University of Denver Sturm College of Law

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905, 926 (1978); Kevin M. Clermont & Stewart. J. Schwab ..... supra note 1, at 813; Suzette M. Malveaux, Fighting To Keep Employment Discrimination Class.
University of Denver Sturm College of Law Legal Research Paper Series Working Paper No. 07-09

Bringing Sense to Incentives: Harmonizing Courts' Chaotic Caselaw on Class Action Incentive Payments NANTIYA RUAN

University of Denver - Sturm College of Law Employee Rights and Employment Policy Journal, Winter 2006

This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection Original Abstract ID: http://ssrn.com/abstract=926212 Electronic copy of this paper is available at: http://ssrn.com/abstract=926212

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BRINGING SENSE TO INCENTIVES: AN EXAMINATION OF INCENTIVE PAYMENTS TO NAMED PLAINTIFFS IN EMPLOYMENT DISCRIMINATION CLASS ACTIONS BY NANTIYA RUAN∗ I. INTRODUCTION ..................................................................................... II. THE HISTORICAL ROOTS OF CLASS ACTIONS AS VEHICLES FOR SOCIAL CHANGE ................................................................................... III. THE CURRENT NEED FOR PROSECUTION OF EMPLOYMENT DISCRIMINATION CLASS ACTIONS........................................................ A. Disparate Impact Analysis............................................................. B. Off-site Discrimination .................................................................. C. Wage Gap Between Sexes: the Glass Ceiling Remains ................. IV. THE ROLE OF NAMED PLAINTIFFS IN EMPLOYMENT DISCRIMINATION CLASS ACTIONS AND THE BARRIERS THEY FACE ..................................................................................................... A. The Critical Difference Between the Role of Named Plaintiffs in EDCAs and Other Types of Class Actions ................. B. The Case for Awarding Named Plaintiffs in EDCAs..................... V. THE JUDICIAL RESPONSE TO INCENTIVE PAYMENTS TO NAMED PLAINTIFFS ............................................................................................ A. The Judicial Response as Disincentive for Named Plaintiffs ........ 1. The Bounty Model................................................................... 2. The Restitutionary Model ........................................................ 3. The Fiduciary Model ............................................................... B. Incentive Payment Models That Reflect the Civil Rights Initiative......................................................................................... 1. The Public Policy Model ..................................................... 2. The Award Model................................................................ ∗ Assistant Professor of Legal Writing, University of Denver Sturm College of Law; Assistant Director, Law and Society Program, The Women’s College at the University of Denver. Many thanks to the attorneys at Outten & Golden LLP – advocates for workplace fairness in class action litigations. A heartfelt thank you to Scott Moss, Piper Hoffman, Craig Rogers, and the Colorado Employment Law Faculty scholars, Rachel Arnow-Richman, Melissa Hart, Martin Katz, and Catherine Smith, for their invaluable input and encouragement. Special thanks to Alison Schellpfeffer and Jennifer Shaw for their remarkable research assistance.

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C. Recent EDCA Decisions Reflecting Disincentive Models ............. VI. CONCLUSION .........................................................................................

“If I knew that I would have to endure so much, for so little in return, I would never have agreed to be a named plaintiff.” — named plaintiff of a national, gender discrimination class action to the author.

I. INTRODUCTION Employment discrimination cases are among the most difficult cases to litigate.1 For a multitude of reasons, employment discrimination class actions (EDCAs) are even harder than individual cases. Not only are they hard to litigate, but they are extraordinarily hard for named plaintiffs to live through. Contrary to popular misunderstanding, the plaintiffs who are willing to take the risks associated with pursuing these complex, timeconsuming suits are providing an essential and difficult public service. The pursuit of class action litigation in this context is a public service because the civil rights laws are structured to place a significant enforcement burden on private litigants. Without class litigation, employment anti-discrimination laws will be under-enforced.2 Thus, it is important that plaintiffs be willing and therefore encouraged to take on the mantle of named class representative. Despite the importance of this role, there are many downsides to the role of named plaintiffs in an EDCA. Why would an employee agree to be a named plaintiff in an EDCA? Employees, former and current, take huge risks when they agree to be named plaintiffs in a class action bringing legal claims of unlawful bad acts by employers. Retaliation, isolation, ostracism by co-workers, “black listing” by future employers, emotional trauma, and fear of having to pay defendants’ legal fees are among the most obvious.3 1. See, e.g., Robert Belton, A Comparative Review of Public and Private Enforcement of Title VII of The Civil Rights Act of 1964, 31 VAND. L. REV. 905, 926 (1978); Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEG. STUD. 429, 429 (2004) (noting based on empirical study that in employment discrimination cases, “relatively often, the numerous plaintiffs must pursue their claims all the way through trial . . . ; at both pretrial and trial these plaintiffs lose disproportionately often, in all the various types of employment discrimination cases; and employment discrimination litigants appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs”); Melissa Hart, Will Employment Discrimination Class Actions Survive?, 37 AKRON L. REV. 813 (2004). 2. Lee Anne Graybeal, Note, The Private Attorney General and the Public Advocate: Facilitating Public Interest Litigation, 34 RUTGERS L. REV. 350, 352 (1981-82). 3. See, e.g., Roberts v. Texaco, Inc., 979 F. Supp. 185 (S.D.N.Y. 1997) (Special Master made

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Additionally, the time commitments and effort required for investigation and discovery of the claims are intense. While a strong motivation to be a class representative is the altruistic desire to eradicate workplace discrimination, the law provides another incentive to encourage their participation: named plaintiffs are sometimes awarded “incentive payments” for acting as class representatives in EDCAs.4 These incentive payments afford named plaintiffs with an additional recovery amount to acknowledge the additional burdens and risks the named representatives face beyond those required by class members generally. Courts scrutinize these awards closely in determining whether to order an award or grant approval of a class settlement under the judicial approval process. Recently, the judicial trend has been to question incentive awards’ validity and to decrease award amounts or take them out of the settlement decree altogether.5 However, the courts’ justifications for doing so are anything but consistent. As an addition to the literature on complex litigation, this article offers two contributions. First, this article harmonizes the chaotic case law on incentive payments by categorizing the case decisions into five models. Second, this article notes that the source of much of the confusion in this area is that courts apply these five models haphazardly in the context of EDCAs. Courts’ reasoning in evaluating incentive payments applies only occasionally to EDCAs; more typically, the reasoning is far more applicable to, and derived from, other areas of class action practice, like consumer and securities suits. The five approaches courts take in considering the appropriateness of incentive payments to class representatives are: (1) The Bounty Model focuses attention on the risks of pro- viding “bounties” to named plaintiffs and thereby creating an incentive for extensive findings about the risks that the named plaintiffs bore and recommended incentive awards between $2,500 and $85,000; district court judge relied on findings and provided former employees with low end of recommendation ($2,500) because of an absence of risk of retaliation); Women’s Comm. for Equal Emp. Opportunity v. Nat’l Broadcasting Co., 76 F.R.D. 173, 181 (S.D.N.Y. 1977) (finding persuasive that named plaintiffs risked job security and good will of co-workers and assessing incentive payments). 4. See Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards to Class Actions Plaintiffs: An Empirical Study, at 1 (Cornell Law School Legal Studies Research Paper Series, Research Paper No. 05-037, Dec. 7, 2005), available at http://ssrn.com/abstract=869308 (incentive payments given in 46 percent of published EDCA cases between 1993 and 2002). 5. See, e.g., In re Synthroid Marketing Litig., 264 F.3d 712, 722-23 (7th Cir. 2001) (affirming district court decision to grant incentive awards to some but not all named plaintiffs); Sheppard v. Consol. Edison Co., No. 94-CV-0403, 2002 U.S. Dist. LEXIS 16314, at *19-20 (E.D.N.Y. Aug. 1, 2002) (awarding 1/6 amount of the maximum incentive awards proposed by plaintiffs).

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“bidding wars” among plaintiffs and attorneys for class representative status; (2) The Restitutionary Model focuses attention on the need to calibrate the size of the incentive payment to the market value of the named plaintiffs’ contributions. This approach was first taken by Judge Posner in In re Matter of Continental Illinois Securities Litigation6 (a nonemployment, common-fund, securities class action), and relied upon by courts when judges are concerned that payments to class representatives not exceed the market value of their contributions; (3) The Fiduciary Model focuses on the risk of collusion, the appearance of impropriety or fraud, and the need to downsize proposed incentive payments to make the awards between the named plaintiffs and absent class members equal; (4) The Public Policy Model focuses on the importance of making incentive awards to named plaintiffs because they assisted the statutory scheme of Title VII; and (5) The Award Model focuses on the risks named plaintiffs incur and the benefits they bestow in their role as class representatives. Having elaborated these five models, this Article then examines how (under which model) and why (upon what justification) courts award or refuse to award incentive payments. This examination illustrates that courts have failed to differentiate between incentive payments that further Title VII’s statutory goal of workplace fairness and incentive payments in unambiguously private litigations, like securities litigation or consumer credit actions. In short, courts too often restrict incentives in EDCAs based on rationales better suited to less public-minded class actions. By conflating the different models, instead of recognizing the difference between distinct and varied areas of substantive law, courts have severely limited the incentive for plaintiffs to bring meritorious and worthwhile discrimination claims on a class basis. This article aims to refocus the inquiry of Title VII incentive payments back on the statutory goals of the civil rights initiative and argues that courts must stop applying rationales from other class claims to EDCAs. Part II reviews the history of the civil rights initiative that led parties to rely upon Title VII and the employment discrimination class action vehicle as a means of addressing systemic, widespread discrimination in the workplace. Part III examines why broad institutional reform against workplace discrimination is needed as much today as when the civil rights 6. 962 F.2d 566, 572 (7th Cir. 1992).

