United States Court of Appeals,

Fifth Circuit.

No. 96-30276

(Summary Calendar).

Earl DUGAS, Jr., Plaintiff-Appellant,

v.

TRANS UNION CORPORATION, Defendant-Appellee.

Nov. 14, 1996.

Appeal from the United States District Court for the Middle District of Louisiana.

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Earl Dugas, Jr. appeals the district court's denial of class certification for claims brought under

t he Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.). Before appealing the dist rict

court's adverse certification ruling, Dugas settled his individual and class claims with the defendant,

Trans Union Corporation; Dugas did not reserve a right to appeal the certification ruling. Finding

no jurisdiction, we dismiss the appeal.

BACKGROUND

Earl Dugas, Jr., on his own behalf and on behalf of a class, brought suit against Trans Union

Corporati on (Trans Union) alleging violations of the Fair Debt Collection Practices Act (15 U.S.C.

§ 1692 et seq.). Dugas subsequently moved the district court for class certification, but the district

court declined to certify the class. Approximately one week lat er, Trans Union, pursuant to

Fed.R.Civ.P. 68, offered to settle the case for $1,000. The settlement offer stated in pertinent part:

"In view of the Court's bench ruling denying class certification

... Defenda n t Trans, [ sic ]

Union Corp o ration ... pursuant to Rule 68 of the Federal Rules of Civil Procedure, hereby

offers to allow judgment to be taken against it for money damages in the amount of $1,000.00

together with an award of costs of the action and, reasonable attorney's fees as determined

by the Court...."

Emphasis added. Dugas accepted Trans Union's offer of settlement in a one-sentence

"ACCEPTANCE OF OFFER OF JUDGMENT." The acceptance read simply: "Plaintiff Earl Dugas,1 Dugas' Notice of Appeal states that "plaintiff ... hereby appeals to the United States Court of

Appeal for the Fifth Circuit from the Judgment entered on the 13th of February, 1996, and all

preceding orders made final thereby, including the Order of May 11, 1995 denying Plaintiff's

Motion for Class Certification." Because Dugas' briefs are exclusively devoted to the issue of

class certification, our jurisdiction to hear this appeal necessarily turns on the question of whether

Dugas can properly appeal the district court's adverse certification order. Jr. accepts Trans Union Corporation's Offer of Judgment dated May 8, 1995." The di stri ct court

thereafter entered judgment accordingly. Dugas then timely filed this appeal challenging the district

court's denial of class certification. 1

Trans Union moves to dismiss this appeal on the ground that Dugas accepted their offer of

settlement and that acceptance, argues Trans Union, without any reservation of a right to appeal the

district court's denial of class certification, bars Dugas' appeal. Dugas, on the other hand, argues first,

that he did not really " set t le" the case, and second, that a settlement of a class action suit by the

representative of the class does not preclude Dugas from appealing the district court's decisio n

denying class certification.

We hold that because Dugas voluntarily settled the entire action with Trans Union, voluntarily

consented to entry of judgment, and did not reserve a right to appeal the adverse certification ruling,

we have no jurisdiction to hear this appeal.

I. T HE S ETTLEMENT

We turn first to the issue of whether Dugas settled his case with Trans Union. Dugas argues

that he "did not "settle' his individual claim in any normal sense of the word: [Dugas'] acceptance of

the offer of judgment merely expedited the judgment which the court would have entered anyway.

Dugas is therefore akin to t he plaint iff against whom judgment is entered over his objection, as

opposed to one who voluntarily settles his claims at a "compromise' level of damages."

We reject Dugas' argument for two reasons. First, at no t ime did Dugas object to the

settlement or entry of judgment, and there is no evidence in the record suggesting that Dugas was

pressured in any way to accept Trans Union's offer. Second, we reject Dugas' claim that § 1692k of

the Fair Debt Collection Practices Act compelled the district court to enter a $1,000 judgment for

Dugas. This f

ait accompli argument is belied by the plain terms of § 1692k, which provides in part:any debt collector who fails to comply with any provision of this title

... with respect to any

person is liable to such person in an amount equal to the sum of— ...

(2)(A) in the case of any action by an individual, such additional damages as the court

may allow, but not exceeding $1,000; or

(B) in the case of a class action, (I) such amount for each named plaint iff as could be

recovered under subparagraph (A)....

