Offset and Contribution Under the FDCPA

[David A. Szwak]

Under the FDCPA, the offset/contribution cases are: Irwin v. Mascott, 94 F.Supp.2d 1052 [U.S.D.C. N.D. Cal. 2000] [no offset under FDCPA]; Wiggins v. Philip Morris, Inc., et al, 853 F.Supp. 470 [D.D.C. 1994] [same].

More generally: Ricci v. Bancshares of Maine, 768 F.2d 456 [1st Cir. 1985] [explains that any such claim for contribution or offset under a federal statute is a matter of federal law, etc.]

Under other related principles of federal law, a defendant found liable under a federal statute has a right to contribution or set off from another party only if such entitlement arises: (1) through the affirmative creation of a right of action by Congress, either expressly or implicitly, or (2) under the federal common law. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981); Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 90-91, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981).

Applying those guidelines, neither the FDCPA nor its sister act, the Fair Credit Reporting Act, has been found to support an express or implied right to indemnity or contribution. McMillan v. Equifax Credit Information Services, Inc., 153 F.Supp.2d 129, 132 (D.Conn.2001); Irwin v. Mascott, 94 F.Supp.2d 1052, 1058 (N.D.Cal.2000); Kay v. First Continental Trading, Inc., 966 F.Supp. 753, 754-55 (N.D.Ill.1997).

The FDCPA itself contains no provision creating an implied or express right of contribution, indemnification or equitable credit, and Howe has not contended or shown that federal common law creates such a right. We therefore hold that Howe is not entitled to any credit for amounts paid by released parties, and a case or controversy as to Conner's claims against Howe still exists. Conner v. Howe, 344 F.Supp.2d 1164 [U.S.D.C. S.D. Ind. 2004].

Similarly, under the sister statute, the cases on the lack of FCRA contribution/offset claims are: McMillan v. Equifax, et al, 768 F.Supp.2d 129 [U.S.D.C. Conn.] [one defendant does not cause another defendant to violate the FCRA and cannot claim offset]; Kay v. First Continental Trading, 966 F.Supp. 753 [U.S.D.C. N.D. Ill. 1997] [No FCRA contribution or offset]; Andrews v. TRW, 7 F.Supp.2d 1056 [U.S.D.C. C.D. Cal.], reversed by Ninth Circuit on other grounds, then the Ninth Circuit was reversed by the Supreme Court on other grounds [No offset or contribution under the FCRA].