Karen Donovan‘s book V. Goliath: The Trials of David Boies discusses an interesting set of incentives that Boies insisted upon as lead counsel for a class of plaintiffs who were suing manufacturers of vitamins for overcharging.
Boies got the judge to agree to a “most favored nation” clause. The amount given to each class member could be no less than the highest amount obtained by any plaintiff who opted out of the class and settled on its own with the defendants.
The other plaintiffs’ attorneys argued that this only gave incentives to remain in the class and that it was a “tax” on opting out. Boies argued that it prevented others from piggybacking on all his efforts for class members. Seems to be that both Boies and the group of other plaintiffs’ attorneys were correct.