Jack Cooper v. Retrieval Masters Creditors

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18‐2358

JACK W. COOPER,

Plaintiff‐Appellant,

v.

RETRIEVAL‐MASTERS CREDITORS BUREAU, INC.,

Defendant‐Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16‐cv‐02827 — Gary Feinerman, Judge.

____________________

ARGUED JANUARY 19, 2022 — DECIDED JULY 29, 2022

____________________

Before WOOD, HAMILTON, and JACKSON‐AKIWUMI, Circuit

Judges.

HAMILTON, Circuit Judge. This appeal addresses attorney

fee awards to prevailing plaintiffs under consumer‐protection

statutes where damages are usually modest and the plaintiff

has rejected what hindsight shows to have been a substantial

early settlement offer. Plaintiff Jack Cooper sued defendant

Retrieval‐Masters Creditors Bureau for violating provisions

of the Fair Debt Collection Practices Act in trying to collect a

2 No. 18‐2358

debt. See 15 U.S.C. § 1692 et seq. Shortly after the defendant

filed its answer, a magistrate judge tried to mediate a settle‐

ment. During the meeting, the defendant made and plaintiff

rejected an oral settlement offer of $500 in damages plus rea‐

sonable attorney fees and costs incurred to that point. The

meeting ended without an agreement. The next day, the de‐

fendant made a written offer of judgment under Federal Rule

of Civil Procedure 68 for $4,600 including attorney fees and

costs. Cooper did not accept the offered judgment, and the

lawsuit proceeded.

The district court eventually granted summary judgment

to Cooper on liability. Damages were tried to a jury, which

awarded Cooper $500. Cooper and his attorneys then sought

an award of attorney fees and costs totaling more than

$66,000. The district court awarded fees and costs of less than

$8,000, effectively limiting the fee award to fees incurred up

to the time when Cooper rejected the oral settlement offer in

the early mediation session, as if defendant had made a Rule

68 offer more favorable than the final verdict. Cooper v. Re‐

trieval‐Masters Creditors Bureau, Inc., 338 F. Supp. 3d 729 (N.D.

Ill. 2018). Cooper has appealed the attorney fee award as in‐

sufficient. We vacate the district court’s fee award and remand

for proceedings consistent with this opinion.

I. Factual and Procedural Background

A. The Case on the Merits

In February 2016, defendant Retrieval‐Masters Creditors

Bureau (RMCB) sent plaintiff Jack Cooper a letter seeking to

collect a consumer debt of a little over $300. The letter directed

Cooper to include certain information with his payment so

that RMCB could update the credit bureau. Cooper

No. 18‐2358 3

responded the next month by suing RMCB for violating 15

U.S.C. § 1692e(5) & (10). Cooper alleged that RMCB’s letter

falsely threatened to report his debt to credit bureaus even

though RMCB had no actual intention to do so.

After Cooper filed his complaint, defendant asked his law‐

yer for a settlement demand. Cooper replied that he would

settle for $7,600 including attorney fees and costs. Defendant

rejected the demand and answered the complaint. The district

court referred the matter to a magistrate judge for a settlement

conference that was held in July 2016.

During the settlement conference, RMCB made an oral of‐

fer to pay Cooper $500 in damages, plus reasonable attorney

fees and costs incurred to date. Cooper rejected the oral offer.

Later in the session, RMCB actually backtracked. It reduced

its oral offer to $250 in damages, plus reasonable attorney fees

and costs to date. Not surprisingly, Cooper rejected that offer

as well, and no settlement was reached. The next day, defend‐

ant made a written offer of judgment pursuant to Federal Rule

of Civil Procedure 68, proposing to pay $4,600 including at‐

torney fees and costs and to allow the court to enter judgment

against it. Cooper also rejected that offer.

Cooper later filed a motion for summary judgment as to

liability. RMCB filed several motions seeking more time to re‐

spond, all of which the district court granted. In the end,

though, RMCB failed to submit any brief or evidence to op‐

pose Cooper’s motion. The court granted summary judgment

for Cooper as to liability and scheduled a jury trial for the

damages. Cooper v. Retrieval‐Masters Creditors Bureau, Inc., No.