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legislation was originally enacted and that the statutory goals of the Act are furthered by prosecution of “private attorney general” class action claims by named plaintiffs and their attorneys. Part IV outlines the valuable and unique contributions named plaintiffs make in successful investigation and prosecution of EDCAs. Part V looks at the ways in which courts discourage plaintiffs from bringing EDCAs. Examining court decisions that fall into the three “disincentive” models (bounty, restitutionary, and fiduciary), Part V argues that there is an anti-incentive payment movement among the courts in recent years. This can be explained, in part, by the courts’ mistaken reliance on decisions outside the civil rights context (such as securities and consumer credit class actions) in examining EDCA incentive payments. These judicial decisions view named plaintiffs as “bounty hunters” looking to cash in on the system, ignoring important statutory and societal goals furthered by EDCAs. Part V also examines the two proposed models (public policy and award) that reflect the courts correctly examining the goals of Title VII and the proper procedure for allowing incentive payments to named plaintiffs in EDCAs. Part V articulates why robust incentive payments to named plaintiffs are a legitimate means of enforcing civil right laws and meet the legislative intent of Title VII. This Article argues that it is not contrary to a named plaintiff’s fiduciary duty to the class to be awarded an incentive payment. Instead, incentive payments increase the opportunity to uncover and eliminate widespread and unlawful discrimination.

II. THE HISTORICAL ROOTS OF CLASS ACTIONS AS VEHICLES FOR SOCIAL CHANGE The origins of Federal Rule of Civil Procedure 23, which controls class actions in federal court, are steeped in a civil rights tradition.7 The 7. See FED. R. CIV. P. 23 Notes of the Advisory Comm. on Rules – 1966 Amends., Subdiv. (b)(2) (stating that the primary cases that fall within this Rule are “various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration”); James E. Pfander, Brown II: Ordinary Remedies for Extraordinary Wrongs, 24 LAW & INEQ. 47, 72 (2006); Rachel Tallon Pickens, Too Many Riches? Dukes v. Wal-Mart and the Efficacy of Monolithic Class Actions, 83 U. DET. MERCY L. REV. 71, 74 (2006).

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rule provides an avenue for social advocacy to a large group of underprivileged and underrepresented people and has been utilized widely in furthering minority rights, civil liberties, and environmental causes.8 The provision of the rule that allows for broad injunctive relief to an entire class was designed by the Rules Committee with the concept of using litigation as a tool for social change, and more specifically, the Civil Rights movement, in mind.9 In no small part because of its potential for social reform, the class action vehicle has been the source of much debate and controversy.10 In spite of this controversy, class actions remain a central element of civil litigation, and are particularly influential in employment discrimination litigation. Discrimination class actions have challenged systemic, widespread discrimination since the early days of Title VII.11 Upon passage of Title VII of the Civil Rights Act of 1964, employee advocates seized upon the class action vehicle as a way to more effectively implement the “commitment to racial and gender equality in the workplace and establish[] the desirability

8. See George Rutherglen, Title VII Class Actions, 47 U. CHI. L. REV 688, 688, 692 (1979-80); Graybeal, supra note 2, at 352-53. 9. See Fed. R. Civ. P. 23 Notes of the Advisory Comm. on Rules – 1966 Amends., Subdiv. (b)(2) (stating that the primary cases that fall within this Rule are “various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration”); Jenkins v. United Gas Corp., 400 F.2d 28, 34 n.14 (5th Cir. 1968) (“Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”) (citing cases). 10. DEBORAH R. HENSLER ET AL., INSTITUTE FOR CIVIL JUSTICE, CLASS ACTION DILEMMAS, PURSUING PUBLIC GOALS FOR PRIVATE GAIN, (Rand Corp. No. MR-969-ICJ 2000); Louis W. Hensler III, Class Counsel, Self-Interest and Other People’s Money, 35 U. MEM. L. REV. 53, 64 (2004). The controversy and debate recently reached a fever pitch with the passage of the Class Action Fairness Act of 2005 (CAFA). 28 U.S.C. § 1711 (Supp. 2006). Although originally conceived as a broad attack on all class actions, the more modest version of CAFA actually enacted mainly attempts to rein in the spurious “coupon” or “in-kind” settlement, the most villainous of all class action settlements, including addressing “windfall” settlements to class counsel in these cases. See ORRIN G. HATCH, S. JUDICIARY COMM., THE CLASS ACTION FAIRNESS ACT OF 2003, S. Rep. No. 108-123, at 16 (2003), available at (in Section IV: criticizing “many so-called ‘coupon settlements’ in which class members receive nothing more than promotional coupons to purchase more products from the defendants. The record before the Committee is replete with examples, but the common theme is the same: the lawyers get cash, while the plaintiffs get coupons or less”) (in Section VI: “Abusive class action settlements in which plaintiffs receive promotional coupons or other nominal damages while class counsel receive large fees are all too commonplace.”) As an interesting side note, this article would have been moot if Senator Hatch had been successful in passing the 2003 version, which included a formula for distribution to named plaintiffs. See Statements of Introduced Bills and Joint Resolutions: Introduction Hearing on S. 274 Before the Senate, 108th Cong. S1876-77 (2003) (statement of Senator Hatch). 11. See Int’l Bd. of Teamsters v. U.S., 431 U.S. 324 (1977); Hazelwood Sch. Dist. v. U.S., 433 U.S. 299 (1977); Griggs v. Duke Power, Co., 401 U.S. 424 (1971).

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of equity in job opportunities and equality of treatment while on the job.”12 This intersection of the employment discrimination proofs with class action requirements resulted in courts acknowledging that EDCAs are among the most complex cases in our judicial system.13 But the legal climate in these early years after passage of Title VII was ripe for such ingenuity. The judiciary (led by the Supreme Court and Justice Thurgood Marshall) was sympathetic to parties trying to utilize the new tool Title VII provided.14 As the Seventh Circuit stated, “A suit for violation of Title VII is necessarily a class action as the evil sought to be ended is discrimination on the basis of a class characteristic i.e. race, sex, religion or national origin.”15 The newly adopted class action rules coincided perfectly with the new civil rights statute and courts’ eagerness to enforce it aggressively.16 Moreover, Congress continued to underline the importance of class litigation in eradicating workplace discrimination. The Equal Employment Opportunity Act of 1972 included provisions allowing charges to the EEOC to be filed “by or on behalf of a person claiming to be aggrieved.”17 The Senate Committee explicitly endorsed this provision by stating: This section is not intended in any way to restrict the filing of class complaints. The committee agrees with the courts that Title VII actions are by their very nature class complaints, and that any restriction on such actions would greatly undermine the effectiveness of Title VII.18

The 1960’s and 70’s witnessed inventive, industry-wide consent decrees that changed the business landscape, as courts applied liberal certification standards and a presumption toward certification.19 Commentators often cite this era as the “first generation” of Title VII 12. Sofia C. Hubscher, Making it Worth Plaintiffs’ While: Extra Incentive Awards to Named Plaintiffs in Class Action Employment Discrimination Lawsuits, 23 COLUM. HUM. RTS. L. REV. 463, 465-66 (1992). 13. See Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 720 (E.D.N.Y. 1989); accord Hubscher, supra note 12, at 465. 14. See Franks v. Bowman Transp. Co., 424 U.S. 747 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). 15. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969). 16. Prior to the amendments in 1991, Title VII provided only equitable relief (such as injunctive relief, back and front pay, and reinstatement) and fit nicely with Rule 23(b)(2), which existed for class actions seeking injunctive relief. 17. Rutherglen, supra note 8, at 716 (quoting S. 2525, 92d Cong., 1st Sess. § 5 (1971), pertinent portion reprinted in LEGISLATIVE HISTORY OF THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972, at 377 (1972)). 18. S. REP. NO. 92-415, at 27 (1971). 19. Samuel Issacharoff, When Substance Mandates Procedure Martin v. Wilks And The Rights Of Vested Incumbents In Civil Rights Consent Decrees, 77 CORNELL L. REV. 189 (1992) (tracking civil rights consent decrees in race discrimination cases); Brad Seligman, From Duke Power to Wal-Mart: Title VII Class Actions Then and Now, in 20 CIVIL RIGHTS LITIGATION AND ATTORNEY FEES ANNUAL HANDBOOK 1 (2004).

