the Road to Reform

(2022), bit.ly/4ilmhap .................................... 7, 9, 10

1

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

organization. As the nation’s leading advocate for

business, the Chamber represents companies and

professional organizations of every size, in every

industry sector, and from every region of the country.

An important function of the Chamber is to represent

the interests of its members in matters before

Congress, the Executive Branch, and the courts. To

that end, the Chamber regularly files amicus curiae

briefs in cases, like this one, that raise issues of

concern to the nation’s business community.

The Chamber has a significant interest in this

case. Its members are frequent defendants in federal

class actions. And, in recent years, that litigation has

been increasingly driven by incentive awards for

named plaintiffs—particularly in cases involving lowvalue claims. Plaintiffs’ lawyers use the prospect of

such awards to entice individuals to serve as named

plaintiffs. They can thus pursue cases that no plaintiff

would otherwise bother with. These lawyer-driven

actions are often meritless. But the sheer cost to

litigate them creates enormous settlement pressure.

Allowing the decision below to stand will therefore

Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund this brief ’s preparation or submission. Counsel

for all parties received timely notice of the intention to file this

brief.

1

2

harm businesses that comply with the law, while

spurring further litigation that hurts our economy.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case is a prime candidate for review. Whether

federal courts may authorize incentive awards to

named class action plaintiffs is a critically important

issue. It has squarely divided the lower courts. And

the decision below falls on the wrong side of this

openly acknowledged circuit split.

This issue is exceptionally important and

recurring. Far too often, “class actions that plaintiffs

lack incentive to bring are class actions that need not

be brought.” Fikes Wholesale, Inc. v. HSBC Bank

USA, N.A., 62 F.4th 704, 730 (2d Cir. 2023) (Jacobs, J.,

concurring). These cases saddle defendants, the

judicial system, and the broader economy with the

steep costs of complex litigation over paltry claims.

And the goal of bringing these actions is rarely to

provide meaningful recovery for class members, but

rather, to line the pockets of plaintiffs’ counsel.

Incentive awards fuel that dynamic. The plaintiffs’

bar uses the prospect of such awards to solicit named

plaintiffs for the cases they have concocted. Then, that

anticipated incentive award ironically “provide[s] a

disincentive for the [named] class members to care

about the adequacy of relief afforded [to] unnamed

class members.” In re Dry Max Pampers Litig., 724

F.3d 713, 722 (6th Cir. 2013). After all, the named

plaintiff may not care if she and her fellow class

members receive $1 or $10 for their claims, where she

stands to receive a $5,000 bounty for lending her name

to the litigation regardless.

3

If Congress wants to experiment with that

hazardous regime, then it may do so. But this practice

is inconsistent with laws on the books. Congress

forbade incentive awards in securities class actions

when it enacted the Private Securities Litigation

Reform Act in 1995. See 15 U.S.C. § 78u-4(a)(2)(A)(vi).

Then it reiterated those misgivings a decade later in

the Class Action Fairness Act, finding that

“unjustified awards” made “to certain plaintiffs at the

expense of other class members” were among the most

prevalent “abuses of the class action device.” Class

Action Fairness Act, Pub. L. No. 109-2, § 2(a), 119

Stat. 4, 4 (2005) (codified as a note to 28 U.S.C. § 1711).

The decision below not only conflicts with

Congress’s stated skepticism of incentive awards, but

also with this Court’s precedent. Over a century ago,

this Court established the common-fund doctrine that

still applies in class actions today. In doing so, it held

that a representative plaintiff may recover his

“reasonable costs, counsel fees, charges, and expenses

incurred” out of the common fund. Trustees v.

Greenough, 105 U.S. (15 Otto) 527, 537 (1882). But,

this Court emphasized, any fees disbursed for

“personal services and private expenses” are

“decidedly objectionable” and “illegally made.” Id. at

537–38. The Court reaffirmed that holding in Central

Railroad & Banking Co. v. Pettus, 113 U.S. 116, 122

(1885), explaining once again that issuing such

incentive awards to named plaintiffs is “unsupported

by reason or authority.”