16‐c‐2827, 2017 WL 2404952 (N.D. Ill. June 2, 2017). At trial,

Cooper’s attorneys argued that he was entitled to between

$6,000 and $600,000 in actual damages, plus the maximum

4 No. 18‐2358

$1,000 in statutory damages. The jury awarded Cooper $500

in statutory damages and no actual damages. The court en‐

tered final judgment for Cooper for $500. Cooper v. Retrieval‐

Masters Creditors Bureau, Inc., 338 F. Supp. 3d at 736. RMCB

did not appeal and, at the time of oral argument in this matter,

had not yet paid the judgment.

B. The Attorney Fee Award

The Fair Debt Collection Practices Act relies primarily on

its private right of action to enforce compliance. See 15 U.S.C.

§ 1692k; S. Rep. No. 95‐382 at 5–6 (1977), as reprinted in 1977

U.S.C.C.A.N. 1695, 1699–1700 (new law expected to be “pri‐

marily self‐enforcing; consumers who have been subjected to

collection abuses will be enforcing compliance,” and legisla‐

tion provided no new personnel or budget for agency enforce‐

ment). Damages are usually modest, however. The statute al‐

lows awards of actual damages plus a maximum of $1,000 in

statutory damages in individual cases. The Act allows a pre‐

vailing plaintiff to recover reasonable attorney fees and costs

from the defendant. § 1692k(a).

After winning the judgment on the merits, Cooper sought

an award of $65,357.90 as an attorney fee and $1,042.37 in

costs. Cooper, 338 F. Supp. 3d at 732. The district court

awarded all of the requested costs but only about one tenth of

the fees sought. The court first found that all the hours

Cooper’s attorneys spent working on the case after he rejected

RMCB’s oral offer of five hundred dollars plus fees and costs

were unreasonable. Id. at 734. The court reasoned that

Cooper’s attorneys knew or should have known that he was

unlikely to win any actual damages or even the maximum

$1,000 in statutory damages, so they should have recognized

that there would have been no benefit in proceeding to trial.

No. 18‐2358 5

Id. at 733–34. The court then calculated the lodestar amount

for the time spent until the settlement offer was rejected and

reduced that amount by twenty percent. (The lodestar

amount is determined by multiplying the attorney’s reasona‐

ble hourly rate by the number of hours the attorney reasona‐

bly expended. Schlacher v. Law Offices of Phillip J. Rotche & As‐

sociates, P.C., 574 F.3d 852, 856 (7th Cir. 2009).) The court rea‐

soned that Cooper received a “meager verdict,” noting that he

recovered only $500 in statutory damages after seeking as

much as $600,000 in actual damages, plus the maximum

$1,000 in statutory damages. 338 F. Supp. 3d at 736. The final

award was for $6,845.76 in attorney fees and $1,042.37 in costs.

Id. at 737.

II. Analysis

A. Subject‐Matter Jurisdiction

Before reaching the merits of this appeal, we first address

defendant’s contention that Cooper lacked standing to sue, so

that the district court lacked subject‐matter jurisdiction to

award fees and costs. Defendant argues for the first time in

this appeal by Cooper that he failed to prove a concrete injury

resulting from defendant’s letter.

Article III of the Constitution limits the jurisdiction of fed‐

eral courts to cases and controversies, one essential element

of which is the plaintiff’s standing to bring the case. TransUn‐

ion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). Standing re‐

quires a plaintiff to plead sufficiently and eventually to prove

“(i) that he suffered an injury in fact that is concrete, particu‐

larized, and actual or imminent; (ii) that the injury was likely

caused by the defendant; and (iii) that the injury would likely

be redressed by judicial relief.” Id., citing Lujan v. Defenders of

6 No. 18‐2358

Wildlife, 504 U.S. 555, 560–61 (1992). After the district court is‐

sued its judgment on the merits in this case, this court issued

several opinions restricting standing in cases under the

FDCPA. See, e.g., Wadsworth v. Kross, Lieberman & Stone, Inc.,

12 F.4th 665, 668–69 (7th Cir. 2021); Larkin v. Finance System of

Green Bay, Inc., 982 F.3d 1060, 1066 (7th Cir. 2020); Casillas v.

Madison Avenue Associates, Inc., 926 F.3d 329, 333–34 (7th Cir.