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cases.20 The late 1970’s and early 80’s saw a shift in judicial attitudes toward workplace discrimination. By this time, employers were less likely to discriminate overtly, such as by advertising that “Blacks Need Not Apply,”21 and the disparate impact standard created by the Supreme Court in Griggs v. Duke Power22 had yet to live up to its potential. Defendants became more inventive themselves in defending against such suits, while the judiciary became less friendly to plaintiffs.23 The beginning of the heightened judicial scrutiny of class certification can be seen in the Supreme Court’s decision of General Telephone Co. of Southwest v. Falcon.24 There, the Court explicitly rejected the assumption that discrimination cases were inherently compatible with class treatment and demanded a heightened scrutiny of plaintiffs and their ability to meet the class certification requirements of Rule 23.25 In 1989, the Supreme Court issued an aggressive group of opinions that narrowed plaintiffs’ ability to bring suit under Title VII by establishing new procedural bars.26 In a surprising turn of events, Congress responded by enacting the Civil Rights Act of 1991, amending Title VII by legislatively revising the Supreme Court’s narrow constructions of Title VII. The 1991 Act also expanded plaintiffs’ remedies to include compensatory and punitive damages, subject to a cap.27 20. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458 (2001). 21. See, e.g., Scott A. Moss, Women Choosing Diverse Workplaces: A Rational Preference with Disturbing Implications for Both Occupational Segregation and Economic Analysis of Law, 27 HARV. WOMEN’S L. J. 1, 18 (2004) (quoting 1980’s case law stating that, “‘[t]he days of Bull Connor are largely past; discrimination now works more subtly.’ Because antidiscrimination laws by now are wellknown, discrimination has gone underground; ‘“employers are rarely so cooperative as to include a notation in the personnel file” that the firing is for a reason forbidden by law.’”) (citations omitted); Sturm, supra note 20, at 459-60. 22. Griggs v. Duke Power, Co., 401 U.S. 424, 435-36 (1971). 23. Employment cases have always taken a disproportionate amount of docket space and the response has been a growth in judicial hostility. See Anne Lawton, The Meritocracy Myth and the Illusion of Equal Employment Opportunity, 85 MINN. L. REV. 587 (2000) (citing disproportionate summary judgment against discrimination plaintiffs); Minna Kotkin, Invisible Settlements, Invisible Discrimination, 84 N.C. L. REV. 927, 931 n.15 (2006) (collecting examples of federal judges’ complaining about employment discrimination cases burdening their dockets). 24. 457 U.S. 147, 163 (1982) (Burger, C.J., concurring in part and dissenting in part) (“Like so many Title VII cases, this case has already gone on for years, draining judicial resources as well as resources of the litigants. Rather than promoting judicial economy, the ‘across-the-board’ class action has promoted multiplication of claims and endless litigation.”). 25. See id. at 157-58. 26. See Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989) (limiting reach of the Civil Rights Act of 1964 and 42 U.S.C. § 1981); Lawrence v. AT&T Technologies, Inc., 490 U.S. 900, 911 (1989) (holding that statute of limitations to challenge seniority system begins to run when system adopted). 27. 42 U.S.C. § 1981a(b)(3).

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Following the Civil Rights Act of 1991, a new era of EDCAs witnessed the first $100 million-plus settlements against such major institutions as State Farm, Shoney’s, Lucky Stores, Coca Cola, Texaco, and Home Depot.28 The corporate landscape was changing again. The consent decrees stemming from these settlements included extensive injunctive relief, which required close monitoring by third parties and courts, and new and improved avenues for employees in protected categories (such as women and minorities) in hiring and management.29 This welcome change for employee advocates was soon eclipsed by a jurisprudential storm that questioned whether Title VII class actions that pled compensatory and punitive damages (as opposed to solely injunctive relief) could continue to be certified under Rule 23. The Fifth Circuit was the first appellate court to issue an opinion, deciding in Allison v. Citgo Petroleum that any Title VII class action that did plead compensatory and punitive damages could not be certified under Rule 23(b)(2).30 The court went a step further and decided that such a case was also unsuitable for certification under Rule 23(b)(3) because it necessarily raised too many individual issues for class treatment.31 The Allison decision was closely followed by decisions in the Sixth Circuit32 (agreeing with the Fifth), the Second and Ninth Circuits33 (rejecting Allison), and the Seventh and D.C. Circuits34 (approving a “hybrid” approach of certifying claims for equitable relief under (b)(2) and claims for monetary relief under (b)(3)). The Supreme Court has yet to weigh in. The circuits and the scholarly views remain deeply split on this matter.35 28. See Lesley Frieder Wolf, Evading Friendly Fire: Achieving Class Certification After the Civil Rights Act of 1991, 100 COLUM. L. REV. 1847, 1847 n.3 (2000) (citing multi-million dollar settlements against employers such as Home Depot, Boeing, Amtrak, and others); Seligman, supra note 19, at 9; see also Price Waterhouse v. Hopkins, 490 U.S. 228, 264-65 (1989) (O’Connor, J., concurring) (noting that discrimination lawsuits implicate not merely private rights but rather deprivations of the public interest in equal opportunity); Eisenberg & Miller, supra note 4 (thirteen reported cases between 1993 and 2002). 29. See, e.g., Roberts v. Texaco, Inc., 979 F. Supp. 185 (S.D.N.Y.1997). 30. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 416 (5th Cir. 1998). 31. See id. at 422. 32. Bacon v. Honda of Am. Mfg., Inc., 205 F.R.D. 466, 486 (S.D. Ohio 2001), aff’d 370 F.3d 565 (6th Cir. 2004). 33. Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir. 2003); Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir. 2001). 34. Lemon v. Int’l Union of Operating Eng’rs, Local 139, 216 F.3d 577, 581 (7th Cir. 2000); Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894, 899 (7th Cir. 1999); Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997). 35. Meghan E. Changelo, Reconciling Class Action Certification With the Civil Rights Act of 1991, 36 COLUM. J.L. & SOC. PROBS. 133 (2003) (maintaining that the Allison court got it wrong); Hart, supra note 1, at 813; Suzette M. Malveaux, Fighting To Keep Employment Discrimination Class Actions Alive: How Allison v. Citgo’s Predomination Requirement Threatens to Undermine Title VII Enforcement, 26 BERKELEY J. EMP. & LAB. L. 405 (2005) (maintaining that the Allison court got it

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Thus, the status of, and the attitudes of the courts towards EDCAs remain in great flux. This uncertainty deters the filing of EDCAs, especially in the circuits most clearly reining in such cases. 36 III. THE CURRENT NEED FOR PROSECUTION OF EMPLOYMENT DISCRIMINATION CLASS ACTIONS The kinds of discrimination workers are subjected to today underscore the need for continued class litigation. While not exhaustive, these sectors provide examples of current barriers faced by today’s workers. A. Disparate Impact Analysis In modern jurisprudence, courts require employment discrimination plaintiffs to prove that employers acted unlawfully through one of two analyses: disparate treatment or disparate impact.37 In a disparate treatment claim, plaintiffs must show that they were treated unlawfully because of their race, gender, or other protected status.38 Under this theory, plaintiffs must prove that the employer’s actions were motivated by the protected status. In contrast, a typical disparate impact claim challenges a hiring practice or policy of an employer, such as applicant testing or subjective decision making by the employer that is not intentionally discriminatory but that disproportionately excludes women or racial minorities.39 Employees often challenge the employer’s subjective hiring, pay, and promotion practices that negatively impact women and minorities through a disparate impact analysis.40 These claims that a class of employees or wrong); Jon Romberg, The Hybrid Class Action as Judicial Spork: Managing Individual Rights in a Stew of Common Wrong, 39 J. MARSHALL L. REV. 231 (2006) (recognizing the circuit split and arguing both sides are wrong); W. Lyle Stamps, Getting Title VII Back On Track: Leaving Allison Behind For the Robinson Line, 17 BYU J. PUB. L. 411 (2003) (maintaining that the Allison court got it wrong). 36. Kotkin, supra note 23, at 931 n.15 (recounting examples of federal judges’ hostility to employment discrimination claims, including one federal judge referring to such cases as “skunk work”); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 163 (Burger, C.J., concurring in part and dissenting in part) (“Like so many Title VII cases, this case has already gone on for years, draining judicial resources as well as resources of the litigants. Rather than promoting judicial economy, the ‘across-the-board’ class action has promoted multiplication of claims and endless litigation.”) 37. For a recitation of the U.S. Supreme Court’s distinctions between disparate impact and disparate treatment, see Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53 (2003); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977). 38. Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993) (discussing disparate-treatment claims in the context of the Age Discrimination in Employment Act of 1967). 39. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645-46 (1989) (superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071 (codified at 42 U.S.C. § 2000e-2(k)). 40. See Melissa Hart, Subjective Decision Making and Unconscious Discrimination, 56 ALA. L. REV. 741, 742 (2005).

