How not to write a Rule 68 offer

In federal litigation, the defendant can try to settle the case through a Rule 68 offer of judgment. The process is what it sound like: the defendant offers a "judgment" for a sum of money. A shrewd Rule 68 offer will note that this amount of money includes the plaintiff's attorneys' fees expended until that date; that will put the case to rest for good without further litigation and costs. What happens if the Rule 68 is vague as to this point?

The case is Parks v. Stevens, a summary order issued on December 6. This is a case litigated by a major New York City civil rights firm, which alleges that the plaintiff's developmentally-disabled daughter died while in the case of of the State Office for People with Developmental Disabilities. The state served plaintiff with a Rule 68 offer, which reads:

Plaintiff shall, voluntarily and with prejudice, dismiss any and all claims for all damages arising from the facts alleged which were, are, or could be brought in this Court, against any and all Named Defendants, including compensatory and punitive damages, for which the State of New York or any of its Agencies would be responsible to pay, whether directly or via indemnification, in exchange for a payment of two million, two hundred and fifty thousand ($2,250,000.00) dollars. Plaintiff’s acceptance shall resolve all of these claims and shall preclude any further award beyond the amount stated in the offer prior to the offer’s being filed.

The Rule 68 offer does not clearly say anything about attorneys' fees. Under the cases, Rule 68 offers must clearly say they include fees. That case is Barbour v. City of White Plains, 700 F.3d 631 (2d Cir. 2012), a case that every municipal lawyer should read to avoid the costly mistake of not including fees in the Rule 68 offer. This prompted plaintiff's attorneys' to move for attorneys' fees, which can be sizable. 

The district court said the Rule 68 encompassed attorneys' fees because it says plaintiff's "acceptance 'shall preclude any further recovery or award beyond the amount stated in the offer.'” That might include attorneys' fees, but it might not, says the Court of Appeals (Sack, Lynch and Park). Since this language is ambiguous as to whether it includes attorneys' fees, the language is interpreted against the drafter, the State of New York. Plaintiff will get her fees in this case.