2019).

If this were a direct appeal from a final judgment on the

merits, we would of course entertain such a challenge to sub‐

ject‐matter jurisdiction even if the issue were being raised for

the first time on appeal. E.g., Perez v. K & B Transportation, Inc.,

967 F.3d 651, 654 (7th Cir. 2020). The problem here is that de‐

fendant did not appeal the judgment against it on the merits.

That judgment was entered in 2017 and was not appealed. It

is final. Defendant is attempting in this appeal to raise a col‐

lateral challenge to subject‐matter jurisdiction after it had a

fair opportunity to raise such a challenge in a direct appeal.

Between these parties, the district court’s subject‐matter juris‐

diction is now res judicata. See Travelers Indemnity Co. v. Bai‐

ley, 557 U.S. 137, 152−53 (2009), citing Insurance Corp. of Ireland,

Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9

(1982) (“A party that has had an opportunity to litigate the

question of subject‐matter jurisdiction may not … reopen that

question in a collateral attack upon an adverse judgment.”);

Chicot County Drainage District v. Baxter State Bank, 308 U.S.

371, 376 (1940) (federal courts’ determinations of jurisdiction

are “open to direct review [but] may not be assailed collater‐

ally”); see also Dexia Crédit Local v. Rogan, 602 F.3d 879, 883

(7th Cir. 2010) (rejecting collateral challenge to subject‐matter

jurisdiction for judgment that had become final); 18A Charles

Alan Wright & Arthur R. Miller, Federal Practice and

No. 18‐2358 7

Procedure § 4428 (3d ed.) (explaining general rule against col‐

lateral challenges to subject‐matter jurisdiction and noting a

few exceptions that do not apply here). Res judicata defeats

defendant’s challenge to Cooper’s standing.1

B. The Attorney Fee Award

We now turn to the merits of the fee award. We review an

award of attorney fees for abuse of discretion, though we re‐

view de novo the district court’s legal conclusions and meth‐

ods for calculating the award. Anderson v. AB Painting & Sand‐

blasting Inc., 578 F.3d 542, 544 (7th Cir. 2009).

A person who prevails on an FDCPA claim against a debt

collector is entitled to recover the costs of the action and rea‐

sonable attorney fees. 15 U.S.C. § 1692k(a)(3). No precise for‐

mula establishes a reasonable attorney fee, but the starting

point is usually the lodestar method. Schlacher v. Law Offices of

Phillip J. Rotche & Associates, P.C., 574 F.3d 852, 856 (7th Cir.

2009). As mentioned previously, the lodestar method multi‐

plies the attorney’s reasonable hourly rate by the hours the

attorney reasonably expended. Id. After calculating the lode‐

star, the court may adjust the figure “to reflect various factors

including the complexity of the legal issues involved, the de‐

gree of success obtained, and the public interest advanced by

the litigation.” Id. at 856–57. The controversy here focuses on

1 Defendant’s effort to vacate the entire fee award faces another obsta‐

cle. Defendant did not file a cross‐appeal. The longstanding rule requiring

a cross‐appeal would prevent us from modifying a judgment in favor of

an appellee who did not file its own cross‐appeal. See, e.g., Greenlaw v.

United States, 554 U.S. 237 (2008) (reversing appellate court’s increase in

defendant’s sentence where government filed no cross‐appeal); Richardson

v. City of Chicago, 740 F.3d 1099, 1101 (7th Cir. 2014) (applying Greenlaw in

civil case).

8 No. 18‐2358

the dramatic reduction in the requested fee by applying these

factors to Cooper’s rejection of the oral settlement offer in the

early settlement conference. The district court held that all the

hours spent by Cooper’s counsel after rejecting that settle‐

ment offer were unreasonable.

1. Substantial Settlement Offer

The role of rejected settlement offers in reducing statutory

attorney fee awards is a difficult and recurring subject, espe‐

cially under consumer‐protection statutes, employment and

civil‐rights statutes, and other statutes under which damages

awarded to successful plaintiffs may often be modest as com‐

pared to the attorney efforts needed to prevail. Since Marek v.

