Fee Shifting in Civil Litigation: Leveraging New Court Rulings and Rule 68 Offers of Settlement

Obtaining and Contesting Attorney Fees and Cost Awards

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, February 17, 2015

Recorded event now available

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Course Materials

This CLE course will provide litigators with techniques for fee shifting. Our panel will discuss and offer insights into new court rulings and the interaction between FRCP 68 offers of settlement and statutory exceptions to the American rule governing the circumstances under which fees may be shifted.


Litigants, always concerned about litigation costs, have to weigh the impact of attorney fees when deciding whether and how to pursue a lawsuit. Counsel must be prepared to navigate varying fee-shifting statutes across jurisdictions. 

Effective leveraging of fee-shifting statutes can act as a powerful incentive to consider settlement for the opposing party.  As such, litigators will need to coordinate fee-shifting techniques with the benefits of Rule 68 offers of settlement.

On May 18, 2014, the Delaware Supreme Court’s decision in the ATP case allowed businesses to include fee-shifting provisions within its bylaws. The mere ability to include such a provision in the bylaws can have a substantial impact on resolving shareholder suits. Counsel should have a firm grasp on the strategic advantages of such a provision for clients and companies.

Listen as our authoritative panel reviews the statutory exceptions to the American rule, FRCP 68 and settlement offers, and fee-shifting clauses in contracts to include a discussion of the impact of Delaware’s ATP ruling regarding fee-shifting language in company bylaws.



  1. Statutory exceptions to the American rule
  2. FRCP 68 and settlement offers
  3. Fee-shifting clauses in contracts
    1. ATP decision


The panel will review these and other key issues:

  • What are the exceptions to the American rule as it relates to fee shifting in civil litigation?
  • How can counsel effectively leverage fee-shifting statutes to encourage settlement? How does FRCP 68 impact the analysis?
  • Under what circumstances should counsel recommend that fee-shifting language be included in contracts—and in company bylaws, in light of the ATP decision?
  • What are best practices for reconciling the varying fee-shifting statutes and rules?


Evan Mandel
Evan Mandel

Mandel Bhandari

Mr. Mandel's clients include both plaintiffs and defendants in a wide variety of civil suits, including...  |  Read More

Andrew J. Marnach
Andrew J. Marnach

McCollum Crowley Moschet Miller & Laak

Mr. Marnach focuses his practice on complex tort litigation and construction law. He represents business owners,...  |  Read More

Daniel J. Singel
Daniel J. Singel

McCollum Crowley

Mr. Singel's practice is devoted to civil defense litigation.  He also advises clients on questions of...  |  Read More

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