Emphasis added. Cont rary t o Dugas' contention, § 1692k plainly states that the trial court "may"

award $1,000 in damages. Thus, prior to Trans Union's offer t o set t le t his case, there was no

guarantee, as a matter of law, that the district court would enter judgment for Dugas in the amount

of $1,000. In addition, there is no evidence in the record suggesting that the district court indicated

in any way, prior to Trans Union's settlement offer, that he was determined to enter a $1,000

judgment in favor o f Dugas. Under these facts, it is clear that Dugas settled his case with Trans

Union. A contrary conclusion would render every class action settlement of this kind vulnerable to

attack on appeal, thereby discouraging settlement.

II. T HE A PPEALABILITY OF THE A DVERSE C ERTIFICATION R ULING

That we have determined that Dugas settled his case with Trans Union does not end our

inquiry. We next turn to the thorny question of whether a representative of a class action, who settles

with a defendant after an adverse certification ruling, is precluded from appealing the adverse

certification ruling. For the reasons that follow, we ho ld that when a representative of a class

voluntarily and without objection settles his individual and class claims after an adverse certification

ruling and consents to entry of judgment, that representative is precluded from appealing the district

court's certification order absent an express reservation of a right to appeal that order.

We have held that in

class action lawsuits, a class representative wears two hats. He

represents both his personal interests and the interests of the class. S ee Roper v. Consurve, Inc., 578

F.2d 1106, 1110-11 (5th Cir.1978), aff'd sub nom. Deposit Guaranty Nat'l Bank v. Roper, 445 U.S.

326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). Recognizing the inherent potential for harm to putative

class members, the Supreme Court has erected certain procedural hurdles to prevent defendants from

"buying out" class representatives. For example, in U nited Airlines, Inc. v. McDonald, 432 U.S. 385,

392-96, 97 S.Ct. 2464, 2468-71, 53 L.Ed.2d 423 (1977), the Court held that putative members ofa class may appeal the denial of class certification even though the class representatives' claims lacked

merit.

In 1980, the Supreme Court issued a pair of decisions that further clarified the circumstances

under which an adverse certification ruling could be appealed. The reach of the first of these

decisions, Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427

(1980), is directly at issue in this case. In R oper, the district court issued an adverse certi fication

order, and thereafter the defendant offered to settle the case. The plaintiffs rejected the settlement

o ffer, yet the district court entered judgment for the plaintiffs in the amount specified in t he

defendant's settlement offer, again over the plaint iffs' objecti ons. On appeal to thi s court, the

defendant argued that the plaint iffs' claims were moot because the case was settled. We rejected that

contention and held that the representative plaint iffs could appeal the adverse certification ruling. 578

F.2d at 1110-11.

The Supreme Court affirmed. Stressing that "[t]he factual context in which this question

arises is important," 445 U.S. at 332, 100 S.Ct. at 1171, the Court held that "[n]either the rejected

t ender nor the dismissal of the action over plaintiffs' objections mooted the plaintiffs' claim on t he

merits so long as they retained an economic interest in class certification," id. at 333, 100 S. C t. at

1171. That economic interest, reasoned the Court, was the plaint iffs' "desire to shift to successful

class litigants a portion of those fees and expenses that have been incurred in this litigation and for

which they assert a continuing obligation." I d. at 334 n. 6, 100 S.Ct. at 1172 n. 6. The R oper Court

emphasized the important role class representatives play when they attempt to certify a class, and if

such certification is denied, the importance of challenging the denial on appeal.

A dist rict co urt's ruling on the certification issue is often the most significant decision

rendered in these class-action proceedings. To deny the right to appeal simply because the

defendant has sought to "buy off" the individual private claims of the named plaint iffs would

be contrary to sound judicial administration. Requiring multiple plaintiffs to bring separate

actions, which effectively could be "picked off" by a defendant's tender of judgment before

an affirmative ruling on class certification could be obtained, obviously would frustrate the

objectives of class actions....

Id. at 339, 100 S.Ct. at 1174.

Dugas argues forcefully that ours as well as the Supreme Court's decision in Roper controls2 In Zeidman, we specifically referred to those pages on which the "acquiescence" language

appeared. Zeidman, 651 F.2d at 1042 (citing Roper, 578 F.2d at 1110-11). this case. He suggests that even though the facts of R oper involved a plaint iff who never voluntarily

settled t he case or never consented to entry of judgment, the Supreme Court nonetheless has

endorsed the proposition that voluntary settlements do not extinguish a settling representative's right

to appeal an adverse certification order. We disagree.