Nothing has changed since. Congress has never

authorized named plaintiffs to recover incentive

awards. And the Federal Rules of Civil Procedure

4

could not create that substantive right either. See 28

U.S.C. § 2072(b). Even if they could, “Rule 23 does not

currently make, and has never made, any reference to

incentive awards.” Johnson v. NPAS Solutions, LLC,

975 F.3d 1244, 1259 (11th Cir. 2020), reh’g en banc

denied, 43 F.4th 1136 (11th Cir. 2022) (citation

omitted). There is accordingly no basis to depart from

Greenough and Pettus.

Over the past few decades, however, many lower

courts have done just that. They have uncritically

allowed incentive awards to creep into class actions,

without pausing to consider the legality of issuing

such bounty payments. Then inertia took over. Courts

across the country—including the court below—

permitted their own “practice and usage” to

“supersed[e] Greenough,” even while acknowledging

that incentive awards “are likely impermissible under

Supreme Court precedent.” Fikes Wholesale, 62 F.4th

at 721 (majority op.).

Those decisions are wrong. The lower courts “are

not at liberty to sanction a device or practice, however

widespread, that is foreclosed by Supreme Court

precedent.” Johnson, 975 F.3d at 1260. So, unlike

several of its sister circuits, the Eleventh Circuit has

rightly held the line that this Court drew long ago.

This Court should grant certiorari and reverse to

uphold its precedent and close the entrenched circuit

split.

5

ARGUMENT

I. This Case Presents an Exceptionally

Important and Recurring Question.

Incentive awards invite exploitation of the class

action system. They provide enterprising class action

attorneys with a mechanism to induce named

plaintiffs to sign on to low-value class actions that they

otherwise would not bring. Then the awards enable

class counsel to exploit conflicts of interest through

settlements that do not benefit the entire class. This

has led to a class action system where the winners are

class action attorneys and paid class representatives,

and the losers are class members, American

businesses, and the public. This case therefore

presents an exceptionally important question that

warrants this Court’s review.

A. The Availability of Incentive Awards

Encourages Abuses of the Class Action

System.

Courts have long recognized that “incentive

awards may lead named plaintiffs to expect a bounty

for bringing a suit” and thereby “compromise the

interest of the class for personal gain.” Hadix v.

Johnson, 322 F.3d 895, 897 (6th Cir. 2003). These

payments, which exist in part to “induce [named

plaintiffs] to participate in the suit,” In re Cont’l Ill.

Sec. Litig., 962 F.2d 566, 571 (7th Cir. 1992), multiply

lawyer-driven class action proceedings and create

ethical issues, including misaligned interests between

the named plaintiff and her fellow class members.

This case presents a prime example, though it is not

alone.

6

Here, Ms. Moses, the named plaintiff, brought her

claims against the New York Times on behalf of herself

and those similarly situated.

Pet.App.2a–3a.

Eventually, she and class counsel agreed to a

settlement of $2.375 million, where class counsel

would receive one-third, Ms. Moses would receive

$5,000, and each class member would receive a paltry

$1.81. Pet.5–6. The few members of the class that

even filed a claim will thus receive less than the cost

of the print version of the Times—and 2,762 times less

than what Ms. Moses received. See Linda S. Mullenix,

Ending Class Actions as We Know Them: Rethinking

the American Class Action, 64 Emory L.J. 399, 419

(2014) (noting that “very small percentages of class

members actually file and receive compensation from

settlement funds”). And that was only after Petitioner

objected. The initial settlement disparity was even

worse. See Pet.3.

This discrepancy exemplifies a troubling dynamic

that has infected class action litigation across the

country. Consider T.K. ex rel. Leshore v. Bytedance

Tech. Co., 2022 WL 888943 (N.D. Ill. Mar. 25, 2022),

as another example.

