Non-monetary Relief Defeating Offers of Judgment

[David A. Szwak]

If a plaintiff/consumer rejects an Offer of Judgment under Federal Rule of Civil Procedure 68 and then does not recover an award greater than the offer, the defendant's costs may shift to the plaintiff. However, if the consumer gets any other type of relief not offered in the Offer of Judgment, such as an order directing the CRA to correct the credit report, this element of the award may prevent the Offer of Judgment from having effect. See Lightfoot v. Walker, 619 F.Supp. 1481, 1485 (D.C.Ill.,1985) (court goes on to specify that the order entered as part of final judgment had various equitable and affirmative remedies ordered by the court, i.e., injunctive and mandatory relief, which made the OJ less favorable than the ultimate judgment):

While this Court openly embraces the Marek decision in light of the low likelihood of settlement in civil rights actions, it is not applicable to the case at hand for the simple reason that the judgment obtained was far more favorable than any offer of settlement. The defendants contend that a careful comparison of the final order with their offers of settlement reveals that mathematical precision exists. Notwithstanding the fact that there is inherent difficulty in comparing settlement proposals in cases such as this, the Court feels obligated to briefly specify the inadequacies of the defendants' offers since they have devoted a great deal of time to this defense.