Rule 68 is one of the more innocuous provisions of the Federal Rules of Civil Procedure. It permits a defendant, prior to trial, to make an offer to have a judgment entered against it, generally in a sum the plaintiff finds acceptable. Its intended benefit is to permit both sides to a controversy to avoid the risks of trial, yet conclude the litigation on terms acceptable to both.
Yet notwithstanding its goal of amity, today Rule 68 is the eye of a storm brewing between at least two directly conflicting decisions, one from the Southern District and one from the Eastern District (not to mention internal strife within the former vicinage). Indeed, the Eastern District decision is already on appeal to the parent tribunal, and, as such, it is a foregone conclusion that the U.S. Court of Appeals for the Second Circuit will have to make a decisive ruling, and soon, to bring the internecine conflict to an end.
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