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Catalina Yachts v. Pierce1/14/2005
ive fee awards and that therefore may conflict with state fee provisions."
After all, Magnuson-Moss is hardly silent on the issue of prevailing-party fees. Unlike the Civil Rights Act's language at issue in Marek, the Magnuson-Moss Act's language expressly allows prevailing-party fees to be awarded only to a "claimant."
Since federal law has no general prevailing-party fee rule comparable to Rule 82, Magnuson-Moss's authorization of fees only to claimants effectively precludes fee awards to defendants completely. By comparison, the statutory language considered in Marek only partly precluded fee awards to defendants, expressly allowing fees to be awarded against plaintiffs in frivolous cases. I fail to see how the Magnuson-Moss Act's express language eliminating all circumstances in which defendants may recover fees can realistically be viewed as creating less conflict with the opinion's reading of Rule 68 than the Civil Rights Act's language, which merely eliminates some circumstances.
But even if the first prong of the opinion's preemption analysis were correct, its second-prong analysis would remain problematic. The opinion concludes that its interpretation of Rule 68 does not obstruct the Magnuson-Moss Act's purpose. In reaching this conclusion, the opinion leans heavily on Marek, declaring that case to be "closely analogous."
Yet as the opinion itself acknowledges, the issue addressed in Marek is readily distinguishable from the one presented here:
The Marek Court asked whether federal Rule 68, by cutting back on plaintiffs' fee awards, undermines and conflicts with ยง 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 opinion nonetheless dismisses this distinction as insignificant, summarily observing that " orcing 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." Yet this observation begs the critical question: does this "general" sameness of effect mask specific distinctions that make a practical difference? It seems to me that the answer is yes.
It may be true at some abstract level that requiring Magnuson-Moss claimants to bear their own costs would "have the same general effect" as requiring them to pay defendants' post-offer fees. There is in fact a vast functional difference between limiting how much a claimant can recover upon winning a judgment against the defendant and exposing the claimant to a new risk of having to pay a judgment in the defendant's favor - even if the claimant prevails on the merits. The former can accurately be seen as "reducing the benefit." But surely the latter cannot: it amounts instead to an affirmative detriment, and a substantial one at that, achieving its effect not by reducing something that the claimant would otherwise get but by exposing claimants to a new form of economic hardship and pain. And in the small-damages universe of consumer warranty actions, this threat of a new liability will make worlds of difference.
Although it fleetingly acknowledges the Magnuson-Moss Act's primary goal of encouraging consumers to pursue small warranty claims that would otherwise be precluded by high litigation costs, the opinion ignores the disproportionate impact of imposing new liability on such risk-averse claimants, as well as the consequent danger of discouraging meritorious claims. We recently recognized this danger in Turner v. Alaska Communicatio
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