Chesny, 473 U.S. 1 (1985), Rule 68 has provided a clear path for

a defendant who wants to reduce the risk of a high fee award,

at least under some fee‐shifting statutes. Rule 68 limits the

costs that a prevailing party may recover if the party rejected

the defendant’s pre‐trial offer of judgment and ultimately re‐

ceived a less favorable award at trial. Fed. R. Civ. P. 68(d); see

also Cole v. Wodziak, 169 F.3d 486, 487–88 (7th Cir. 1999), citing

Marek, 473 U.S. at 11.

To obtain the benefit of Rule 68, a defendant’s offer must

be made in writing and presented to the plaintiff at least 14

days before the date set for trial. Fed. R. Civ. P. 68(a);

Grosvenor v. Brienen, 801 F.2d 944, 948 (7th Cir. 1986). Once

those requirements are met, Rule 68 applies to bar the prevail‐

ing party from recovering any costs incurred after the party

rejected the defendant’s offer. Fed. R. Civ. P. 68(d).

Rule 68 was created to encourage settlements, but recov‐

erable “costs” are usually a small part of litigation expenses.

Under fee‐shifting statutes that treat attorney fees as part of

No. 18‐2358 9

the costs subject to Rule 68, however, the rule’s power is mag‐

nified exponentially. Under such statutes, a plaintiff who re‐

ceives a Rule 68 offer of judgment must “think very hard”

about whether to continue with the litigation. Marek, 473 U.S.

at 11. A plaintiff who rejects an early offer of judgment that

includes attorney fees and costs incurred to date runs the risk

of forfeiting fees for all later work unless the final verdict is

more favorable than the early offer.

Imposing such a difficult decision on plaintiffs has been

justified because Rule 68 strikes a balance by including sev‐

eral important protections for the plaintiff. The Rule 68 offer

must be in writing, the plaintiff must have 14 days to respond,

and the offering party may not revoke or amend the offer dur‐

ing that time. The offering party also bears the risk of any si‐

lence or ambiguity, especially related to attorney fees. Sanchez

v. Prudential Pizza, Inc., 709 F.3d 689, 692 (7th Cir. 2013);

Grosvenor, 801 F.2d at 948.

Rule 68’s limit on “costs” does not apply, however, to at‐

torney fees when the statute providing for recovery, like the

FDCPA, was drafted to treat attorney fees as separate from

costs. Paz v. Portfolio Recovery Associates, LLC, 924 F.3d 949, 953

(7th Cir. 2019). The FDCPA entitles plaintiffs to an award of

“costs of the action, together with a reasonable attorney’s fee

as determined by the court.” 15 U.S.C. § 1692k(a)(3). Because

of this language separating costs and attorney fees in the stat‐

ute, we have held that Rule 68 does not apply by its terms to

attorney fee awards under the FDCPA. Paz, 924 F.3d at 953. At

the same time, nothing prevents an FDCPA defendant from

making a formal Rule 68 offer of judgment that includes at‐

torney fees and costs, as occurred here.

10 No. 18‐2358

Even though Rule 68 is not directly applicable to this case

because the district court did not base its fee award on

RMCB’s later Rule 68 offer of judgment, the rule’s procedures

and protections for plaintiffs are still relevant to our review of

the district court’s attorney fee award here. They provide

guidance for a district court considering whether and how a

rejected settlement offer should affect an attorney fee award

to a prevailing plaintiff. As we explain below, a district court

should not impose what amounts to the harshest conse‐

quences of a rejected Rule 68 offer when the offering party has

not also complied with the procedural protections that Rule

68 itself provides.

The principal question in this appeal is whether the dis‐

trict court abused its discretion when it relied on Cooper’s re‐

jection of RMCB’s oral settlement offer to deny fees for the

post‐offer work his attorneys did. The district court referred

to the mandate in Moriarty v. Svec, 233 F.3d 955 (7th Cir. 2000),

as its guide for deciding the fee award but did not factor in

the procedural differences between a Rule 68 offer of judg‐

ment and RMCB’s oral offer here.

To explain, we first summarize Moriarty and its directive

to courts to consider substantial settlement offers. Next, we

clarify how Moriarty’s directive should be used to ensure we

maintain the key distinction between Rule 68 and non‐Rule 68

offers. We then apply these general principles to the facts of

this case and find that the district court abused its discretion

when it denied Cooper fees for all post‐offer work by his at‐

torneys.

