Quintin Scott v. THOMAS J. DART, Sheriff of Cook County, and COOK COUNTY , ILLINOIS

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1312
Q UINTIN S COTT,
Plaintiff-Appellant,
v.
THOMAS J. DART, Sheriff of Cook County, and C OOK C OUNTY ,
I LLINOIS ,
Defendants-Appellees.
____________________
On Petition for Rehearing and Rehearing En Banc
____________________
DECIDED JULY 23, 2024
____________________
Before K IRSCH and JACKSON -A KIWUMI , Circuit Judges.*
Appellees filed a petition for rehearing and rehearing en
banc. All members of the panel have voted to deny the peti-
tion for rehearing, and none of the judges in active service has
called for a vote on the request for rehearing en banc, which
is denied. Circuit Judge Maldonado did not participate in the
consideration or decision of this case.
* Circuit Judge Wood, a member of the panel, retired on May 1, 2024.

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2 No. 23-1312
Statement of Circuit Judge EASTERBROOK, joined by Chief
Judge SYKES, respecting the petition for rehearing en banc. This
case has been settled but lives on. Our panel remanded it to
the district court with instructions to reconsider its decision
declining to certify a class. Yet Quintin Scott, the only named
plaintiff, settled his claim. His need for judicial assistance has
ended. Someone else might intervene to take up the torch as
class representative, but no one has done this. What’s left for
the judiciary to do?
The panel’s answer is that Scott would become eligible for
an “incentive award” if the class were certified with him as its
representative and go on to win on the merits or secure a fur-
ther settlement. Since the payment would not depend on
Scott’s injury, his quest for one looks something like a wager
of law, which long has been understood to be outside the re-
mit of Article III judges. Childress v. Emory, 21 U.S. (8 Wheat.)
642 (1823); Alliance to End Repression v. Chicago, 820 F.2d 873,
875–76 (7th Cir. 1987). Or perhaps is it like “statutory dam-
ages,” which likewise do not suffice when they don’t redress
an injury. See, e.g., TransUnion LLC v. Ramirez, 594 U.S. 413
(2021); Spokeo, Inc. v. Robins, 578 U.S. 330 (2016). Cf. Diamond
v. Charles, 476 U.S. 54, 69–71 (1986).
Scott suffered an injury at defendants’ hands, but an in-
centive award would not compensate him for that injury.
Once his loss has been recompensed through the settlement,
how does he have standing? Just because he seeks pay for ser-
vice as a litigant? On that rationale, however, everyone would
have standing to litigate about anything, as long as he de-
manded the minimum wage for time devoted to litigation.
But see Clapper v. Amnesty International, 568 U.S. 398, 416

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No. 23-1312 3
(2013) (self-imposed losses cannot support standing); Murthy
v. Missouri, 144 S. Ct. 1972 (2024) (same).
Espenscheid v. DirectSat USA, LLC, 688 F.3d 872 (7th Cir.
2012), holds that incentive awards nonetheless are proper and
that pursuit of one keeps an otherwise-resolved case alive.
Defendants want us to overrule Espenscheid and align this cir-
cuit with Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 (11th
Cir. 2020), which holds that incentive awards are incompati-
ble with Internal Improvement Fund Trustees v. Greenough, 105
U.S. 527 (1881), and Central Railroad & Banking Co. v. Pettus,
113 U.S. 116 (1885). These decisions say that litigants cannot
be paid for their efforts—that their reward must be damages
for harm done, not a salary for services as plaintiffs. The panel
stuck with Espenscheid, which has support in other circuits.
Judge Kirsch, who dissented on the class-certification is-
sue, concluded that we should leave Espenscheid alone be-
cause the circuits will remain in conflict no matter what the
Seventh Circuit does in this case. I agree with that view and
therefore have not called for a vote on the petition for rehear-
ing en banc. But I also think that Johnson does not present the
best argument for curtailing incentive awards. The Supreme
Court must sooner or later resolve this conflict, and it should
have the full menu of options.
Greenough and Pettus were decided long before the 1966
amendments to Fed. R. Civ. P. 23 created the modern class
action. The Supreme Court’s decisions are not statutes, mak-
ing it hard to say that the way multi-party litigation was han-
dled in the Nineteenth Century is conclusive in the Twenty-
First when dealing with a device invented more than halfway
through the Twentieth.

