In his article entitled “Revisiting the American Rule: Fee-Shifting Strategies for NY Litigators” (New York Law Journal, February 8, 2019), Robert S. Friedman argues that an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure is a potent means for a defendant to limit its exposure in litigation. That is undoubtedly true, but Rule 68 does not sweep quite as broadly as Mr. Friedman suggests.

He states, “In Marek v. Chesney, 473 U.S. 1 (1985), the U.S. Supreme Court held that, while attorney fees are not recoverable as part of costs, where there is statutory fee-shifting, a Rule 68 offer of judgment can establish the baseline for a successful litigant otherwise entitled to legal fees.” Mr. Friedman goes on to contend that “a civil defendant can stop the clock on statutory attorney fees by making an offer of judgment early in a litigation.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]