Offers and Class Actions: Friction

Federal and State Rules of Procedure provide cost and sometimes attorney's fee shifting mechanisms for defendants to attempt to force plaintiffs/consumers to accept proposed settlements. This forum provides a source of information for how these rules may impact the litigation.

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David A. Szwak
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Joined: Thu Jul 13, 2006 11:19 pm

Offers and Class Actions: Friction

Post by David A. Szwak »

Weiss v. Regal Collections
385 F.3d 337
C.A.3 (N.J.),2004.
September 29, 2004

Individual consumer brought putative class action under the Fair Debt Collection Practices Act (FDCPA) to obtain both monetary and declaratory and injunctive relief. When debt collector, prior to filing of motion to certify class, made offer of judgment to consumer individually under Federal Rule of Civil Procedure, the United States District Court for the District of New Jersey, Alfred M. Wolin, J., granted defendant's motion to dismiss cause of action as moot, and plaintiff appealed.

The Court of Appeals, Scirica, Circuit Judge, held that:
(1) offer of judgment to Fair Debt Collection Practices Act (FDCPA) plaintiff, in amount of maximum $1,000 damages award available to him individually under the FDCPA together with reasonable costs and attorney fees, qualified as offer of complete relief to plaintiff individually, for purposes of Federal Rule of Civil Procedure dealing with offers of judgment; but
(2) putative class action was not rendered moot.

Reversed and remanded.



Before SCIRICA, Chief Judge, FISHER and ALARCÓN,FN* Circuit Judges.


FN* The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial Circuit, sitting by designation.


SCIRICA, Chief Judge.
At issue is whether a putative class representative's claim is mooted by a Rule 68 offer of judgment so as to defeat federal subject matter jurisdiction in a suit requesting class-wide relief. This appeal reflects the tension between two rules of civil procedure-Fed. R. Civ. P. 23 and Fed.R.Civ.P. 68-and whether they can be harmonized when the only individual relief requested by the representative plaintiff has been satisfied through an offer of judgment.FN1 The District Court granted defendants' motion to dismiss on grounds of mootness. We will reverse and remand.


FN1. Our Court addressed a similar issue in Colbert v. Dymacol., Inc., 302 F.3d 155 (3d Cir.2002). That case was vacated and reheard by the Court en banc, 305 F.3d 1256 (3d Cir.2002), which then dismissed the appeal as improvidently granted. 344 F.3d 334 (3d Cir.2003).




I. Facts

On October 25, 2000, defendant bill collector Regal Collections mailed a letter to Richard Weiss demanding payment of a debt allegedly owed to Citibank. Contending that certain statements in the letter constituted unfair debt collection practice in violation of the Fair Debt Collections Practices Act (“FDCPAâ€
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
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