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Catalina Yachts v. Pierce1/14/2005
Court then faced the question whether its reading of the rule to include attorney's fees in some circumstances would "frustrate Congress' objective . . . of ensuring that civil rights plaintiffs obtain effective access to the judicial process" through § 1988, which allows attorney's fees to prevailing civil rights plaintiffs. The question in Marek is closely analogous to the question at the heart of our preemption analysis in the present case. The Marek Court asked whether federal Rule 68, by cutting back on plaintiffs' fee awards, undermines and conflicts with § 1988, which allows full fees. We ask whether Alaska's Rule 68, by forcing a prevailing plaintiff to pay a defendant's post-offer fees, undermines Magnuson-Moss, which allows fees only to plaintiffs.
The Supreme Court in Marek concluded that there is no conflict between federal Rule 68 and § 1988: " e are not persuaded that shifting the postoffer costs to [the plaintiff] in these circumstances would in any sense thwart its intent under § 1988 . . . . Section 1988 encourages plaintiffs to bring meritorious civil rights suits; Rule 68 simply encourages settlements. There is nothing incompatible in these two objectives."
Following the Supreme Court's reasoning, we hold that there is no conflict between Alaska Civil Rule 68 and Magnuson-Moss. Forcing plaintiffs to bear their own costs, as in Marek, and requiring them to pay the other party's fees, as in the case before us, have the same general effect - reducing the benefit that the underlying statute would give the plaintiffs. This reduction could conflict with the underlying statute's goal in the following scenario: Injured persons might be encouraged to bring a claim by the prospect of a fee award provided by the underlying statute. But they might then consider that if they reject an offer, go to trial, and win less than the offer, Rule 68 will reduce their award. The attorney's fee provision that had encouraged them to file suit looks somewhat less appealing. This might convince them not to bring their meritorious claim, defeating the purpose of the fee provision.
This response seems unlikely, however. Marek holds that leaving plaintiffs responsible for their own costs does not reduce their incentive to bring suit to the extent that it defeats the fee provision's purpose and creates a conflict. And there is no suggestion that requiring prevailing plaintiffs to pay the defendant's post-offer, non-fee costs undermines Magnuson-Moss. Requiring the plaintiff to pay the defendant's post-offer fees is not so much more onerous that it should be treated differently. While it does reduce the incentive provided by Magnuson-Moss, applying Rule 68 does not go so far as to defeat its purposes. The two provisions are not in conflict.
Our decision in Turner v. Alaska Communications Systems Long Distance, Inc. is not to the contrary. In Turner, we held that absent class members with relatively small claims who remain passive throughout the litigation are not liable for their adversary's attorney's fees under Alaska Rule of Civil Procedure 82 if the class loses. We reasoned that the threat of such liability would discourage absent class members from pursuing the action and lead them to opt out, leaving them without a remedy. In light of Turner's concerns, we must be careful about allowing fee-shifting provisions to undercut provisions meant to encourage plaintiffs to bring meritorious claims. But while we held in Turner that absent class members are not liable for attorney's fees if the class loses, we clarified that our decision did not prevent the award of attorney's fees against the named class representatives: " ur ruling does not eliminate Rule 82 attorney's fees in class ac
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