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

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

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


Wednesday, October 21, 2020

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, October 2, 2020

or call 1-800-926-7926

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 Fulton Dental L.L.C. v. Bisco Inc. decision and subsequent circuit decisions since Fulton Dental, 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 resolve cases efficiently, 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 L.L.C. 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. Since Fulton Dental the Second, Sixth, and Ninth Circuits have all entered rulings that the pick-off route is effectively closed to class defendants regardless of what mechanism they employ to attempt to "moot" the plaintiff's claim.

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 correctly 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.

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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 L.L.C. v. Bisco Inc.
  5. Circuit cases since Fulton Dental
    1. Second Circuit
    2. Sixth Circuit
    3. Ninth Circuit
  6. Strategic considerations with Rule 68 offers
  7. Drafting the Rule 68 offer of judgment: best practices
  8. Adapting Rule 68 in arbitration

Benefits

The panel will review these and other key issues:

  • How has the Supreme Court's Campbell-Ewald ruling impacted offers of judgment in wage and hour collective actions?
  • What is the anticipated impact of the Seventh Circuit's 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?
  • How should plaintiffs' counsel evaluate offers of judgment in employment litigation?

Faculty

Bernabei, Lynne
Lynne Bernabei

Partner
Bernabei & Kabat

Ms. Bernabei has been litigating employment discrimination, civil rights, and whistleblower cases for over thirty...  |  Read More

Everhart, Yvette
Yvette D. Everhart

Shareholder
Sass Law Firm

Ms. Everhart’s practice focuses on litigation of employment discrimination cases, and she has significant...  |  Read More

Weber-A. Michael
A. Michael Weber

Shareholder
Littler Mendelson

Mr. Weber represents employers in cases involving wrongful termination, breach of contract, enforcement and defense of...  |  Read More

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