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applicants is targeted and harmed are intrinsically suitable to the class action vehicle. A recent and stark example of a class-wide disparate impact claim is the Dukes v. Wal-Mart Stores, Inc. litigation, in which the District Court for the Northern District of California certified a nation-wide class consisting of more than 1.6 million female workers claiming that subjective promotion and pay practices were applied in a discriminatory fashion.41 In contrast, some courts have held that sufficiently decentralized employment decision making cannot be challenged in one class action, even if the plaintiffs allege common types of discrimination.42 In today’s workplace, where a handful of conglomerates employ increasing numbers of middleclass workers, the importance of being able to attack unfair labor practices on a class-wide scale cannot be overlooked. B. Off-site Discrimination Another current theme is “off-site” discrimination – companies that use middlemen or labor agents to employ contingent workers. Formerly “hidden” and relegated solely within the immigrant population,43 this practice is now more common throughout the employment landscape.44 Empirical research has shown that temporary workers hired through thirdparty employment agencies experience a higher rate of discrimination than workers of employers who do their own hiring.45 These workers have little bargaining power or knowledge of who is ultimately responsible for their working conditions. Accordingly, vindicating these workers’ rights is a challenge. While private attorneys have little incentive to prosecute their 41. See 222 F.R.D. 137, 143 (N.D. Cal. 2004); see also IMPACT FUND, at (follow “Dukes v. Wal-Mart Stores, Inc.” hyperlink) (last visited June 17, 2006); EQUAL RIGHTS ADVOCATES, at (last visited June 17, 2006). 42. See, e.g., Zapata v. IBP, Inc., 167 F.R.D. 147, 159 (D. Kan. 1996) (“the putative class fails to meet the commonality requirement inasmuch as plaintiffs have not presented any evidence of centralized employment decisionmaking.”). 43. See Ansoumana v. Gristede’s Operating Corp., 255 F. Supp. 2d 184, 187 (S.D.N.Y. 2003) (defendants hired primarily unskilled immigrants from West Africa to work as delivery workers for Duane Reade); Marjorie S. Zatz, Using and Abusing Mexican Farmworkers: The Bracero Program and the INS, 27 LAW & SOC’Y REV. 851 (1993). 44. See Balandran v. Lab. Ready, Inc., 22 Cal. Rptr. 3d 441, 442 (Ct. App. 2004) (female applicants brought discrimination suit against temporary employment service, claiming the service illegally agreed to send only male workers); Bruce Goldstein et al., Enforcing Fair Labor Standards In The Modern American Sweatshop: Rediscovering The Statutory Definition of Employment, 46 UCLA L. REV. 983, 988 (1999). 45. See ANNA P. NUNES & BRAD SELIGMAN, DISCRIMINATION RESEARCH CENTER, TREATMENT OF CAUCASIAN AND AFRICAN-AMERICAN APPLICANTS BY SAN FRANCISCO BAY AREA EMPLOYMENT AGENCIES; RESULTS OF STUDY UTILIZING “TESTERS” (July 1999), at .

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claims on an individual basis, it is economically feasible for them to pursue collective actions, which allow for greater recovery when a large group of workers suffer under identical, centralized, and unlawful corporate policies and procedures.46 C. Wage Gap between Sexes: the Glass Ceiling Remains Even the legal claims harkening back to the first gender discrimination suits continue to be litigated on a class basis today because empirical evidence shows that the wage gap has not closed and most employment commentators agree that discrimination, in all its forms, continues to plague American workplaces.47 One public interest group collected the following statistical data taken from 1997 U.S. Department of Labor, Bureau of Labor Statistics information: Women earned less than men in 99 percent of all occupations for which data is available; women in prestigious executive, administrative and managerial occupations earned 69.7 percent of what men earned; women in professional specialty occupations earned 75.0 percent of what men earned; and 76.8 percent of women who were medicine and health managers earned 74 percent of what men earned. 48 Compensation and promotion disparities in the legal field have not improved significantly in the last three decades, according to an extensive empirical study by Professors Nancy Reichman and Joyce Sterling.49 [U]nfortunately, recent data on the profession suggest that neither changes in the number of female law students nor changes in the number of female associates has substantially changed the profile of the profession. Despite the entry of substantial numbers of women and the successes of some exceptional ones, women are far more likely to encounter glass ceilings and sticky floors than to reach their professional potential.50

Finally, even apart from compensation and promotion disparities,

46. Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 89 (S.D.N.Y. 2001) (“This single issue predominates over all other factual and legal issues presented, because each proposed Plaintiff class member did substantially the same type of work, for the same type of employer, and was assigned in the same sort of way, during the relevant time period.”). 47. See, e.g., Christine Jolls, Is There a Glass Ceiling, 25 HARV. WOMEN’S L. J. 1 (2002) (cataloging empirical evidence of ongoing discrimination in contemporary labor markets). 48. Equal Rights Advocates, Pay Inequity, at (last accessed Nov. 8, 2006) (citing Census Bureau Current Population Reports, Series P-60; U.S. Commerce Department Source: U.S. Department of Labor, Bureau of Labor Statistics, 1997 Annual Averages; U.S. Department of Labor, Women’s Bureau, Equal Pay: A ThirtyFive Year Perspective, July 10, 1998). 49. Nancy J. Reichman & Joyce Sterling, Sticky Floors, Broken Steps, and Concrete Ceilings in Legal Careers, 14 TEX. J. WOMEN & L 27 (2004). 50. Id. at 29.

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there remains “a striking degree of occupational segregation by gender.”51 Various occupations remain over 95 percent male or over 95 percent female, and this segregation has become self-perpetuating, with women avoiding male-dominated fields, employers, or even specific departments for fear of unequal opportunities.52 Individual litigation has not been effective in combating persistent workplace discrimination. One case at a time, although important for the individual employee, does not effectively deter companies from systemic discrimination against women or people of color, especially with so many discrimination cases settled on a confidential basis for purely monetary relief.53 Instead, it is the threat of class-wide litigation, with the resulting larger damages calculations, sweeping (and expensive) injunctive relief, and public non-confidential resolutions, which provides a meaningful incentive for companies to monitor and investigate the impact of their policies and practices. IV. THE ROLE OF NAMED PLAINTIFFS IN EMPLOYMENT DISCRIMINATION CLASS ACTIONS AND THE BARRIERS THEY FACE An important ingredient of successful EDCAs is often overlooked in our literature: the role of the named plaintiffs. Yet their participation is critical to the success of these suits, as seen by the most recent round of Federal Rules amendments.54 Rule 23 requires that plaintiffs meet four prerequisites to maintain any suit as a class action: numerosity, typicality, commonality, and adequacy of representation.55 For class representatives, the rule requires that they show that their claims are typical of the claims of the class (the “typicality” requirement) and that they will “fairly and adequately protect the interests of the class” (the “adequacy of representation” requirement).56 With regard to settlement, Rule 23(e)(1)(C) requires that courts evaluate whether the proposed settlement is fair, adequate, and reasonable to all class members.57 The court makes this determination after holding a “fairness hearing,” listening to any objectors and reviewing the newly51. Moss, supra note 21, at 1 (emphasis added). 52. Id. at 3. 53. Kotkin, supra note 23. 54. See FED. R. CIV. P. 23 (amended 2003); Anthony Rollo & Gabriel A. Crowson, Mapping the New Class Action Frontier – A Primer on the Class Action Fairness Act and Amended Federal Rule 23, 59 CONSUMER FIN. L.Q. REP. 11, 11 (2005). 55. FED. R. CIV. P. 23(a). 56. Id. 57. See, e.g., FED. R. CIV. P. 23(e)(1)(C) & Comm. Notes on Rules – 2003 Amend. (Supp. 2003).

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mandated statement by parties that details “related undertakings that, although seemingly separate, may have influenced the terms of the settlement by trading away possible advantages for the class in return for advantages for others.”58 This mandatory disclosure is meant to reveal any “side agreements,” which could include any agreements concerning a class representative’s compensation. A. The Critical Difference Between the Role of Named Plaintiffs in EDCAs and Other Types of Class Actions Although the federal rules require that at least one named plaintiff participate in any class action, that person’s role will vary tremendously depending on the type of class action. The role of named plaintiffs in EDCAs is demanding, time intensive, and filled with many personal risks. Additionally, the EDCA named plaintiffs are litigating about their past (and sometimes current) employment histories that often include painful memories and emotional difficulties. In contrast, the named plaintiffs in consumer and securities class actions have none of these hurdles to face. An EDCA is typically born from an attorney’s intake from one employee who has information of systemic abuses by an employer. This begins a long investigation process by the plaintiff’s attorney that can take many months to conclude. During that time, the employee is an important fact witness, providing crucial information on the employment practices at issue in discrimination suits, including decision-making, promotion, and hiring practices, and managerial hierarchy. The employee is asked to submit to numerous interviews with class counsel in the investigation stage of the litigation. Once litigation begins, named plaintiffs are intimately involved with the case and class counsel. They provide input and review drafts of the charge of discrimination with the EEOC; engage in and respond to the investigation by the EEOC; provide input and review drafts of the complaint; respond to specific and detailed document demands; respond to numerous and detailed interrogatories; and sit through one or several days of deposition, plus days of preparation for such depositions.59 58. FED. R. CIV. P. 23(e)(2) & Comm. Notes on Rules – 2003 Amend. (Supp. 2003). 59. See, e.g., Western Elec. Co., v. Stern, 544 F.2d 1196, 1199 (3d Cir. 1976) (overturning district court’s denial of discovery from named plaintiffs); Carnegie v. Mut. Sav. Life Ins. Co., No. Civ.A.CV99S3292NE, 2004 WL 3715446, at *24 (N.D. Ala. Nov. 23, 2004); In re S. Ohio Corr. Facility, 175 F.R.D. 270, 275 (S.D. Ohio 1997); Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995); Women’s Comm. for Equal Emp. Opportunity v. Nat’l Broadcasting Co., 76 F.R.D. 173, 182 (S.D.N.Y. 1977); MANUAL FOR COMPLEX LITIGATION, FOURTH § 32.436 (2004) (noting the duties of named plaintiffs to submit to discovery); Brenda Berkman, et al., Roundtable Discussion, 26 FORDHAM