There, the district court

approved incentive awards for the two named

plaintiffs of $1,000, when the few class members who

actually filed claims each received a mere $3.06. Id.

at *14, *16, *26. The attorneys, for their part, took

home over $215,000 in fees and costs. Id. at *29. The

court recognized the “sizeable disparity between the

named Plaintiffs and claimants who will likely receive

$3.06.” Id. at *16. But it forged ahead anyways

because these incentive awards “induce[d] individuals

to become named representatives.” Id. (citation

omitted).

7

So too in Graves v. United Industries Corporation,

where each class member was set to receive less than

$7 in remuneration, while the class representatives

were paid out a handsome $3,000 to $5,000. 2020 WL

953210, at *8–9 (C.D. Cal. Feb. 24, 2020). Class

counsel walked away with $625,000. Id. at *8.

Other examples abound. Indeed, in some cases, the

named plaintiff has secured an incentive award that

exceeded the total amount actually paid out to the rest

of the class. See U.S. Chamber of Commerce Institute

for Legal Reform, Unfair, Inefficient, Unpredictable:

Class Action Flaws and the Road to Reform 16–17 &

n.55 (2022), bit.ly/4ilmhap. In Spillman v. RPM

Pizza, LLC, the unnamed class members filed claims

totaling just $3,795, the class representative received

a $5,000 incentive award, and his attorneys pocketed

$2.5 million in fees and costs. See Ex Parte Motion,

Ex. 3, at 1, Spillman v. RPM Pizza, LLC, No. 3:10-cv00349-BAJ-SCR (M.D. La. July 16, 2013), ECF 244-4.

These gross disparities were not always the norm.

“Courts once tended to limit incentive awards to cases

where the representative plaintiff had provided

special services to the class.” Theodore Eisenberg &

Geoffrey P. Miller, Incentive Awards to Class Action

Plaintiffs: An Empirical Study, 53 UCLA L. Rev. 1303,

1310 (2006). As these courts warned, “[i]f class

representatives expect routinely to receive special

awards in addition to their share of the recovery, they

may be tempted to accept suboptimal settlements at

the expense of the class members whose interests they

are appointed to guard.” Weseley v. Spear, Leeds &

Kellogg, 711 F. Supp. 713, 720 (E.D.N.Y. 1989).

Nevertheless, “[b]y the turn of the century, some

8

considered these awards to be ‘routine.’” Eisenberg &

Miller, supra, at 1311 (citation omitted). Indeed, one

study found that these cash bounties for named

plaintiffs were paid out in “71.3% of all cases.” 5

William B. Rubenstein, Newberg and Rubenstein on

Class Actions § 17:7 (6th ed. 2026).

Not only is this problem widespread and recurring,

but litigants can readily exploit it through forum

shopping. In many class actions, “plaintiffs’ attorneys

can essentially cherry-pick whom they wish to make a

named plaintiff and decide for themselves” where to

file suit. Allapattah Servs., Inc. v. Exxon Corp., 362

F.3d 739, 764 (11th Cir. 2004) (Tjoflat, J., dissenting

from the denial of rehearing en banc), aff’d sub nom.

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.

546 (2005). These attorneys will thus have little

trouble flocking to Circuits that permit generous

incentive awards. And that underscores why this

Court’s immediate intervention is necessary. An

“intolerable conflict” exists in the law “when litigants

are able to exploit [the] conflict[] affirmatively through

forum shopping.” Samuel Estreicher & John E.

Sexton, A Managerial Theory of the Supreme Court’s

Responsibilities: An Empirical Study, 59 N.Y.U. L.

Rev. 681, 725 (1984).

B. The Availability of Incentive Awards in

Class Actions Ultimately Harms American

Businesses and Consumers.

Lower courts have allowed incentive awards

because they “encourage class representatives to

participate in class action lawsuits.” Pet.App.45a.