No. 18‐2358 11

a. Moriarty’s Directive and Settlement Offer Types

In Moriarty, we said that district courts must consider

“substantial” settlement offers when determining a reasona‐

ble attorney fee award. 233 F.3d at 967. A substantial settle‐

ment offer is one that is equal to or more than the damages

that the prevailing party ultimately won. Id. We explained in

Moriarty that such offers are relevant because the fees a party

incurs after rejecting the offer often provide little benefit to the

party. Id. Because of the limited benefit of proceeding with the

litigation, we stated that courts “should reflect on whether to

award only a percentage (including zero percent) of the attor‐

ney’s fees that were incurred after the date of the settlement

offer.” Id. We also cautioned, however, that the existence of a

substantial settlement offer “is only one of the factors that a

district court should evaluate in making an attorney’s fee

award, and (absent an offer complying with Rule 68 where

that Rule applies) is not necessarily determinative.” Id.

District courts applying Moriarty’s mandate should con‐

sider the important differences between Rule 68 offers of

judgment and non‐Rule 68 settlement offers. As noted, Rule

68 offers of judgment must be in writing and be served on the

opposing party at least 14 days before trial. Fed. R. Civ. P.

68(a); Grosvenor, 801 F.2d at 948. If accepted, the terms of the

offer will be binding on both parties. Webb v. James, 147 F.3d

617, 621 (7th Cir. 1998). In contrast, a non‐Rule 68 offer need

not be in writing, need not be left open for any particular time,

and may be amended at will. Grosvenor, 801 F.2d at 948–49. In

fact, plaintiffs may tentatively accept an oral offer during ne‐

gotiations and reconsider that decision once the offer is actu‐

ally put in writing, giving all parties a chance to change the

terms of their prior or tentative agreement. Id. The finality of

12 No. 18‐2358

the agreement that exists when a Rule 68 offer is accepted is

simply absent for many non‐Rule 68 offers. Also, in contrast

to a Rule 68 offer, rejection of a non‐Rule 68 offer does not

necessarily result in a limit on the recovery of attorney fees

and costs. Id.

Because of these differences between Rule 68 offers of

judgment and non‐Rule 68 settlement offers, we have empha‐

sized that courts should not treat them as interchangeable.

See, e.g., Cole, 169 F.3d at 487 (district court legally erred when

it refused to grant fees for post‐offer work based on offer

made during oral settlement negotiations that were not even

transcribed); Grosvenor, 801 F.2d at 948–49 (explaining that

plaintiff’s post‐offer fees could not be cut off because defend‐

ant’s offer had been only oral and thus did not satisfy require‐

ments of Rule 68). Moriarty did not discuss or cite these cases

when discussing the effect of substantial settlement offers, but

its direction for courts to consider such offers must be read

through the lens of our cases cautioning against imposing

Rule 68’s harsh consequences on rejected offers that do not

satisfy its requirements for protecting their recipients.

b. Clarification of Moriarty’s Mandate

Before we address Cooper’s main argument challenging

the district court’s fee award, we take this opportunity to clar‐

ify Moriarty’s mandate to courts and to ensure it is applied in

a manner consistent with the teachings of Grosvenor and Cole.

Moriarty was a prolonged suit to collect an employer’s de‐

linquent contributions to employee benefit plans adminis‐

tered by a union. In the first appeal, 164 F.3d 323 (7th Cir.

1998), we vacated on the merits the district court’s grant of

summary judgment to the plan’s trustee. On remand, the

No. 18‐2358 13

district court again granted summary judgment to the plans’

trustee and awarded attorney fees. In the second trip to this

court, on cross‐appeals, we affirmed in part and vacated in

part on the merits. 233 F.3d at 962–63. On attorney fees, we

affirmed what we called the “Phase I” award but vacated and

remanded the “Phase II” award. We vacated because the dis‐

trict court had not evidently considered a non‐Rule 68 sub‐

stantial settlement offer that the defendant had made. We

wrote that the district court was required to consider the offer

as a factor but did not provide further guidance about what

weight it should receive. Id. at 967.

On Moriarty’s third trip to this court, we considered cross‐

appeals of the district court’s attorney fee award of $41,045.13.