First, the Supre me Court in R oper did not paint with as broad a brush as we did. For

example, in dictum, we stated that a class representative may appeal an adverse certification order

e ven if t he representative "acquiesced" in— i .e., accepted—a settlement. 578 F.2d at 1110. The

Supreme Court did not go that far: "Should the[ ] substantive claims become moot in the Art III

sense, by settlement of all personal claims for ex ample, the court retains no jurisdiction over the

controversy of the individual plaintiffs." 445 U.S. at 332, 100 S.Ct. at 1171 (emphasis added). We

have since recognized that "our decision [in Roper ] relied on broader grounds" than the Supreme

Court's decision. Z

eidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1042 (5th Cir. Unit A 1981);

see also Mayfield v. Barr, 985 F.2d 1090, 1093 (D.C.Cir.1993) (stating in dictum that "[ t]he

common feature of the[ ]

... Supreme Court decisions [in Roper and Geraghty ]

... is that the plaint iffs

lost their claims involuntarily. " (emphasis added)). 2

Second, and more to the point, the precise question we face in t his case was left open in the

companion case to Roper

— United State s Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct.

1202, 63 L.Ed.2d 479 (1980). There, a prisoner filed a class act io n challenging new prison

guidelines. The prisoner moved the district court for class certification, but the district court refused

to certify the class. The prisoner appealed, but while his appeal was pending, he was released from

prison. The defendants moved to dismiss the appeal as moot. The Court o f Appeals rejected the

defendants' claim, and the Supreme Court affirmed, holding "that an action brought on behalf of a

class does not become moot upon expiration of the named plaint iff's substantive claim, even though

class certification has been denied." I d. at 404, 100 S.Ct. at 1212. The Court, however, declined to

answer the precise question we face in this case: "We intimat e no view as to whether a namedplaint iff who settles the individual claim after denial of class certification may, consistent with Art III,

appeal from the adverse ruling on class certificat ion." Id. at 404 n. 10, 100 S.Ct. at 1213 n. 10

(emphasis added). In light of this language, it would be unwise for us to hold that t he Co urt

answered a question in Rop e r that it expressly and unambiguously left open that same day in

Geraghty.

We have yet to answer the Gerag hty quest ion. We do so today by looking to our sister

circuits, who have addressed this question and come to the unanimous conclusion that a voluntary

settlement , absent any reservation of a right to appeal the certification decision, prevents the class

representative from appealing the adverse certification order.

The facts in Shores v. Sklar, 885 F.2d 760 (11th Cir.1989) (en banc), cert. denied, 493 U.S.

1045 , 110 S.Ct. 843, 107 L.Ed.2d 838 (1990), are virtually indistinguishable from this case. In

Shores, after the district court denied the class rep resentative's motion to certify the class, the

defendant presented the representative with a Rule 68 offer of settlement. The plaintiff-representative

accepted the offer, and the district court thereafter entered judgment pursuant to the settlement offer.

The representative then appealed the denial of class certification. An en banc panel of the Eleventh

Circuit dismissed the appeal, holding that "because [the class representative] consented to the entry

of judgment without reserving his right to appeal any portion thereof, [the class representative] has

waived his right to appeal the denial of class certification." I d. at 762. In reaching their conclusion,

the Shores court was careful to dist inguish the representative's individual claims from those of the

class. I d. at 762-63. Nonetheless, in light of the representative's acceptance of the offer "without any

qualification" and without "reference to [the representative's] individual claims," the court concluded

that acceptance of the offer "indicate[d] that [the representative] consented to entry of judgment

encompassing the entire action." I d. at 763. The court rejected the representative's contention that

"consent to judgment should be presumed to have encompassed only [the representative's] individual

c laims...." I

d. Such a holding, reasoned the court, would "conflict[ ] with the well-established

p rinciple that interlocutory orders are merged into the final judgment." I d. (citing 9 M OORE &

L UCAS

, M OORE ' S F EDERAL P RACTICE ¶ 110.07, at 109 (1987); C ohen v. Beneficial Industrial Loan3 In their brief, the defendant urges us to go even further and hold that Dugas would be

precluded from appealing the adverse certification ruling even if he reserved his right to appeal.

We decline the invitation for three reasons. First, Trans Union relies heavily on the Eleventh

Circuit's decision in Shores, which plainly held that a settling class representative may reserve a

right to appeal an adverse certification order. Second, Trans Union misunderstands the difference

between a settlement in a garden-variety lawsuit and a settlement by a class representative in a

class-action lawsuit. As we have suggested, a class representative plays two roles: he represents

his own interests as well as the interests of the class. Thus, he may settle his individual claims

with the defendant and affirmatively preserve his right to assert the class's interests on appeal. Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).

