Nicolas Ortiz has an excellent post on offers of judgment in FDCPA cases. We previously blogged about this and will continue to do so as this strategy is being used more and more by debt collectors who get sued.
As Nicolas Ortiz puts it, the basic gist of an offer of judgment is:
If a plaintiff rejects an offer of judgment and recovers less that the offer amount at trial, he must pay the defendant’s costs. These costs include transcript costs and the like, but it do not include the biggest ticket item, attorney’s fees. As the First Circuit put it: “Rule 68 can never require prevailing civil rights plaintiffs to pay defendants’ post-offer attorney’s fees.” Crossman v. Marcoccio, 806 F.2d 329, 334 (1st Cir. 1986). The same holds true for other, non-civil rights cases. Rule 68 cannot be used to shift fees.
Debt collectors use offers of judgment as a weapon but we like to turn this around on them. We’ll accept ones that are a good deal and then remind the court in every future case that a judgment exists against the defendant. We have never had a defendant want to do another offer of judgment after doing one (or a group at one time) with us…… Maybe they don’t like hearing about previous judgments in future cases? 🙂
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