429 F.3d 710 (7th Cir. 2005). We vacated again and directed

the district court to clarify its treatment of several issues af‐

fecting the fee award, including the proportionality of fees to

damages, and we described the district court’s treatment of

the settlement offer issue as “perplexing.” Id. at 719. We wrote

that the district court had discretion, but was not required, to

cut off fees incurred after a substantial settlement offer was

rejected. Id. at 719–20. We did not address in the Moriarty

opinions any of the procedural aspects of the substantial set‐

tlement offers relevant to the ultimate fee award, though we

noted in the second Moriarty appeal that it was not clear

whether the most important offer was a Rule 68 offer of judg‐

ment. 233 F.3d at 967 n.5. (It appears likely the parties settled

after Moriarty III; there is no reported district court decision

after that third remand.)

The statement in Moriarty II that district courts could even

decide to award “zero percent” of the post‐offer fees and our

affirmance of that decision in Moriarty III have signaled to

14 No. 18‐2358

courts that they may apply a strict cut‐off for post‐offer fees.

The district court here cited both cases when it held that

Cooper was not entitled to recover fees for work his attorneys

did after he rejected RMCB’s oral settlement offer. Cooper, 338

F. Supp. 3d at 733. However, as applied to the facts here, the

district court’s conclusion goes too far and conflicts with

Grosvenor, Cole, and other cases that have insisted on strict

compliance with Rule 68 before imposing such harsh conse‐

quences. See Grosvenor, 801 F.2d at 948–49; see also Cole, 169

F.3d at 487.

The best way to clarify this tension in our caselaw is to fo‐

cus on the procedural aspects of a substantial settlement offer

that is being considered to reduce a fee award. We adhere to

the teachings of Moriarty II and III that a district court must

consider several factors when setting a reasonable attorney

fee, including the rejection of a substantial settlement offer.

But the rejection of that offer, especially if it is not a Rule 68

offer of judgment that qualifies for limited fees, should not be

the sole fact that determines the fee award. Rather, courts

should consider the totality of the circumstances and focus on

whether the lodestar reflects the unique facts of the case or

whether it should be adjusted up or down to better account

for those facts. E.g., Paz, 924 F.3d at 952, 955 (upholding denial

of post‐offer fees because district court dealt a “substantial

blow” to the plaintiff’s case before trial by dismissing several

of his claims, the settlement offer was three times the statutory

damages available, and “every indication from the record

[was] that [the plaintiff] had but the slimmest chances of re‐

ceiving” any more than the statutory damages). But see Capps

v. Drake, 894 F.3d 802, 806–07 (7th Cir. 2018) (rejecting district

court’s determination that plaintiff’s damages award was de

minimis and he was not entitled to post‐offer fees because the

No. 18‐2358 15

plaintiff’s primary goal from the litigation was to obtain a

judgment of liability, which none of the settlement offers pro‐

vided).

Most pertinent here, in considering the totality of the cir‐

cumstances, it is important for district courts to maintain and

respect the distinction between Rule 68 offers of judgment

and other settlement offers. Rule 68’s potentially powerful

consequences are justified by several protections that are not

available for plaintiffs considering non‐Rule 68 offers like the

one here. In this case, for example, RMCB made its initial oral

offer, had it rejected, and replaced it with a less favorable offer

all within the same meeting. Permitting courts to deny fees for

all post‐offer work solely because a party rejected a non‐Rule

68 offer without considering such circumstances of the case,

as seems to have happened here, would give defendants the

benefit of Rule 68 without providing any of the key safe‐

guards that protect a plaintiff considering a Rule 68 offer.

c. Application

Here, RMCB made a $500 oral offer during the settlement

conference in July 2016. Cooper rejected it on the spot, and

RMCB then lowered its offer to $250, which Cooper also re‐

jected. We agree with the district court’s initial determination

that RMCB’s $500 offer counts here as a “substantial” settle‐

ment offer because Cooper recovered exactly that amount in

damages from the jury. Nevertheless, we conclude that the

district court’s refusal to grant any post‐offer fees was an

abuse of discretion because its only justification was that

Cooper rejected that oral offer.

