Addressing What Isn’t There: How District Courts Manage the Threat of Rule 68’s Cost-Shifting Provisions in the Context of Class Actions

By:  Jack Starcher


For almost two decades now, courts have struggled with a seemingly irreconcilable conflict between Rule 23 class actions and Rule 68 offers of judgment. The apparent tension between these two rules arises in the limbo between the filing of a putative class representative’s complaint and the court’s resolution of the class certification motion. During this time the class has not yet been certified, so defendants are able to make Rule 68 offers to putative class representatives as individuals. Rule 68’s cost-shifting provision then pressures putative class representatives to settle before class certification can be completed. In this way an individual Rule 68 settlement offer can “pick off” a putative class representative before a court is able to consider the merits of class certification. Thus, when a Rule 68 “pick off” offer is made to a putative class representative, judges are forced to balance the prosettlement objectives of Rule 68 against the benefits of Rule 23 class actions and the need to protect putative class members. This issue has come to the attention of district courts through motions to strike these individual offers. These offers, plaintiffs argue, exert inappropriate pressure on putative class representatives and should be preemptively stricken to protect the putative class. While most district courts to confront this issue agree with plaintiffs and strike the Rule 68 “pick off” offer, this Note advocates for a different approach. By refusing to strike Rule 68 “pick off” offers and providing guidance to parties as to the effect of the offer, courts can simultaneously respect the purposes of both Rule 68 and Rule 23.


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