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The named plaintiffs become the “faces” of the absent class members by telling their stories in the pleadings and in the discovery phase. The named plaintiffs’ stories bring the statistics and the corporate operating systems “alive” to the fact finder.60 The effort by named plaintiffs includes both time and emotional costs. Litigation is not for the faint-hearted. As with individual litigation, counsel must inform the named plaintiffs of each litigation strategy, and the named plaintiffs have input into that strategy. Commentators have suggested that the named plaintiffs do not have meaningful input and that they tend to yield to class counsel on all substantive matters. 61 However, these critiques are more relevant to the consumer class model where the named plaintiff has only a nominal stake in the outcome. In an employment discrimination matter, the stakes are high because one’s ability to earn a living and one’s workplace status are at issue. Such importance contributes to the quality of the dialogue between counsel and named plaintiffs, and the sophistication of the named plaintiff is often markedly higher than the average consumer.62 Once a settlement agreement, consent decree, or court order has been put into place, the named plaintiffs’ duties continue. They are instrumental in ensuring that the agreement between the parties is fair to all class members by examining not only the proposed monetary relief (if any), but also the effectiveness and probability of success of the injunctive relief provisions and long-term planning of the consent decree.63 Judicial requirements necessitate that named plaintiffs participate in all settlement decisions and in the fairness hearing before the court, in order to ensure the agreement or judgment is fair to all class members – named and absent.64 The fairness hearing is a particularly important procedure that named plaintiffs participate in because it is at this hearing that the court looks closely at the negotiations, terms and conditions, and monetary relief to ensure fairness. URB. L.J. 1355, 1359 (1999) (discussing the time commitment and personal risk named plaintiffs in gender discrimination class action). 60. See, e.g., {Women’s Comm. for Equal Emp. Opportunity,} 76 F.R.D. at 182; Nichols v. SmithKline Beecham Corp., 2005-1 Trade Cas. (CCH) ¶ 74,762 (E.D. Penn. 2005); Purdie v. Ace Cash Express, Inc., No. Civ.A. 301CV1754L, 2003 WL 22976611, at *7 (N.D. Tex. Dec. 11, 2003). 61. See John C. Coffee Jr., Understanding the Plaintiff’s Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 COLUM. L. REV. 669, 678-79 (1986). 62. See John J. Donohue III & Peter Siegelman, The Changing Nature of Employment Discrimination Lawsuits, 43 STAN. L. REV. 983, 993-94 (1991); Hubscher, supra note 12, at 470. 63. Holden v. Burlington Northern, Inc., 665 F. Supp. 1398, 1422 (D. Minn. 1987); see also MANUAL FOR COMPLEX LITIGATION, FOURTH, supra note 59. 64. FED. R. CIV. P. 23(e).

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The risks – professional, financial, and personal – that named plaintiffs bear are also substantial. For a current employee, risk of retaliation by her employer, including losing her job or being assigned less favorable tasks and responsibilities, is a real threat. Also, the named plaintiff can expect to be ostracized from co-workers and experience general discomfort at the workplace. This aspect gains importance when viewed in conjunction with the fact that most employees spend a significant amount of their waking hours at work, and that our self-respect and selfidentify are often tied to our work. For former or departing employees, in many industries, named plaintiffs find themselves on a “black list” and find future employment in their chosen field difficult. Even without the threat of being “black listed,” former employees often have difficulties with their resumes and references, given their legal struggle with a former employer. In contrast, virtually none of the above is true of many consumer or securities class actions. In many consumer or securities class actions, the classes are so large that there are low individual stakes,65 which result in limited interest by the named plaintiffs. These cases do not require that the named plaintiffs share personal life stories, nor do their depositions require several days of testimony. It is hard to imagine a consumer or securities class action plaintiff who suffers nearly as much (or any) risk, in comparison to what is brought upon an EDCA plaintiff in ostracism, retaliation, blacklisting, and loss of selfidentity. In short, the named plaintiffs in consumer and securities class actions stand to gain little and risk nothing because of the nature of these claims, which stands in sharp contrast to the risks taken by named plaintiffs in EDCAs. B. The Case for Awarding Named Plaintiffs in EDCAs One way in which we support prosecution of civil rights laws is to award fees to private attorneys. By providing statutory fees, in laws such as Title VII, the legislature encourages “private attorney generals” to pursue socially desirable litigation, as well as compensate them for their expended efforts and assumed risks in prosecution of these difficult, and sometimes unsuccessful, cases.66 Early on, in 1968, the Supreme Court recognized the 65. See HATCH, supra note 10 (in Section VI: finding that in consumer class actions, the stakes are too low to provide incentive for named plaintiffs to monitor the case); Alexandra Lahav, Fundamental Principles For Class Action Governance, 37 IND. L. REV. 65, 126 & n 283 (2003) (acknowledging that “direct and active class member participation is impossible because in consumer class actions participation is too expensive in relation to the interests at stake” and contrasting that to the higher stakes available in civil rights actions). 66. Stephen C. Yeazell, Collective Litigation as Collective Action, 1989 U. ILL. L. REV. 43, 60

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risks undertaken by the attorneys acting as private attorney generals and the public benefits from their prosecution of these cases in Newman v. Piggie Park Enterprises.67 Some commentators have suggested that attorneys as private attorney generals are actually organized group advocates.68 This characterization bears out when one considers the number of private attorneys teaming with non-profit legal organizers in prosecution of large-scale, public-interest class actions, such as the national gender discrimination class action against Wal-Mart, which is a joint-prosecution by several private attorneys and two nationally known non-profits.69 However, attorneys cannot act alone in pursuing civil rights litigation. The named plaintiffs are necessary participants in the prosecution of EDCAs, and they, along with class counsel, must be incentivized to participate. A natural extension of the fees awarded to attorneys in prosecuting private attorney general matters is to likewise provide compensation for the named plaintiffs, who initiate the suit, take substantial risks, and expend tremendous effort on behalf of the class. The named plaintiffs are a required piece of the class action vehicle, mandated by the courts to participate in every part of the case from beginning to end. By encouraging the employees who were discriminated against to work in the capacity of class representatives, incentive payments further the judiciallyrecognized goal of facilitating public-interest litigation. Additionally, when employees have a more direct stake in the outcome of a matter, they are more likely to work harder in the fact-finding and strategic planning of the case. Having named plaintiffs invested in the litigation furthers the integrity of the class action mechanism by refuting the criticism that attorneys drive the litigation without meaningful thought to their clients’ best interests, as well as supporting truth-finding through their ability to contribute to the development of the facts in the investigation and discovery process. To promote this critical participation by named plaintiffs, these (1989); Graybeal, supra note 2, at 353; Hubscher, supra note 12, at 475. But see John H. Beisner, et al., Class Action “Cops”: Public Servants or Private Entrepreneurs?, 57 STAN. L. REV. 1441, 1451 (2005). 67. 390 U.S. 400, 402 (1968) (per curiam). 68. Bryant Garth et al., The Institution of the Private Attorney General: Perspectives From an Empirical Study of Class Action Litigation, 61 S. CAL. L. REV. 353, 358 (1988). 69. See Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 139-40 (N.D. Cal. 2004); Liu v. Donna Karan, Int’l, 207 F. Supp. 2d 191 (S.D.N.Y. 2002); EQUAL RIGHTS ADVOCATES, at (last visited June 17, 2006); IMPACT FUND, at (follow “Dukes v. Wal-Mart Stores, Inc.” hyperlink) (last visited June 17, 2006); NATIONAL EMPLOYMENT LAW PROJECT, at (follow “Litigation” hyperlink; then follow “Ansoumana v. Gristedes, Grocery Workers’ Complaint” hyperlink).

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current and former employees must be offered an incentive for the effort and risk associated with such representation. It is only through sizeable, non-de minimis awards can we expect that employees will be willing to come forward and contribute in these crucial ways. V. THE JUDICIAL RESPONSE TO INCENTIVE PAYMENTS TO NAMED PLAINTIFFS In the thirty or so years of evaluating incentive payments to named plaintiffs, the courts have been so inconsistent as to provide little to no guidance. Accordingly, parties negotiating settlement agreements and consent decrees have no firm precedent to inform them how to craft appropriate incentive awards that stand a good chance of being upheld by the courts. With cases applying widely varying analyses with no discernible pattern, the case law provides no actual predictability, just a wholly malleable range of citations for any conclusion a party or court wishes to make.70 This uncertainty results in disparate outcomes that at first glance, make little sense upon reviewing the landscape of EDCA case law.71 A closer look at the case law reveals the genesis of the problem. Starting in the 1970’s, federal courts began evaluating incentive payments to named plaintiffs in all types of class actions, relying on numerous justifications for the awards. In doing so, judges failed to discern the difference between evaluating an award to an employment discrimination class representative, and one to any other named plaintiff in different kinds of class actions. As a result, the special considerations for granting these awards in employment discrimination cases were either lost or muddied by considerations more appropriate to other types of class actions, such as consumer or securities litigation. I propose that there are five distinct models that reflect the different ways in which courts treat incentive payments to named plaintiffs in class actions. There are three limiting models of “disincentive,” reflected by the many courts utilizing a rationale for limiting incentive payments, which are inapplicable and unpersuasive in the employment discrimination context: the Bounty Model; the Restitutionary Model; and the Fiduciary Model. There are two models that properly reflect the civil rights initiative: the 70. Cf. Scott A. Moss, Where There’s At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At Will, 67 U. PITT. L. REV. 295, 341 (2006) (criticizing courts deciding common-law employment claims for “adopting an unhelpful standard whose main appeal is that it is vague and indeterminate enough to be arguably consistent with both the old strict rule and the newer exceptions . . . . Unless courts adopt clear, well-defined principles for applying certain limitations to employment at will, the evolving doctrine may remain murky and unpredictable for a long time.”). 71. Eisenberg & Miller, supra note 4, at 1 (noting inconsistencies in EDCA outcome).