But that is exactly the problem. The availability of

these awards increases the number of class action

9

filings—especially for low-value claims—that should

have never been filed in the first place.

This needless multiplication of class actions harms

businesses, consumers, and the broader economy.

After all, class action litigation is notoriously

expensive. Defending against class actions already

costs America’s largest employers over $4.5 billion per

year. See 2026 Carlton Fields Class Action Survey 6

(2026), bit.ly/4iT2kIc. And the cost to defend a single

large class action can run into eight figures or more.

These staggering “litigation costs are not just bad for

business.” U.S. Chamber of Commerce Institute for

Legal Reform, supra, at 26. Companies “have no

choice but to pass these expenses on to consumers by

raising the prices of goods and services.” Id. at 12.

This “ultimately harm[s] the very people the litigation

purportedly benefits.” Id. at 26.

The true beneficiaries of all this litigation are class

counsel. It is “well known that [class actions] can

unfairly ‘place pressure on the defendant to settle even

unmeritorious claims.’” Epic Sys. Corp. v. Lewis, 584

U.S. 497, 524 (2018) (alteration adopted; citation

omitted). For even when individual claim values are

low, class actions exponentially “increase the

defendant’s potential damages liability and litigation

costs.” Coopers & Lybrand v. Livesay, 437 U.S. 463,

476 (1978). As a result, defendants often “find it

economically prudent to settle and to abandon a

meritorious defense.” Id.; see also AT&T Mobility LLC

v. Concepcion, 563 U.S. 333, 350 (2011) (noting the

“risk of ‘in terrorem’ settlements that class actions

entail” (citation omitted)). While Rule 23 provides

some fairness review of class-action settlements, such

10

settlements routinely result in awards for class

counsel that dwarf the individual relief of claimants.

See, e.g., U.S. Chamber of Commerce Institute for

Legal Reform, supra, at 12–13. To obtain these

awards, the plaintiff ’s lawyer may need to do little

more than find a client willing to affix her name to his

class action complaint. That is where incentive

awards come in. And that is why the question

presented warrants this Court’s attention now.

II. The Decision Below Is on the Wrong Side of

an Acknowledged Circuit Split.

In addition to being exceptionally important, the

question presented is the subject of an open and

clearly acknowledged “circuit split on whether

incentive awards for class representatives are

authorized by law.” Chieftain Royalty Co. v. SM

Energy Co., 100 F.4th 1147, 1161 n.20 (10th Cir. 2024);

see Pet.App.46a. The Court should grant this petition

to resolve that split and reverse the lower court. The

Eleventh Circuit has it right, see Johnson, 975 F.3d at

1260, and the other Circuits have it wrong, see Murray

v. Grocery Delivery E-Servs. USA Inc., 55 F.4th 340,

353 (1st Cir. 2022); Moses v. N.Y. Times Co., 79 F.4th

235, 256 (2d Cir. 2023); Scott v. Dart, 99 F.4th 1076,

1088 (7th Cir. 2024); In re Apple Inc. Device

Performance Litig., 50 F.4th 769, 785–87 (9th Cir.

2022); Nat’l Veterans Legal Servs. Prog. v. United

States, 170 F.4th 1353, 1364 (Fed. Cir. 2026). The en

banc Eleventh Circuit has also refused, over a dissent,

to reconsider its position. See Johnson, 43 F.4th at

1138–39. Therefore, only this Court can restore

uniformity in the law.

11

A. The Decision Below

Greenough and Pettus.

Conflicts

with

This Court’s decisions in Greenough and Pettus are

squarely on point. That is why Judge Jacobs has

recognized that the Second Circuit sits “on the wrong

side of a circuit split.” Fikes Wholesale, 62 F.4th at 729

(Jacobs, J., concurring).

