Offers of Judgment in Employment Litigation After Campbell-Ewald and Fulton Dental

Analyzing the Viability of Rule 68 or Rule 67 as a Strategic Tool for Employers to Moot Individual, Class and Collective Claims

A live 90-minute CLE webinar with interactive Q&A


Thursday, September 28, 2017 (in 6 days)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT


This CLE webinar will discuss the viability of Rule 67 or Rule 68 “pick-offs” as a strategic tool for employers’ counsel to moot individual, collective and class claims. The panel will discuss the continuing impact of the U.S. Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, provide insights into the Seventh Circuit’s recent Fulton Dental LLC v. Bisco Inc. decision, and outline strategies for employers facing individual, collective and class actions.

Description

Rule 68 offers of judgment and Rule 67 deposits are strategies used by defense counsel to efficiently resolve cases, whether individual, class or collective. An employee who rejects an employer’s settlement offer is liable for post-offer costs if he or she recovers less at trial than the settlement offer amount.

The U.S. Supreme Court’s 2016 Campbell-Ewald Co. v. Gomez decision dealt a blow to employers facing class actions in holding that an unaccepted Rule 68 offer of judgment does not moot a plaintiff’s claim. The Court, however, left open the possibility that a defendant may be able to moot a case by other means, including by tendering actual payment of the plaintiff’s requested relief.

The Seventh Circuit expanded on the Campbell-Ewald ruling in its June 20, 2017 decision, Fulton Dental LLC v. Bisco Inc., holding that depositing an unaccepted settlement offer with a federal court under Rule 67 also does not moot a putative class action.

Notwithstanding, Rule 68 offers retain value in the appropriate case. Unaccepted Rule 68 offers of judgment still permit a defendant to shift post-offer costs to the employee, and they can cut off an employee’s right to attorney fees if properly drafted.

Employers’ counsel using Rule 68 offers should carefully consider the proper timing of the offer, impact of the mootness doctrine, and potential for the judgment to be used against the employer in future litigation.

Listen as our authoritative panel of employment litigators discusses the current viability of Rule 67 or Rule 68 “pick-offs” in employment cases. The panel will discuss the potential consequences for employers making settlement offers and effective strategies for using offers of judgment.

Outline

  1. Rule 68 offers of judgment—overview
  2. Rule 67 deposits with a federal court—overview
  3. Campbell-Ewald Co. v. Gomez and mootness
  4. Implications of Fulton Dental LLC v. Bisco Inc.
  5. Strategic considerations with Rule 68 offers
  6. Drafting the Rule 68 offer of judgment—best practices

Benefits

The panel will review these and other key issues:

  • How has the Supreme Court’s Campbell-Ewald ruling affected offers of judgment in wage and hour collective actions?
  • What is the anticipated impact of the Seventh Circuit’s recent Fulton Dental decision?
  • What strategic advantages does a Rule 68 offer of judgment present for employment counsel defending discrimination or wage and hour litigation?
  • What are some strategic considerations for employment litigators evaluating whether and when to make a Rule 68 settlement offer?
  • What are the best practices for drafting effective offers of judgment?

Faculty

Stephen E. Fox, Shareholder
Polsinelli, Dallas

Mr. Fox has spent more than 25 years in boardrooms and courtrooms acting as a trusted advisor to and litigation advocate for clients—from Fortune 500 corporations to entrepreneurs—in complicated and often high-profile business and employment disputes. His ability to synthesize complex facts and arguments into understandable and memorable pieces of information makes him a compelling courtroom advocate, as well as a frequent resource to print, broadcast and radio media. 

Gabrielle Levin, Partner
Gibson Dunn & Crutcher, New York

Ms. Levin's practice focuses on representing corporate clients in securities, employment, and general litigation matters. She specializes in securities class actions, shareholder derivative litigation, SOX and Dodd-Frank whistleblower litigation, and employment litigation. Ms. Levin also has significant experience representing media, technology and entertainment companies in a wide array of matters, including government investigations, IP litigation, and privacy and defamation cases.

Abigail Pessen, Mediator and Arbitrator
Abigail Pessen Dispute Resolution Services, New York

Ms. Pessen started her dispute resolution firm in 2000, after years in the trenches as a litigator. She mediates business and employment disputes and serves on the American Arbitration Association's Master Mediation Panel for complex commercial mediations and is also an arbitrator for the American Arbitration Association's Large, Complex Case, Commercial and Employment Panels. Ms. Pessen is the immediate past Chair of the New York State Bar Dispute Resolution Section.


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