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Public Policy Model and the Award Model. In reviewing these models as they emerged in the EDCA jurisprudence, it becomes evident that courts too often confuse the purposes of incentive payments in different causes of actions, losing the primary incentive for employment discrimination litigation. A. The Judicial Response as Disincentive for Named Plaintiffs 1. The Bounty Model The Bounty Model reflects the concern of some courts that named plaintiffs should not be granted any “special” award because such awards would create a class of “bounty hunters” who would hunt down proposed class actions and become professional plaintiffs. Such bounty- seeking plaintiffs would leverage their position of power and compromise the settlement negotiations to their own advantage. In In re Gould Securities Litigation,72 the Northern District of Illinois evaluated the merits of incentive payments to five named plaintiffs in a securities fraud class action. The proposed settlement fund amounted to ten million dollars; the named plaintiffs were requesting $5,000 and $8,000 awards each. The court denied the awarding of the proposed incentive awards, fearing that such awards would create a “real danger” that “every named plaintiff would expect a ‘fee’ or ‘bounty’ for the use of his or her name to create class action.”73 The court was persuaded that: “It is not difficult to envision a scenario, . . . of prospective named plaintiffs becoming involved in a bidding war (with the ante spilling upward for their ‘services’) with prospective class counsel.”74 For this court, the threat of bounty-hunting plaintiffs, who would seek easy pay-outs, loomed large.75 The concern voiced by this judge in the securities arena echo all the way to 2003, when it found a home in an EDCA case in what is commonly thought of as the most liberal of courts, the Ninth Circuit Court of Appeals. In Staton v. Boeing Co.,76 the court reversed a district court’s approval of a race-based employment discrimination consent decree based, in part, on the 72. 727 F. Supp. 1201, (N.D. Ill. 1989). 73. Id. at 1209. 74. Id. 75. This is not the only court in a securities action to find this argument appealing. See In re Presidential Life Secs., 857 F. Supp. 331, 337 (S.D.N.Y. 1994) (noting that excessive payments of incentives in class suits based on alleged securities law violations could have the effect of creating a potential pool of ready-to-sue clients who could afford to have sufficient stock in any number of companies). 76. 327 F.3d 938, 975-76 (9th Cir. 2003).

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decree’s award to the named plaintiffs. Concerned about the motives of named plaintiffs, the Ninth Circuit determined: Generally, when a person “join[s] in bringing [an] action as a class action . . . he has disclaimed any right to a preferred position in the settlement.” Were that not the case, there would be considerable danger of individuals bringing cases as class actions principally to increase their own leverage to attain a remunerative settlement for themselves and then trading on that leverage in the course of negotiations.77

In Staton, the Ninth Circuit likewise operated under a perception of named plaintiffs as bounty-seeking opportunists. However, it is important to remember that this perceived threat of predatory plaintiffs derives from securities or consumer credit suits, where anyone can be a shareholder or consumer. The theory has little to no application in the context of employment discrimination, where the proof threshold is set high, much is demanded of named plaintiffs, and plaintiffs must meet a certain profile of class of employee in a certain time period for a certain employer. Unlike a shareholder, who can buy multiple stocks at any given time, and a consumer, who can purchase any number of products without limit, an employee or applicant must have been subjected to particular practices and fit the particular employer requirements for the job. Accordingly, the likelihood of repeat plaintiffs making a career of suing employers for discriminatory practices is very slim. Therefore, the threat of a “bounty hunter” in the employment discrimination context is empty. Yet, this is one example of employment discrimination courts justifying their denials of incentive awards based on reasoning that applies far more meaningfully to other class litigations.78 2. The Restitutionary Model Another way courts evaluate incentive payments to named plaintiffs is by reviewing their actual contribution to the prosecution of the action. Restitution is a concept of relief that sets the value of the remedy to equal the conferred benefit. Accordingly, the reviewing court will grant incentive payments that are commensurate with the amount of time and effort put forth by the named plaintiffs, but will decline to enforce agreements or order payment to named plaintiffs whose efforts are de minimis. The implicit reasoning of these courts is that named plaintiffs are available in an endless supply and “the market would have produced a named plaintiff willing to charge a price of zero.”79 77. Id. at 976 (internal citations omitted). 78. See also In re S. Ohio Corr. Facility, 24 Fed. Appx. 520, 526 (6th Cir. 2001). 79. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992).

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The most lucid explanation of this theory was penned by Judge Posner in In re Continental Illinois Securities Litigation, a securities class action arising from defaulted loans.80 Judge Posner first explained the theory of restitution: “If you dive into a lake and save a drowning person, you are entitled to no fee. The named plaintiff is not a professional; he is, at most, a public-spirited member of the class.”81 However, Judge Posner went on to recognize that “without a named plaintiff, there can be no class action,” as justification for the litigation expense of an award to the named plaintiff. Such award, however, must comport with Judge Posner’s notions of restitution; he therefore rejected the award proposed because “plaintiff . . . failed to prove his entitlement to a fee” where he only participated in a deposition that lasted “a few hours.”82 For Judge Posner, such a poor showing of time and effort put into the cause of action was justification for denying an award altogether. Similarly, Judge Frank Easterbrook, well known as an advocate of applying economic theory to law, rejected any incentive payments where no payments are needed to provide an “incentive” for plaintiffs to come forward, such as where the plaintiff stands to gain millions.83 Another example of restitution-based reasoning comes from the Eastern District of Pennsylvania, where the court concluded that incentive payments of $25,000 to two named plaintiffs in a civil RICO, pyramidinvesting scheme were proper “for services rendered because plaintiffs’ counsel would have been required to retain others to perform such services at a cost in excess of that amount.”84 Indeed, in the securities class litigation arena, the concept of payment for time proven to be rendered is a common theme. As a court in the Southern District of New York explained, a named plaintiff who cannot 80. Id. 81. Id. at 571. 82. Id. at 571-72. The court also made note that he bore only a “slight risk of being made liable for sanctions, costs or other fees should the suit go dangerously awry.” 83. See In re Synthroid Mktg. Litig., 264 F.3d 712, 722-723 (7th Cir. 2001) (denying any incentive award to named plaintiff that was an insurance company (third-party payer, or “TPP”) alleging excessive prices for pharmaceuticals). Incentive awards are justified when necessary to induce individuals to become named representatives. But if at least one TPP would have stepped forward without the lure of an “incentive award,” there is no need for such additional compensation . . . . [T]he prospect of recovery created enough incentive for the representative TPPs to step up even without an additional award for doing so. The market rate for incentive reimbursements here is accordingly zero. Id. 84. Hanrahan v. Britt, 174 F.R.D. 356, 369 (E.D. Pa. 1997); see also In re U.S. Bioscience Secs. Litig., 155 F.R.D. 116, 122 (E.D. Pa. 1994) (holding that plaintiffs are only to be awarded their market value of time served).

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produce contemporaneous records of his time spent in assistance to the case should not recover the bulk of his request.85 This reasoning is fairly applicable in the context of multitudes of investors, whose position is interchangeable with the many other investors able to take the mantle of class representative if need be, and therefore, it is only the benefit conferred that is justly rewarded. This limited conception of the rationale for incentive payments has no application to an EDCA, where the named plaintiffs are the “face” of the litigation, and have assumed a tremendous amount of personal risk to vindicate their rights and the rights of other similarly-situated employees. Said another way, securities named plaintiffs risk nothing, while employment discrimination named plaintiffs risk everything: their livelihood, their future employability, and their security. An incentive award that reflects merely the value of their time not only fails to recognize their important role and the major risks they have assumed in being named plaintiffs, but also fails to provide an adequate incentive to continued prosecution of these types of cases. Yet the courts confuse the essential difference between these types of cases when they require EDCA named plaintiffs to prove considerable amounts of time and effort to be awarded incentive payments. For example, in a 2002 Title VII race discrimination suit, a court in the Southern District of New York invoked the restitutionary basis in examining (and subsequently significantly reducing) proposed incentive payments. 86 A powerful basis for separate awards to named plaintiffs in class action settlements is the need to reimburse them for specific expenses they have incurred, including out-of-pocket costs of asserting the litigation, the use of leave time in order to attend depositions and other such costs. Although I invited plaintiffs’ counsel to support the requested payments (at least in part) by providing such information, counsel has declined to provide any.87

Likewise, other courts have rejected incentive awards altogether, in part because the named plaintiffs could not show any significant time expended.88 Indeed, one federal court reduced an incentive payment by roughly 75 percent after reviewing documentation of actual time spent.89 By requiring evidence of substantial and substantiated time and effort, 85. Genden v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 700 F. Supp. 208, 210 (S.D.N.Y. 1988). 86. Sheppard v. Consol. Edison Co., No. 94-CV-0403(JG), 2002 WL 2003206, at *6 (E.D.N.Y. Aug. 1, 2002). 87. Id. 88. See, e.g., Van Vranken v. Atl. Ritchfield Co., 901 F. Supp. 294, 300 (N.D. Cal. 1995). 89. Pozzi v. Smith, 952 F. Supp. 218, 227 (E.D. Pa. 1997).

