Monthly Archives January 2016

The Supreme Court's opinion today in Campbell-Ewald v. Gomez, No. 14-857 significantly limits the defense tactic of making an offer of judgment to moot a plaintiff's or putative class representative's claim: We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists. In short, defendant cannot make a Rule 68 offer and then argue that an unaccepted offer renders the plaintiff's claim moot (i.e. no Article III standing). The cost-shifting consequence of plaintiff not accepting a Rule 68 offer remains: the plaintiff must pay costs incurred after the offer was made "if the judgment that the [plaintiff] finally obtains is not more favorable than the unaccepted offer."  Rule 68(d).  This is important, especially when a…

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