In a change of course from its prior holding in Huertas v. Galaxy Asset Mgmt., 641 F.3d 28 (3d Cir. 2011), the Third Circuit rules that the terms “settlement” and “settlement offer,” in connection with collecting of a time barred debt, may connote litigation and thus mislead a consumer. However, the Court continues to hold that settlement terms alone do not necessarily constitute deceptive or misleading practices under the FDCPA.
In a unanimous published decision in Tatis v. Allied Interstate LLC, No. 16-4022 (3d Cir.) the Third Circuit reversed the District of New Jersey’s granting of a motion to dismiss. The lower court had held that a debt collector’s attempt to collect the time-barred debt did not violate the Fair Debt Collection Practices Act (“FDCPA”) because the collection letter was not accompanied by a threat of legal action. In its order overruling the lower court, the Third Circuit deviated from its prior holding in Huertas v. Galaxy Asset Mgmt., 641 F.3d 28 (3d Cir. 2011) and instead looked to the more recent decisions from its sister circuits—the Fifth, Sixth, and Seventh—which all held that the term “settle” could mislead a consumer. Continue reading “Third Circuit Holds “Settlement Language” in Collection Letter Can Be Misleading”
The offer-of-judgment rule and the high-low agreement are two mechanisms that exist to help litigants manage their risk in litigation. The offer-of-judgment rule, codified at Rule 4:58-1 to -6, allows a party to take a monetary judgment, or to allow a judgment to be taken against it, for a sum certain. If the offer of a claimant is not accepted and the claimant obtains a money judgment equal to or greater than 120 percent of the offer, the claimant is entitled to costs including all reasonable litigation expenses incurred following non-acceptance of the offer. See R. 4:58-2(a).
A high-low agreement is a settlement agreement that guarantees a minimum recovery for a plaintiff and limits a defendant’s exposure to an agreed upon maximum, regardless of the jury’s award. This maximum, or high-limit, is inclusive of costs and fees and it is a basic assumption of high-low agreements that the plaintiff cannot recover more than the “high-limit.”
Recently, the New Jersey Appellate Division addressed the intersection of these two risk management mechanisms. In Serico v. Rothberg, Plaintiff brought a medical malpractice action for failure to diagnose colon cancer. While the matter was awaiting a trial date, Plaintiff made an offer-of-judgment to accept $750,000 from the Defendant. Defendant did not respond to the offer. The matter went to trial and while the jury was deliberating, the parties entered a high-low agreement that provided a “low” of $300,000 for the Plaintiff and limited Defendant’s liability to a “high” of $1 million. During negotiations for the high-low agreement, Plaintiff’s possible entitlement to fees under the offer-of-judgment rule (R. 4:58-2(a)) was never discussed. It was not expressly waived by the Plaintiff, no demand for waiver was made by the Defendant, and the offer of judgment was not mentioned when terms of the high-low agreement were placed on the record.
The jury then returned a verdict in favor of the Plaintiff for $6 million, well over 120 percent of Plaintiff’s offer-of-judgment. Absent the high-low agreement, Plaintiff would have been entitled to costs and fees under the offer-of-judgment rule. However, Although the high-low agreement permitted a maximum award of $1 million. Despite this ceiling, Plaintiff’s counsel filed a motion for an award of attorney’s fees and costs, arguing that absent an express waiver, a high-low agreement does not waive a plaintiff’s right to seek sanctions under R. 4:58-2(a). Plaintiff claimed that the purpose of the Rule is “to impose financial consequences on a party [that] rejects a settlement offer” and the offer-of-judgment rule “accords judges no discretion regarding whether or not to award attorney’s fees.” The Court disagreed and the Appellate Division affirmed.
The Appellate Division explained that by entering into the high-low agreement, Plaintiff “could not recover any amount beyond the ‘high’ to which she agreed.” A high-low agreement is a contract and, like any contract, if the terms of the agreement are clear they must be enforced as written. The high-low agreement made no mention of Plaintiff’s offer of judgment and “Plaintiff did not come forward with any evidence that she preserved her rights [to attorney’s fees] under the Rule.” Although parties are always free to preserve any claim they might have, they must clearly state that intention at the time of the settlement. Unless expressly preserved, a claim for an additional amount beyond the “high-limit” is considered to be encompassed within the negotiated high-low agreement.