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4 No. 23-1312
All questions about Article III to the side, I think that it is
proper to pay representative plaintiffs for their contributions
toward making class actions work. We pay lawyers, parale-
gals, investigators, experts, and others whose services are es-
sential; why not plaintiffs? The question remains: Who pays?
An antitrust suit illustrates. The Sherman Act provides for
treble damages. 15 U.S.C. §15(a). Suppose each class member
(including the representative plaintiff) suffers an injury of
$100 and that the class as a whole is out of pocket $10 million.
The jury rules in plaintiffs’ favor and the judge trebles the
award, so the class receives $30 million, of which each mem-
ber is entitled to $300. Suppose also that the judge thinks that
the representative plaintiff should get, not $300, but $3,300, to
compensate for extra time (say, in depositions) and to provide
incentive for other injured persons to step forward in the fu-
ture. Who pays the additional $3,000? If all other members of
the class forgo 3¢ of their awards so that the representative
gets $3,300, it is hard to see an objection. But if the judge adds
$3,000 to the judgment, so that the defendant must pay
$30,003,000, there is a problem. The Sherman Act authorizes
treble damages, not treble damages plus a kicker that the
judge thinks warranted on public-policy grounds.
Or suppose the suit arises under the Fair Labor Standards
Act. This statute authorizes awards of twice the difference be-
tween the required wage and the actual pay. 29 U.S.C. §216(b).
Suppose the representative plaintiff’s injury is $2,000, making
the damages $4,000. If the judge believes that the representa-
tive should receive an extra $6,000 as an incentive, may the
court order the employer to pay $10,000 rather than $4,000?
That can’t be reconciled with the statute, which authorizes
double damages but not quintuple damages. A judge can’t

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No. 23-1312 5
say “good judicial administration requires quintuple dam-
ages for the representative, even though the rest of the work-
ers must accept double damages.” A legislature might say
that, but a judge can’t. Unless the other employees agree to
pay the representative out of their own awards, the maximum
for the representative is set by the statute. (Agreement is im-
portant; a judge can’t reduce other prevailing plaintiffs’ dam-
ages to carry out a judicially devised policy any more than the
court can increase what defendants must pay. But paying an
incentive award out of funds not claimed by members of the
class would avoid this problem.)
The “who pays” question for representative plaintiffs is
parallel to the “who pays” question for class counsel. For
many years courts multiplied the attorneys’ fees awarded un-
der 42 U.S.C. §1988 to compensate counsel for the risk of los-
ing. But Pennsylvania v. Delaware Valley Citizens Council, 483
U.S. 711 (1987), disapproved this practice, holding that de-
fendants may not be ordered to compensate plaintiffs and
their lawyers for this risk. See also Burlington v. Dague, 505
U.S. 557 (1992). Losing defendants must pay damages and re-
imburse counsel for their work, rather than chipping in extra
for the risk that the plaintiffs and their lawyers took. But when
a suit produces a common fund and the attorneys’ award
comes out of that fund, an enhancement for risk is proper.
Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560, 564–65 (7th
Cir. 1994). Drawing the award from the fund means that
plaintiffs pay for work done for their benefit. Just so with in-
centive awards. If prevailing plaintiffs pay the representative
for services to the class, well and good; but a judge cannot or-
der the defendant to pay more than the legally permissible
level of damages, plus attorneys’ fees and costs authorized by
statute.

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6 No. 23-1312
Defendants settled with Scott. A court cannot properly or-
der them to hand over more for his role as a volunteer repre-
sentative of other persons’ interests. An incentive award
therefore would be improper, and the lack of intervention by
any other would-be class representative should have brought
this case to a close.

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