ARTICLE
Incentive Awards to Class Action Plaintiffs: An Empirical Study
Theodore Eisenberg* 
Geoffrey P. Miller** 
53 UCLA L. Rev. 1303

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Abstract

Incentive awards to representative plaintiffs in class actions have been the focus of recent law reform efforts and have generated inconsistent case law. But little is known about such awards. This study of 374 opinions from 1993 to 2002 finds that awards were granted in about 28 percent of settled class actions. The rate of awards varied by case category as follows: consumer credit actions 59 percent, employment discrimination cases 46 percent, antitrust cases 35 percent, securities cases 24 percent (before the Private Securities Litigation Reform Act of 1995 limited awards), and corporate and mass tort actions less than 10 percent. The decision to grant an incentive award was associated with increased awards of attorneys’ costs and expenses (our proxy for representative-plaintiff costs) in relation to median class-member recoveries and with the case being in federal court. When given, incentive awards constituted, on average, 0.16 percent of the class recovery, with a median of 0.02 percent. Award levels varied by case category. Employment discrimination cases had large incentive awards compared to other categories. Award size was associated with the case’s costs and expenses, the class recovery amount, the median recovery per class member, the case’s risk, and the presence of objection to the settlement. Awards exhibited a scaling effect; their percentage of the class recovery decreased as the class recovery increased. We examine the data in light of four hypotheses about the function of incentive awards: (1) reimbursing class representatives for nonpecuniary litigation costs; (2) rewarding class representatives for superior service; (3) facilitating self-interested behavior by class counsel; and (4) achieving proportionality between awards and other outcomes in the case. We find support for the reimbursement and proportionality hypotheses and weaker support for the attorney self-interest and reward-for-service hypotheses. We find little evidence of systematic abuse in incentive awards. Given the modest frequency and size of awards, and their possible benefits, case-by-case adjudication may be more appropriate than fixed legislative or judicial rules banning awards.


* Henry Allen Mark Professor of Law, Cornell Law School.
** Stuyvesant P. Comfort Professor of Law, New York University School of Law.

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