To defend the minimal fee award, RMCB asserts that the

court did not use Cooper’s rejection of the $500 offer as the

16 No. 18‐2358

sole justification for denying the post‐offer fees. RMCB con‐

tends that the court also focused on the overall strength of the

case and the unlikelihood that Cooper would recover much

more than RMCB’s offer if he went to trial.

We read the district court’s decision differently. The

court’s reference to the weakness of Cooper’s case was simply

another explanation for why he should have accepted

RMCB’s offer. It was not a separate factor or consideration un‐

derlying the court’s decision. The court instead gave decisive

weight to one factor, the rejected oral offer. The district court

abused its discretion when it decided to exclude all the hours

Cooper’s attorneys worked after he rejected RMCB’s $500 of‐

fer from the lodestar calculation, effectively giving defendant

the benefit of Rule 68 without having complied with its pro‐

cedures to protect plaintiffs.

There was a way for defendant to obtain the benefits of

Rule 68 as to the $500 offer here: make a firm offer in writing,

leaving it open for 14 days. If defendant had done that, if

plaintiff had rejected that firm offer, and if the district court

had given decisive weight to that rejection, we would under‐

stand that denial of all post‐offer fees to be an appropriate ex‐

ercise of discretion. While Rule 68 does not apply to attorney

fee awards under the FDCPA, as noted above, that scenario

would be a permissible exercise of discretion. Giving such de‐

cisive weight to an oral offer of settlement, however, was not

fair.

2. Proportionality

In addition to denying Cooper post‐offer fees, the district

court also reduced the lodestar calculation of the remaining

pre‐offer hours by twenty percent because it found that

No. 18‐2358 17

Cooper had limited success at trial. Cooper, 338 F. Supp. 3d at

736. The court based its conclusion on the fact that Cooper’s

counsel had asked the jury to award between $6,000 and

$600,000 in actual damages, but the jury awarded only $500 in

statutory damages. Id.

Courts should consider the proportionality between the

amount of damages the plaintiff recovered and the fee award

as a factor when deciding to adjust the lodestar amount. Spe‐

gon v. Catholic Bishop of Chicago, 175 F.3d 544, 558 (7th Cir.

1999). However, the “fee awards ‘should not be linked me‐

chanically to a plaintiff’s [damages] award.’” Schlacher, 574

F.3d at 857, quoting Eddleman v. Switchcraft, Inc., 927 F.2d 316,

318 (7th Cir. 1991). A court should not deny a party its re‐

quested fees solely because they would exceed the damages

or automatically reduce the fees to make them equivalent to

the damages received. Deicher v. City of Evansville, 545 F.3d

537, 546 (7th Cir. 2008). The assumption in general should not

be that the fee award can never be larger than the damages.

Id.

We have warned district courts against applying such a

mechanical proportionality analysis. Some cases involve “im‐

portant public interests which may not be reflected in the size

of a particular recovery.” Connolly v. National School Bus Ser‐

vice, Inc., 177 F.3d 593, 597 (7th Cir. 1999). For example, aside

from the possibility of receiving actual damages, plaintiffs

pursuing an action under the FDCPA can recover a maximum

of $1,000 in statutory damages. 15 U.S.C. § 1692k(a)(1)–(2)(A).

Despite the likelihood of small awards, Congress explicitly in‐

cluded a provision in the FDCPA allowing successful plain‐

tiffs to recover reasonable attorney fees. § 1692k(a)(3). We

have explained: “‘Unlike most private tort litigants, [an

18 No. 18‐2358

FDCPA plaintiff] seeks to vindicate important … rights that

cannot be valued solely in monetary terms,’” and “the public

as a whole has an interest in the vindication” of those rights.

Tolentino v. Friedman, 46 F.3d 645, 652 (7th Cir. 1995) (omission

in original), quoting City of Riverside v. Rivera, 477 U.S. 561, 574

(1986). This provision of reasonable attorney fees under the

FDCPA is particularly important for plaintiffs like Cooper,

who recovered only $500 in statutory damages but incurred

thousands of dollars in fees and costs. Congress’s goal of us‐

ing attorney fee awards as an incentive for plaintiffs to bring

actions enforcing the rights of the public, like those under the

FDCPA, is greatly undermined if courts apply a strict propor‐

tionality analysis that fails to account for the remedial policies

that such fee awards to private attorneys general are designed

to promote.