Here, Dugas voluntarily settled the entire action with Trans Union, consented to entry of

judgment, and did not indicate that he was settling only his individual claims. Because interlocutory

orders denying class certification merge with the final judgment for purposes of appeal, Coopers &

Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Cohen, 337 U.S. 541,

69 S.Ct. at 1221, we cannot presume that Dugas intended to settle only his individual claims. In fact,

the settlement offer states that Trans Union "offers to allow judgment to be taken against it for money

damages in the amount of $1,000.00 together with an award of costs of the action, ...." (Emphasis

added.) This reference to t he "action" together with Dugas' unconditional acceptance of Trans

Union's offer and the district court's entry of judgment pursuant to the settlement agreement, plainly

suggest that Dugas was settling all of his claims, individual and class alike, with Trans Union. Other

courts have so held. See Shores, 885 F.2d at 762, 763 (settlement offer read " "to allow judgment

to be taken against them

... in this act io n' " and reference to "action" indicated settlement of all

claims); S eidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (9th Cir.1986) (dismissal of "action"

held to cover all claims).

The inescapable conclusi o n is t hat Dugas was wearing both hats when he settled his claim

with Trans Union. We therefore hold that Dugas' settlement with Trans Union, which did not include

a reservation of a right to appeal the certification ruling, divests us of jurisdiction to hear this appeal.

In so holding, we join the chorus among other circuits who have come to the same conclusion. S ee

Lusardi v. Xerox Corp., 975 F.2d 964, 979-80 n. 25 (3d Cir.1992); W alsh v. Ford Motor Co., 945

F.2d 1188, 1190-92 (D.C.Cir.1991) (opinion of Ginsburg, Ruth B., J.); S eidman, 785 F.2d 1447,

1448 (9th Cir.1986). 3Finally, the two cases Trans Union cites— Amstar Corp. v. Southern Pac. Transp. Co., 607 F.2d

1100 (5th Cir.1979), cert. denied, 449 U.S. 924, 101 S.Ct. 327, 66 L.Ed.2d 153 (1980) and

White & Yarborough v. Dailey, 228 F.2d 836 (5th Cir.1955)—do not involve settlements by class

representatives.

4 See Lusardi, 975 F.2d at 980 ("The option of directly appealing an adverse decertification

ruling—preserved in Geraghty / Roper ... typically prevents class-action defendants from paying to

avoid final review of any class certification issues raised before settlement."). Dugas attem

pts to di st inguish these cases on the ground that they "involved the scope of

settlement agreements, not the entry of an offer of judgment." This is a distinction without a

difference. Dugas offers no argument, and we perceive none, that settlements and offers of judgment

are materially different for purposes of determining whether Dugas may appeal a p re-settlem ent,

adverse certification order.

Dugas also claims that because " Roper was the controlling Fifth Circuit case," his acceptance

of Trans Union's offer "cannot be construed as unconditional: the parti es were on noti ce that an

appeal of the denial of class certification could be taken." This fact, Dugas claims, distinguishes this

case from Shores. We take Dugas' claim to mean that when he settled with Trans Union, he did not

set t le t he case on behalf of the class because there was "controlling" authority in this Circuit

suggesting he did not have to reserve his right to appeal the adverse certification order. We reject

this contention. There was no "controlling" case in this Circuit that governed Dugas' case. As we

st at ed above, the Supreme Court's decision in R oper does not support Dugas' claims here, and

Geraghty explicitly left open the precise question presented in this case.

We are mindful of the unique circumstances presented by class action lawsuits and the

consequences that flow from dismissing a class representative's appeal from an adverse certification

ruling. Our holding, however, does not compromise the integrity of class actions. First, we have said

that a class representative need only reserve a right to appeal the certification ruling to preserve the

class's interests. Thus, short of rejecting the defendant's offer or simply appealing the denial of class

certification, 4 any attempt by a defendant to buy his way out of a class action is severely attenuated,

if not eliminated, by the class representative's reservation of a right to appeal an adverse certification

order. Second, even assuming the class representative does not reserve a right to appeal, we haveheld that a putative class member has standing to appeal an adverse certification ruling. S ee Nichols

v. Mobile Bd. of Realtors, Inc., 675 F.2d 671, 675 (5th Cir. Unit B 1982). The rights of putative

class members are adequately protected.

APPEAL DISMISSED.