During its next term, the Supreme Court will consider whether class-action defendants can end the cases against them simply by offering complete relief to individually named plaintiffs and offering nothing to the classes those plaintiffs purport to represent.1 The legal issue involves the intersection of two Federal Rules of Civil Procedure, namely the effect that Rule 68—which allows defendants to serve offers of judgment on specified terms—has on Rule 23, which governs class actions. The court’s guidance cannot come too soon, as circuit courts around the country have answered the question in different ways, and it remains an open question in the U.S. Court of Appeals for the Second Circuit.
Different Theories
Rule 68(a) authorizes defendants to “serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” Under Rule 68(d), if the plaintiff rejects the offer and ultimately obtains less relief than was included in the offer, the plaintiff “must pay the costs incurred after the offer was made.”