We have acknowledged in the civil rights context that “the

cumulative effect of petty violations … may not be petty, and

if this is right then the mere fact that a suit does not result in

a large award of damages … is not a good ground for refusing

to award any attorneys’ fees.” Hyde v. Small, 123 F.3d 583, 585

(7th Cir. 1997). The same logic applies to FDCPA violations.

The minor nature of the violation or the limited damages re‐

covered should not have been major barriers to Cooper re‐

ceiving a reasonable attorney fee. “Success must be measured

not only in the amount of the recovery but also in terms of the

principle established and the harm checked.” Zagorski v. Mid‐

west Billing Services, Inc., 128 F.3d 1164, 1167 (7th Cir. 1997);

e.g., Capps, 894 F.3d at 806 (holding that the plaintiff’s smaller

damages award under 42 U.S.C. § 1983 was not de minimis

because the jury found that the officers were liable for using

excessive force against the plaintiff). Cooper was a successful

plaintiff furthering the goals of Congress when it enacted the

No. 18‐2358 19

FDCPA. At the same time, our case law also clearly allows

some consideration of proportionality, and we defer to the

district court’s exercise of discretion in choosing 20 percent as

a discount for the lack of proportionality. The problem that

calls for a remand, though, is that the district court erred in

denying all fees for post‐offer work.

3. Local Rule 83.5

In addition to his challenges to the court’s reasons for the

fee award, Cooper asserts that we should reverse the award

because the district court based its decision on privileged

statements. Cooper bases his argument on Northern District

of Illinois Local Rule 83.5, which states:

all non‐binding alternative dispute resolution

(“ADR”) proceedings referred or approved by

any judicial officer of this court in a case pend‐

ing before such judicial officer, including any

act or statement made by any party, attorney, or

other participant, shall, in all respects, be privi‐

leged and not reported, recorded, placed in evi‐

dence, made known to the trial court or jury

(without consent of all parties), or construed for

any purpose as an admission in the case re‐

ferred or in any case or proceeding.

Cooper argues that information from the settlement confer‐

ence proceedings, including RMCB’s $500 offer and his rejec‐

tion of it, falls squarely within the prohibition of Local Rule

83.5 and could not be used by the court, or even disclosed to

the court without his consent, to set the fee award.

RMCB counters that Cooper’s argument is waived and be‐

yond our consideration. Non‐jurisdictional arguments made

20 No. 18‐2358

for the first time on appeal are deemed waived or forfeited.

Mahran v. Advocate Christ Medical Center, 12 F.4th 708, 710 (7th

Cir. 2021). In particular, “a party has waived the ability to

make a specific argument for the first time on appeal when

the party failed to present that specific argument to the dis‐

trict court, even though the issue may have been before the

district court in more general terms.” Williams v. Dieball, 724

F.3d 957, 961 (7th Cir. 2013), quoting Fednav International Ltd.

v. Continental Insurance Co., 624 F.3d 834, 841 (7th Cir. 2010).

Cooper’s argument based on the Northern District’s Rule

83.5 raises an interesting question in light of our cases ad‐

dressing rejected settlement offers when setting fee awards.

E.g., Paz, 924 F.3d at 955–56; Moriarty, 233 F.3d at 967 (direct‐

ing courts to consider settlement offers). Nevertheless, we

agree with RMCB that this argument is waived. Cooper did

object to the defendant’s filing of confidential information

from the settlement negotiations at the first opportunity, in

his reply brief in support of his motion for attorney fees. The

legal basis for Cooper’s argument however was Federal Rule

of Evidence 408. He did not refer to Local Rule 83.5. Cooper’s

general discussion of the issue without a reference to his Local

Rule 83.5 theory was not sufficient to preserve the argument

he now makes. As a result, we will not consider the argument

for the first time in this appeal. If there is a debate to be had

about whether courts may consider such evidence from set‐

tlement conferences and the scope of Local Rule 83.5, it ought

to begin in the district court that established the rule.

For the reasons discussed above, we VACATE the district

court’s attorney fee award. This case is REMANDED for a de‐

termination of the amount of attorney fees consistent with this

opinion.