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 Post subject: Weiss Case Says "No"
PostPosted: Fri Jul 21, 2006 1:13 pm 
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Weiss v. Regal Collections
385 F.3d 337, 59 Fed.R.Serv.3d 906
3rd Cir.(N.J.), Sep 29, 2004

The remedies under the FDCPA differ depending on who brings the action. [FN8] Compare 15 U.S.C. § 1692k(a) (damage remedies for private litigants) with 15 U.S.C. § 16921 (administrative enforcement by Federal Trade Commission). The statute authorizes damages for civil liability, but permits only the Federal Trade Commission to pursue injunctive or declaratory relief. See 15 U.S.C. § 16921. [FN9] Some trial courts have interpreted this statutory structure to preclude injunctive or declaratory relief in private actions. See Zanni v. Lippold, 119 F.R.D. 32, 33-34 (C.D.Ill.1988) (" 'The FDCPA specifically authorizes the Federal Trade Commission (FTC) to seek injunctive relief ... and defendant persuasively argues that this is a strong indication of Congress' intent to limit private actions to damage claims.' ") (quoting Strong v. Nat'l Credit Mgmt. Co., 600 F.Supp. 46 (E.D.Ark.1984)); see also Washington v. CSC Credit Servs., 199 F.3d 263, 268 (5th Cir.2000) ("[Under the Fair Credit Reporting Act, the] affirmative grant of power to the FTC to pursue injunctive relief, coupled with the absence of a similar grant to private litigants, when they are expressly granted the right to obtain damages and other relief, persuasively demonstrates that Congress vested the power to obtain injunctive relief solely *342 with the FTC."). Because the statute explicitly provides declaratory and equitable relief only through action by the Federal Trade Commission, we believe the different penalty structure demonstrates Congress's intent to preclude equitable relief in private actions.

FN8. The legislative history of the Act also suggests two categories of penalties depending on who brings the action. See 95 S. Rep. 382, at 5 (discussing "civil liability" and "administrative enforcement" under separate subheadings); see also Zanni v. Lippold, 119 F.R.D. 32, 34 (C.D.Ill.1988) (relying on dual penalty schemes in legislative history of FDCPA to support conclusion that equitable relief is unavailable to private litigants).

FN9. Section 16921 provides, in part: Administrative enforcement (a) Federal Trade Commission. Compliance with this title shall be enforced by the Commission, except to the extent that enforcement of the requirements imposed under this title is specifically committed to another agency under subsection (b).... All of the functions and powers of the Commission under the Federal Trade Commission Act [15 USCS §§ 41 et seq.] are available to the Commission to enforce compliance by any person with this title....

For these reasons, we hold injunctive and declaratory relief are not available to litigants acting in an individual capacity under the FDCPA. Therefore, the Rule 68 offer provided all the relief available to Weiss as an individual plaintiff acting in his personal capacity.

Of course, the Rule 68 offer did not provide the maximum damages to the putative class. For class actions, the maximum relief under the FDCPA is greater. The FDCPA authorizes additional recovery for non-named class members "without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector." 15 U.S.C. § 1692k(a)(2)(B). Because defendants' Rule 68 offer included no relief for the putative class, either under the provisions of the FDCPA or through the aggregation of class claims, we address the mootness question in that context.

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