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the courts draw on the restitutionary basis utilized in securities and other contexts that have little relevance in employment discrimination. At least one court has adopted this reasoning that “there is a fundamental distinction between litigation based on claims of racial, gender or other discrimination, and securities-based litigation or antitrust suits – the primary reported instance in which incentive awards have been sought.”90 3. The Fiduciary Model Another way in which the courts use a disincentive model is to rely heavily on the named plaintiffs’ role as fiduciary to the entire class and therefore require strict parity in relief between the named plaintiffs and the unnamed class members. Courts laboring under this model express great concern with the possibility of “collusion” between the class counsel and named plaintiffs in committing “fraud” on the class by agreeing to a settlement that is overly generous to counsel and named plaintiffs but unfair to the rest of the class. Essentially, this model views incentive payments with suspicion rather than as presumptively appropriate inducements to serve in the named plaintiff role.91 Unlike the previous two models that stem from other, unrelated causes of action (such as securities and consumer actions), the genesis of fear in this area is the settlement vehicle itself. Because settlement negotiations are between the parties and named plaintiffs without input of unnamed class members, the courts fear that “[t]he interest of lawyer and class may diverge, as may the interests of different members of the class, and certain interests may be wrongfully compromised, betrayed or ‘sold out.’”92 Judicial fear of collusion and fraud among the parties can be traced back to the earliest judicial review of EDCA settlements. For example, the oft-cited 1977 decision by the Southern District of New York in Women’s Committee for Equal Employment Opportunity v. National Broadcasting Co.93 plainly expressed fear of the settlement vehicle which it characterized as “representative plaintiffs make what amounts to a separate peace with defendants,” “grave problems of collusion are raising.”94 This court reasoned that a settlement that provides for equal terms among the named plaintiffs and class members would provide courts with a “stronger 90. Roberts v. Texaco, Inc., 979 F. Supp. 185, 201 (S.D.N.Y. 1997) (internal parentheses omitted). 91. See HATCH, supra note 10 (in Section IV: noting class action abuses in the consumer context). 92. Plummer v. Chem. Bank, 668 F.2d 654, 658 (2d Cir. 1982) (Title VII class action) (citing Pettway v. Am. Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978)). 93. 76 F.R.D. 173, 180 (S.D.N.Y. 1977). 94. Id.

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indication of the acceptability of the settlement.”95 The courts of appeals have echoed these concerns. As the Eleventh Circuit announced, “[W]here representative plaintiffs ob- tain more for themselves by settlement than they do for the class for whom they are obligated to act as fiduciaries, serious questions are raised as to the fairness of the settlement to the class.”96 Indeed, if a named plaintiff is given any sort of “preferred position,” the Sixth Circuit believes that a district court should have been “signaled” to “potential inequities” in any proposed settlement.97 More recent district court decisions also parrot this conservative approach, in which an unproven risk of collusion always can counter any considerations in favor of incentive payments, justifying downward departures in reviewing and revising the proposed incentive awards.98 The generalized fear is that “[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 interest they are appointed to guard.”99 Denying incentive payments to named plaintiffs for their work, however, values a perception of lockstep equality as opposed to acknowledging the named plaintiffs’ risks and costs. Strict adherence to parity among the named plaintiffs and class members is not valuable aside from perceptions of fairness. If courts are concerned with perceived fairness to unnamed class members, a summary of reasons for the award in class notice and order or consent decree is sufficient to dispel the appearance of impropriety. After all, it is the courts’ role to ensure fairness, and fairness is provided for through the courts’ pursuit of extensive and detailed findings on the settlement and negotiations during fairness hearings. Moreover, strict parity does not reflect the reality of the services named plaintiffs provide, nor does it reflect the truth of their discrimination experience. Often, the named plaintiffs are the “faces” of the suit because their stories are salient examples of the type of discrimination faced by employees. They deserve a more tailored compensation award because of 95. Id. at 181. 96. Holmes v. Cont’l Can Co., 706 F.2d 1144, 1148 (11th Cir. 1983) (quoting Plummer v. Chem. Bank, 91 F.R.D. 434, 441- 42 (S.D.N.Y. 1981), aff’d, 668 F.2d 654 (2d Cir.1982)). 97. Franks v. Kroger Co., 649 F.2d 1216, 1226 (6th Cir. 1981). 98. See, e.g., Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693-94 (N.D. Ga. 2001); In re Gould Secs. Litig., 727 F. Supp. 1201, 1209 (N.D. Ill. 1989); Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713 (E.D.N.Y. 1989). 99. Weseley, 711 F. Supp. at 720.

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these factors, as well as their public service in ending workplace unfairness. B. Incentive Payment Models That Reflect the Civil Rights Initiative As courts continue to justify their downward departures to, or rejections of, incentive award proposals based on justifications that are unrelated to employment discrimination claims, there remain hidden in the jurisprudence valid, easily applicable standards for granting robust incentives to named plaintiffs in EDCAs. This section elaborates two models – the Public Policy and Award models – that encompass appropriate considerations in the employment discrimination context. The roots for this justification are alive in the existing case law, albeit hidden because they are buried among the securities and consumer action disincentive award decisions. By ferreting out these rationales for robust incentives, this section provides a roadmap for courts to rely on these justifications for awarding appropriate awards that reflect both the effort expended and the benefit conferred by the named plaintiffs in EDCAs. 1. The Public Policy Model Instead of focusing on justifications that are reasonable only in other types of non-discrimination actions, and on maintaining the appearance of parity, courts should first and foremost recognize the contributions named plaintiffs make in furthering the statutory goals of Title VII. As set forth in Parts II and III, Title VII is the vehicle by which invidious discrimination in the workplace is addressed, especially through the class action mechanism. This is why courts recognize the “private attorney general” model that justifies rewarding class counsel.100 Implicit in this reasoning is the recognition that prosecution of Title VII’s statutory goals by the named plaintiffs should also be rewarded. Despite the statutory goals supporting these types of awards, courts do not often explicitly rely on the societal benefits of workplace fairness that named plaintiffs bring in evaluating these awards. Support for this proposed model derives from the early Title VII case law, such as the Sixth Circuit’s decision in Thornton v. East Texas Motor Freight.101 The court in Thornton recognized “that there is something to be said for rewarding those [employees] who protect and help to bring rights to a group of employees who have been the victims of discrimination.”102 100. See Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (per curiam). 101. 497 F.2d 416 (6th Cir. 1974). 102. Id. at 420; see also Bryan v. Pittsburgh Plate Glass Co., 59 F.R.D. 616, 617 (W.D. Pa. 1973),

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Following Thornton, a handful of courts cited this public policy language in decisions evaluating incentive payments.103 However, while courts paid lip-service to the principle, they went on to evaluate incentive awards under the three previous models of bounty, restitution, and fiduciary considerations. For example, three years following the Thornton decision, the Southern District of New York in Women’s Committee for Equal Employment Opportunity v. NBC, cited the above quoted language, as well as the Supreme Court’s guidance in Piggie Park, which provided that plaintiffs should be encouraged to bring “private actions to further the policies of [Title VII].”104 The court took notice that “[i]t is undoubtedly true that the prospect of a substantial personal recovery will encourage aggrieved persons to bring lawsuits which are likely to advance the national policy of eliminating discrimination in employment.”105 However, the court then went on to evaluate the proposed incentive awards under the fiduciary model (as outlined above), focusing on a perceived need to “dispel the cloud of collusion” hanging over any class settlement.106 The court did so by considering six factors, incorporating the three disincentive models of bounty, restitution, and fiduciary concerns.107 Another example comes on the heels of Women’s Committee, in 1981, by the District Court for the District of Columbia in Luevano v. Campbell.108 In Luevano, the court also cited the public policy statement recited in Thornton, but went on to evaluate the award under the factors recited in Women’s Committee, with an emphasis on the concerns outlined by the securities and consumer actions.109 More recent court decisions echo this duality: reciting public policy considerations under Title VII, yet making awards based on other

aff’d, 494 F.2d 799 (3d Cir. 1974). 103. Roberts v. Texaco, Inc., 979 F. Supp. 185, 201 (S.D.N.Y. 1997); Luevano v. Campbell, 93 F.R.D. 68, 90 (D.D.C. 1981); Women’s Comm. for Equal Employment Opportunity v. Nat’l Broadcasting Co., 76 F.R.D. 173, 181 (S.D.N.Y. 1977). 104. 76 F.R.D. at 181. 105. Id. 106. Id. at 182. 107. The court considered the following factors: 1) effect of settlement as a whole on class members; 2) possibility of collusion; 3) objection to settlement made by class members; 4) whether class members who had already filed their own claims of discrimination would relinquish their option to do so as a result of the class settlement 5) contribution by named plaintiffs to the lawsuit and the social benefit of their suit; 6) policy in favor of amicable settlement of legal disputes in Title VII cases. Id.; see also Hubscher, supra note 12, at 478-79. 108. 93 F.R.D. 68 (D.D.C. 1981). 109. Id. at 90 (“monetary relief to the named plaintiffs . . . should not defeat final approval of the settlement.”).

