Sometimes, no news is good news. In an important article, Theodore Eisenberg and Geoffrey Miller add to the emerging literature that uses empirical research to shed light on the real-world operation of class action lawsuits. The conclusions that Eisenberg and Miller draw about incentive awards to class representatives are consistent with the conclusions of their previous study of class-counsel fee awards. The major point they make regarding both types of awards is easily stated: The patterns in both class-counsel fee awards and incentive awards to class representatives do not deviate dramatically from the respective justifications for those awards. As Eisenberg and Miller carefully note, this observation remains constrained by the available data from the corpus of reported decisions that serve as the basis for both of their studies. Even with this caveat, the good news is that there is no news. Reported awards are inconsistent with narratives of lawyer demands or judicial discretion run wild.
This Essay focuses on the implications from the Eisenberg and Miller data on incentive awards. My organizing concept involves a comparison implicit in the two empirical studies that Eisenberg and Miller have completed thus far. My suggestion is that we may organize our thinking about what to make from the data on incentive awards by comparing the observations on that subject with the world of class-counsel fee awards.