A few days ago I was approached with a Federal Rule of Civil Procedure 68 (hereinafter “Rule 68”) offer of settlement. The defendants in the case had filed a modest offer in the court.
A Rule 68 offer is an interesting proposition. They are two things you can do when you are the plaintiff and receive such an offer.
Accept: you can call the opposing attorney and notify them you accept their offer and will sign a settlement.
Delcine: you can file a Notice of Opposition to Offer of Settlement in the court, or you can simply ignore the offer as they have a time limit.
The purpose of the Rule 68 is to settle cases so they do not go to trial.
If you are a pro se litigant, there are risks to not accepting this offer of settlement. To understand you first need to read Rule 68:
More than 10 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 10 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment [….] If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
What this means is that you could pay the defendant’s legal fees if you do not end the case with a judgement greater than the offer. In consumer cases such as a FDCPA claim, the offer is often the maximum of the statutory damages possible. FDCPA=$1000 per defendant. If you don’t have any actual damages, this offer may well be worth your while. If the offer is more than the statutory damages of your case and you dont allege any actual damages, this offer is better than you are likely to get in a judgement. The example I was shown recently was such a situation and the offer was too good to pass up.
Let me know if you have any questions.
Fight the Good Fight, Boiler