In Greenough, a plaintiff filed suit “on behalf of

himself and the other bondholders” of the Florida

Railroad Company. 105 U.S. at 528. He “bore the

whole burden of this litigation, and advanced most of

the expenses which were necessary for the purpose of

rendering it effective and successful.” Id. at 529. He

then sought to recover for “his expenses and services”

out of the common fund that he secured. Id. Drawing

from a long history of equity practice, Greenough held

that federal courts could generally “make such

allowance to [named] parties out of the fund as justice

and equity may require.” Id. at 535.

At the same time, however, any allowance for

“personal services and private expenses” was

“decidedly objectionable.” Id. at 537. The court could

“find no authority whatever for any such charge.” Id.

Nor was there any good reason to issue an incentive

award. While it might make sense to award trustees

with a salary “for their personal services,” which

would “secure greater activity and diligence in the

performance of the trust” and “induce persons of

reliable character and business capacity to accept the

office of trustee,” those considerations did not apply to

a party “seeking his [own] rights in a judicial

proceeding.” Id. at 537–38. Allowing an award above

that plaintiff ’s pro rata share would “present too great

12

a temptation to parties to intermeddle in the

management of valuable property or funds.” Id. at

538. The Court thus held that the disbursement of an

award to the plaintiff for his personal services was

“illegally made.” Id.

Three years later, Justice Harlan reaffirmed and

reapplied those principles in a unanimous decision for

the Court. In Pettus, he drew the same distinction

between (1) a lead plaintiff ’s “claim to be

compensated, out of the fund of property recovered, for

personal services and private expenses,” and

(2) allowances for “reasonable costs, counsel fees,

charges, and expenses incurred in the fair prosecution

of the suit.” 113 U.S. at 122–23. Only the latter were

permissible in “suits instituted by one or more persons

suing in behalf of themselves and of all others having

a like interest touching the subject-matter of the

litigation.” Id. at 122.

The modern class action is just that—a

representative suit instituted by one or more persons

on behalf of themselves and similarly situated parties.

See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

348–49 (2011). Indeed, this Court has continued to

apply the “common-fund doctrine” as set forth by

Greenough and Pettus in modern class actions. Boeing

Co. v. Van Gemert, 444 U.S. 472, 478 (1980). That is

because the doctrine “reflects the traditional practice

in courts of equity.” Id. (citing Greenough, 105 U.S. at

532–37). It is a narrow “exception to the general

principle that requires every litigant to bear his own

attorney’s fees,” which “rests on the perception that

persons who obtain the benefit of a lawsuit without

contributing to its cost are unjustly enriched at the

13

successful litigant’s expense.” Id. But the exception

goes no further. Unlike attorneys’ fees, incentive

awards do not provide a proportional benefit to all

members of a class, and their provision to the lead

plaintiff is not necessary to prevent unjust

enrichment.

Therefore, the principles articulated in Greenough

and Pettus resolve this case. “[M]odern-day incentive

award[s]” are no different from the “payment[s] for

‘personal services’” that this Court rejected. Johnson,

975 F.3d at 1257. They perpetuate the exact same ills.

If anything, they pose “even more pronounced risks

than the salary and expense reimbursements

disapproved in Greenough,” since they “are intended

not only to compensate class representatives for their

time (i.e., as a salary), but also to promote litigation by

providing a prize to be won (i.e., as a bounty).” Id. at

1258. This Court’s precedent “prohibits” such awards.

Id. at 1259.

B. The

Lower

Unpersuasive.

Court’s

Reasoning

Is

The Second Circuit offered a few rejoinders. But

none is persuasive.

First, the lower court reasoned that “practice and

usage” have “superseded” Greenough and Pettus.

Pet.App.48a. But this Court’s precedent controls over

lower court practice. See, e.g., United States v. Hatter,

532 U.S. 557, 567 (2001) (“[I]t is this Court’s

prerogative alone to overrule one of its precedents.”

