Page 13 - Litigation

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Litigation | MONDAY, NOVEMBER 14, 2016 | S13
After Genesis, the Courts of Appeals almost uniformly adopted Justice Kagan’s dissent, and in Campbell-Ewald, ve Justices voted to adopt the dissent as the correct statement of the law.
The Genesis dissent and the Campbell- Ewald majority reveal that many Justices are willing to entertain the possibility that a defendant may end a case through some type of offer of judgment. The Genesis dis- sent speci cally noted that “[t]o be sure, a court has discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant unconditionally surrenders and only the plaintiff’s obstinacy or madness prevents her from accepting total victory.” 133 S. Ct. at 1536 (Kagan, J., dissenting). The Campbell-Ewald majority similarly left for another day whether “the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount,” a result that Chief Justice John Roberts’ dissent labeled “good news” because “[f]or aught that appears, the major- ity’s analysis may have come out differently if Campbell had deposited the offered funds with the District Court.” 136 S. Ct. at 672 (majority opinion); id. at 682 (Roberts, C.J., dissenting).
Given the recent urry of litigation over Rule 68, repeated statements from the Justices that plainti s should not be able to litigate simply because they want to, and the bene ts to the judicial system from eliminating cases that defendants are willing to pay to end, Rule 68 is ripe for amendment.
ages issues could be decided on an expedited basis, either under the summary judgment standard or as a matter of course (rather than discretion) via bifurcated trial proceedings.
Third, Rule 68 should be clari ed regarding class actions and collective or mass actions. Amendments on this point might be conten- tious, given the signi cant interests of both the class-action plaintiff and defense bars in any changes. Those changes could also be given the possible interactions amend- ments might have on Rule 23 or the Class Action Fairness Act. And even if amending Rule 68 with respect to such multi-plaintiff cases is ultimately not feasible, the rst two proposed amendments could be bene cial even in cases involving only a single plaintiff. Defendants in such cases could bene t from such amendments where they wish to avoid adverse judicial opinions, remove themselves from what they perceive as an unfavorable venue, or simply avoid the expenses of litigat- ing and appealing a case for other business or tactical reasons.
Given the recent urry of litigation over Rule 68, repeated statements from the Jus- tices that plaintiffs should not be able to liti- gate simply because they want to, and the bene ts to the judicial system from eliminat- ing cases that defendants are willing to pay to end, Rule 68 is ripe for amendment.
How to Clarify Rule 68
The post-Campbell-Ewald lower courts have been divided regarding defendants’ attempts to use offers of judgment (or checks deposited with the court) to end cases. See Brodsky v. Humanadental Ins. Co., 2016 WL 5476233, at *4 (N.D. Ill. Sept. 29, 2016) (gath- ering cases). Nor can we predict whether or when the Supreme Court will take up the question reserved by Campbell-Ewald— just exactly how can a defendant end a case through an offer of judgment. But regardless of how the Supreme Court may (or should) rule under the existing framework, greater clarity and certainty could be achieved from substantive amendments to Rule 68.
First, Rule 68 should be modi ed to clarify that an offer for full relief will end a case. Such an amendment would recognize the ef ciency gains from terminating a case where a plaintiff has been offered (but refuses) full relief. Any amendment should also make explicit how
requests for attorney fees or declaratory or injunctive relief—issues that have frequently required judicial interpretation under the cur- rent Rule 68—should be treated.
Second, Rule 68 should be modified to provide an explicit procedural mechanism for a court to assess whether an offer truly provides full relief, and to enter judgment if the offer provides such relief. Before Camp- bell-Ewald, defendants and lower courts diverged with respect to the exact mecha- nism for entering judgment pursuant to an offer of judgment. The Campbell-Ewald major- ity and Chief Justice Roberts’ dissent both pointed to depositing a check with the court as a possible means to end a plaintiff’s case, but the text of the only Federal Rule of Civil Procedure concerning such deposits—Rule 67—says nothing about entering a judgment based on such a deposit. The rule should be amended to provide a clear procedural mechanism for entering judgment based on an offer of full relief. Any unresolved dam-
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