Page 12 - Litigation
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S12 | MONDAY, NOVEMBER 14, 2016 | Litigation | NYLJ.COM
Rule Governing O ers of Judgment Should Be Clari ed Following Split SCOTUS Decisions
BY ALEXANDER PILMER
Federal Rule of Civil Procedure 68, which governs offers of judgment, has never been substantively amended in the almost 80 years since it was enacted. Yet the meaning of Rule 68 has been the subject of four split U.S. Supreme Court decisions since 1985, with the most recent, Campbell-Ewald v. Gomez, 136 U.S. 663 (2015) being decided just last term. These decisions have not settled if or how an offer of judgment may be used
by a defendant to end a case. Given prac- titioners’ and courts’ interests in obtaining clarity about how offers of judgment may be used to end cases—and to further Rule 68’s purpose of encouraging settlements—Rule 68 should be amended.
Rule 68 and the U.S. Supreme Court’s ‘Genesis’ and ‘Campbell-Ewald’ Opinions
Under Rule 68, a defendant may make an offer of judgment “on speci ed terms, with
the costs then accrued,” and a plaintiff that refuses such an offer and obtains a judgment “not more favorable than the unaccepted offer ... must pay the costs incurred after the offer was made.” Fed. R. Civ. P. 68(a), (d). But what if the defendant makes an offer of full relief to the plaintiff? Would such a full-relief offer moot plaintiff’s case?
In Genesis Healthcare v. Symczyk, 133 S. Ct. 1523, 1529 (2013), the majority opinion “assumed, without deciding” that an offer of full relief could moot an individual plain- tiff’s claim. But Justice Elena Kagan’s dissent
cautioned that this assumption was “wrong, wrong, and wrong again,” and that “Rule 68 precludes a court from imposing judgment for a plaintiff ... based on an unaccepted settle- ment offer made pursuant to its terms.” 133 S. Ct. at 1533, 1536 (Kagan, J., dissenting).
ALEXANDER PILMER, a litigation partner in the New York and Los Angeles o ces of Kirkland & Ellis, has more than 20 years of experience litigating and try- ing a broad-range of complex cases throughout the country.
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