(citation omitted)). That is especially true here, where

incentive awards have grown “like dandelions on an

unmowed lawn—present more by inattention than by

design.” In re Dry Max Pampers Litig., 724 F.3d at

14

722. “The uncomfortable fact is that ‘[t]he judiciary

has created these awards out of whole cloth,’” with few

courts stopping until recently “to consider the legal

authority for incentive awards.” Johnson, 975 F.3d at

1259 (citation omitted). The ubiquity of incentive

awards thus cannot save them. On the contrary, the

fact that courts so routinely award them underscores

the need for this Court’s review.

Second, the Second Circuit observed that Rule 23

“creates a much broader and more muscular class

action device than the common law predecessor that

spawned” Greenough and Pettus. Pet.App.48a. Yet

Rule 23 displaces neither the precedential value nor

the logic behind those decisions. More to the point, the

text of Rule 23 has nothing to say about incentive

awards, so “[t]he fact that Rule 23 post-dates

Greenough and Pettus” is “irrelevant.” Johnson, 975

F.3d at 1259.

The lower court thought that Rule 23(e)(2)(D)’s

command is at least “harmonious” with incentive

awards. Pet.App44a. But, as that hedging language

might imply, the Rule does not authorize such awards.

Nor could it do so under the Rules Enabling Act. See

28 U.S.C. § 2072(b). Instead, Rule 23(e)(2)(D) merely

directs courts to consider whether a class action

settlement “treats class members equitably relative to

each other,” such as where they have claims for

different amounts.

Besides, Greenough and Pettus already struck the

equitable balance against incentive awards. Those

decisions offered “transsubstantive guidance on . . .

fundamental equitable principles” that dictate what

types of allowances a named plaintiff may take from a

15

common fund. See Liu v. SEC, 591 U.S. 71, 81 (2020)

(citation omitted).2 Rule 23’s reference to equity must

be read “consistent with [those] equitable principles,”

rather than in conflict with them. Id. at 90.

Third, the court below thought that this Court

recently “left Greenough and Pettus in the rear view.”

Pet.App.48a–49a (citing China Agritech, Inc. v. Resh,

584 U.S. 732, 747 n.7 (2018)). Yet that reads way too

much into way too little. China Agritech’s passing

remark that a named plaintiff “might” receive a

payment “above and beyond her individual claim,”

China Agritech, 584 U.S. at 747 n.7—in a case that

had nothing to do with incentive awards—is not an

endorsement of the practice. It is no more than a

casual observation in “footnoted dicta.” Johnson, 975

F.3d at 1260 n.12.

In short, Greenough and Pettus remain good law,

and the lower court erred in refusing to follow them.

This Court should grant certiorari to reaffirm the rule

it laid down in those cases and resolve the circuit split

over incentive awards.

This Court’s bankruptcy precedents reflect similar equitable

principles. Filing for bankruptcy creates a common fund or “pot

out of which creditors’ claims are paid.” Mission Prod. Holdings

v. Tempnology, LLC, 587 U.S. 370, 373 (2019). The law then

requires distribution from that pot “in accordance with

established principles rather than on the basis of the inside

influence or economic leverage of a particular creditor.”

Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 465 (2017)

(citation omitted). So, too, in class action settlements. They

create common funds with “definitely ascertained limit[s],” which

are “distributed to satisfy all those with liquidated claims based

on a common theory of liability, by an equitable, pro rata

distribution.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 841 (1999).

2

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CONCLUSION

The Court should grant certiorari.

Respectfully submitted,

MICHAEL H. MCGINLEY

BRIAN A. KULP

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

GARY M. DREYER

DECHERT LLP

Three Bryant Park

1095 Avenue of the

Americas

New York, NY 10036

STEVEN A. ENGEL

Counsel of Record

RILEY D. COMPTON

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3369

steven.engel@dechert.com

JENNIFER B. DICKEY

KATHERINE M. FERAZZI

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

Counsel for Amicus Curiae

September 18, 2026