The law is replete with its own little ironies, and the U.S. Supreme Court has just delivered one in the form of Campbell-Ewald Inc. v. Gomez.1 There the court ruled that in a class action, where a defendant makes an offer to settle to the named plaintiff and that plaintiff does not accept the offer, that does not moot the case. Federal Rule of Civil Procedure 68, the Offer of Judgment rule, requires more in order to declare a case nonjusticiable. Unless the defendant does something more substantial, the matter remains “live,” and the Cases and Controversies Clause of Article III is satisfied.2
Rule 68 is quite straightforward. A defending party, at any time more than 14 days before the commencement of trial, may serve the opposition party with an offer permitting the entry of judgment against that defendant. The offer must be made upon specific terms, and allow for the payment of court costs accrued to date.3 The plaintiff may then accept the proposal within the next 14 days. The clerk must then enter judgment.4 If the offer is unaccepted, then it is deemed withdrawn, but the offer of judgment can be renewed or a new one proffered.5 Its intended benefit is to permit both sides to a controversy to avoid the risks of trial,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.
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