Defendant Must Prove Offer Better Than Judgment

[David A. Szwak]

In determining the value of the relief obtained, for purpose of determining entitlement to attorney fees and costs after an offer of judgment, the defendant bears the burden of showing that the offer of judgment was more favorable than the judgment. Fed.Rules Civ.Proc.Rule 68.

Reiter v. MTA New York City Transit Authority, 457 F.3d 224, 98 Fair Empl.Prac.Cas. (BNA) 968, 98 Fair Empl.Prac.Cas. (BNA) 1032, C.A.2 (N.Y.), July 20, 2006 (Docket No. 04-5420-CV.)

[David A. Szwak]

In determining the value of the relief, the defendant bears the burden of showing that the Rule 68 offer was more favorable than the judgment. See Wright § 3006.1 (“Rule 68 is actually a tool for defendant to use, and defendant alone determines the provisions of the offer. Since defendant has drafted those provisions, the courts generally interpret the offer against the defendant. Consistent with that, the burden should be on defendant to demonstrate that those provisions are in fact more favorable than what plaintiff obtained by judgment.â€