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principles outlined in the bounty, restitution, and fiduciary models, which are compatible only with a disincentive theory.110 As discussed above, focusing primarily on the “disincentive” models gives short shrift to the significant Title VII policy goals that provide powerful justifications for incentive payments in EDCAs. 2. The Award Model Clearly, courts are uncomfortable with hanging their hat solely on policy grounds. Yet, additional, well-documented considerations militate in favor of granting non-de minimis awards to named plaintiffs in EDCAs, that accurately reflect the experience, effort, and benefit they confer. First, the personal risk that named plaintiffs take in becoming class representatives is substantial. Employment relationships are at the heart of our identity as Americans. We are conditioned to think of ourselves as productive workers, and those who complain of civil rights violations are not welcome employees. The risk of retaliation for current employees has been well-established, as is the risk of “black listing” in certain industries.111 Named plaintiffs become targets by virtue of their notoriety. For example, in Roberts v. Texaco, the Special Master made specific findings of risk and retaliation against the named plaintiffs and subsequently made recommendations that the district judge adopted, including: In discrimination-based litigation, the plaintiff is frequently a present or past employee whose present position or employment credentials or recommendation may be at risk by reason of having prosecuted the suit, who therefore lends his or her name and efforts to the prosecution of litigation at some personal peril.112

However, retaliation and loss of professional reputation are not always obvious from the facts before the court (nor are Special Masters often assigned to do this type of extensive fact finding). Retaliation is often subtle and hard to prove; shunning, shaming, and other types of nonactionable retaliatory behavior are common named plaintiff experiences.113

110. See Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998); Sheppard v. Consol. Edison Co., No. 94CV-0403(JG), 2002 WL 2003206 (E.D.N.Y. Aug. 1, 2002); Van Vranken v. Atl. Ritchfield Co., 901 F. Supp. 294 (N.D. Cal. 1995). 111. Roberts v. Texaco, Inc., 979 F. Supp. 185, 188 (S.D.N.Y. 1997); White v. Nat’l Football League, 822 F. Supp. 1389, 1406-07 (D. Minn. 1993); Sheppard v. Consol. Edison Co., No. 94-CV-403 (JG), 2000 WL 33313540, at *4 (E.D.N.Y. Dec. 21, 2000). 112. Roberts, 979 F. Supp. at 201. 113. See, e.g., Burlington Northern and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006) (crafting a broad definition of “retaliation” for Title VII purposes); Lo Re v. Chase Manhattan Corp., 19 Fair Empl. Prac. Cas. (BNA) 1366 (S.D.N.Y. 1979).

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Moreover, courts should recognize the financial risk that named plaintiffs assume. As noted by several courts, the financial risk of pursuing a class action includes the risk of paying counsel costs if the case is unsuccessful, as well as a risk of being liable under a Rule 68 offer of judgment if the case is found to be frivolous or in bad faith.114 Courts should recognize the risks and burdens associated with being named plaintiffs without having a special fact-finding of severe behavior. An example of this approach was taken in Huguley v. General Motors Corp., where the Eastern District of Michigan found that “[n]amed plaintiffs and witnesses are entitled to more consideration than class members generally because of the onerous burden of litigation that they have borne. I find this to be entirely fair.”115 Additionally, named plaintiffs should be rewarded for the added value they bring to EDCA litigation above and beyond the accounting of hours formulated in a restitutionary approach. Courts seldom recognize that the named plaintiffs bring important factual expertise to EDCAs, including necessary knowledge of the patterns and practices of the employers, a necessary component in many EDCAs.116 Information about the employer’s general decision making, promotion and hiring practices, and delegation of duties, are examples of the types of information about the employer that named plaintiffs provide, both in the investigative and discovery phases of the case. At the tail end, the advantage to class members is brought through named plaintiffs’ participation in settlement negotiations, consent decrees, and trials, which often results in increased employment benefits and workplace fairness for all class members. This added value that employment discrimination named plaintiffs bring to investigations, prosecutions, and judgments is not easily quantifiable in that a formulaic accounting of hours of time spent on the case does not reflect the nature of the benefits. Instead of taking a restitutionary account of the time spent, courts should make a finding that recognizes the full spectrum of benefits brought to the case by the named plaintiffs.

114. FED. R. CIV. P. 68; Roadway Express, Inc. v. Piper, 447 U.S. 752, 762 (1980) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)); Michael T. Jilka, Attorneys Fees in Civil Rights Cases, 74-DEC. J. KAN. B.A. 42, 42 (2005). 115. 128 F.R.D. 81, 85 (E.D. Mich. 1989) (race discrimination suit); see also Yap v. Sumitomo Corp., No. 88 Civ. 700(LBS), 1991 U.S. Dist. LEXIS 29112, at *4 (S.D.N.Y. Feb. 22, 1991). 116. For example, the court in Roberts v. Texaco, Inc., recognized the corporate information plaintiffs brought. 979 F. Supp. 185, 187 (S.D.N.Y. 1997).

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C. Recent EDCA Decisions Reflecting Disincentive Models In a recent survey, empiricist scholars Theodore Eisenberg and Geoffrey P. Miller studied 374 opinions of class action cases from 1993 to 2002.117 The study found that the rate of incentive payments awarded for employment discrimination cases was 46 percent, as opposed to in all class actions studied, in which incentive awards were granted in only 28 percent of cases.118 The authors describe the average award amount granted to named plaintiffs in EDCAs as being: statistically significant associated with large percentage incentive awards. . . . The substantial incentive awards observed in employment discrimination cases appear to reflect the courts’ wish to make representative plaintiffs whole by compensating them for the high costs of their service to the class, including risks of stigmatization or retaliation on the job.119

After an exhaustive look at all class action judgments in this ten year period, in multiple case categories, these scholars concluded that “[o]utside the private securities litigation context, courts seem to be policing these grants of incentive awards reasonably.”120 Recent judicial treatment of incentive payments in EDCAs does not support a conclusion that courts’ denial of incentive awards in the majority of EDCAs is “reasonable” if one takes into account the multitude of roles named plaintiffs play and the added benefits they convey. Awarding incentive payments to EDCA named plaintiffs in less than half of the studied class actions in the most recent ten year period does not seem reasonable on its face, when one takes into account the effort, risk, and benefit conferred by named plaintiffs in these complex cases. The reason for the lack of incentive awards in EDCAs can partially be attributed to the way in which courts currently evaluate incentive payments, as described by the five models set forth above. Without Supreme Court authority on incentive payments, courts are unwilling to make these grants based solely on a public policy or award model, as argued above. Instead, courts rely on the bulk of published decisions relating to all class actions, failing to consider the special considerations of employment discrimination cases. In doing so, courts take a conservative approach by reciting multiple considerations. Courts include valid employment discrimination concerns, 117. 118. 119. 120.

See Eisenberg & Miller, supra note 4, at 1. Id. at 1. Id. at 5. Id. at 40.

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such as personal risk and added value provided by the named plaintiffs. However, they temper such considerations with factors straight from other causes of action, such as the bounty, restitutionary, and fiduciary models in denying robust awards that would provide a true incentive for plaintiffs to stand up for civil rights.121 VI. CONCLUSION In the words of one commentator: “Collective litigation is the compromise of individual positions, interest and autonomy in the service of a joint good.” 122 We, as a society, have encouraged, in both legislation and judicial acceptance the private enforcement of social policies as desirable outcomes. Accordingly, to continue prosecution of important civil rights laws, plaintiffs must be willing and therefore encouraged to take the mantle of named class representative. Courts should recognize that named plaintiffs provide a tremendous service in furthering the public interest by agreeing to take on this hugely important, but hugely risky and time-intensive role. Courts should not feel their hands are tied by having to justify robust payments in the sea of case law requiring downward departures and rejections of awards because these precedents stem directly from securities and consumer actions. Instead, courts are already empowered to make robust awards by the case precedent outlined in the two proper incentive models outlined above that recognizes the role named plaintiffs have in furthering important public policy. In the American workplace, we all hope that our employers will treat us fairly, regardless of our gender or race. And if, instead, we encounter unlawful discrimination, the courts should recognize the value added by named plaintiffs, who stand up for the entire class, without reducing that benefit by introducing concepts inapplicable to the civil rights framework.

121. See, e.g., Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693-94 (N.D. Ga. 2001); Roberts v. Texaco, Inc., 979 F. Supp. 185, 188 (S.D.N.Y. 1997); Sheppard v. Consol. Edison Co., No. 94-CV-403 (JG), 2000 WL 33313540, at *4 (E.D.N.Y. Dec. 21, 2000). 122. Yeazell, supra note 66, at 46.