Rule 68: Can Fee Shifting Work in Employment Cases?

There is no denying that the potential of recovery by plaintiffs of costs and fees in cases brought under federal and state discrimination and wage laws drives settlement of litigated claims.  Unless an employer defendant gets a defense verdict, a trial award to a Plaintiff of even a nominal amount will result in recovery of fees and costs by the plaintiff that are likely in excess of $100,000. Juries have no knowledge that a “compromise” verdict of a few thousand dollars for a plaintiff will ultimately result in a judgment for the damage amount, plus a considerable award of attorney fees.

The risks associated with trial in employment law is primarily borne by employers, since there is no recovery of expended fees in the event there is a defense verdict.  Plaintiff’s counsel will likely be out fees and costs of litigation in the event of a defense verdict, but the plaintiff him/herself has very limited exposure. The realities of this disproportionate risk results in plaintiffs bringing claims that oftentimes have little or no evidentiary support, without any real risk for pursuing frivolous claims. He/she is no worse off after litigation, even if there is a defense verdict.  However, an employer has already expended considerable defense costs and fees to be proven correct. 

Even in a case where there is potentially some issue with liability for the employer, but where the plaintiff has a very limited damage number, it can sometimes be difficult to settle cases. Plaintiff’s attorneys sometimes agree to “split” the finally-awarded amount (judgment plus fees), resulting in little incentive for a plaintiff to accept a settlement offer that covers their limited damages – in the hopes that there is a bigger payout by taking the case to trial and sharing in the award of fees. 

There are not many tools that an employer has to try to level the playing field.  One option for consideration is an early offer of judgment utilizing Rule 68 of the Federal Rules of Civil Procedure.  This tool will not be right for every case, but is something worth considering. 

While Rule 68 offers may result in recovery of fees and costs pursuant to offers of judgment under Title VII claims, the FLSA, ADA, and ADEA never permit a defendant/employer to recover attorney fees - only allowable costs. When a defendant’s Rule 68 offer of judgment is rejected and the plaintiff receives a lower judgment at trial, the plaintiff is only required to pay the defendant’s costs. While a prevailing party is generally entitled to the recovery of costs in federal court without invoking Rule 68, some circuits limit costs recoverable to prevailing defendants in employment actions.  Therefore, a Rule 68 offer of judgment may be employed as a useful tool to entitle a prevailing defendant to recover more litigation costs in these circuits. 

Depending on what statute a plaintiff/employee sues under, there are two different results for a plaintiff’s accrual of fees when a defendant makes a Rule 68 offer that is more than the plaintiff receives at trial: (1) if suing under Title VII, Rule 68 does not permit a plaintiff to recover attorney’s fees; (2) if suing under the FLSA, ADA, or ADEA, Rule 68 does permit the plaintiff to recover attorney’s fees. Therefore, an offer of judgment is likely a better strategy for an employer in a Title VII case rather than an FLSA, ADA, or ADEA case. Additionally, there are some circumstances where the plaintiff’s fees may be limited by the court.

If the plaintiff prevails at trial after rejecting an offer of judgment, the defendant is still required to pay fees and costs up until the date the Rule 68 offer was made, even where the rejected offer is more than the plaintiff’s judgment. Rule 68 only requires a plaintiff to pay for the defendant’s costs accrued after the offer is made. The Rule is meant to encourage plaintiffs to settle, but for many plaintiffs the penalty of paying the defendant’s costs may not be overly burdensome. For that reason, if an employer is serious about making an offer of judgment, it is important to consider making it at the earliest stages of the case to limit the amount of pre-offer fees and costs for both parties.

Because the purpose of Rule 68 is to encourage settlement, the court’s process in awarding attorney fees takes into account the amount of the offer, when the offer was made, and whether it was reasonable to continue the litigation process after receiving the offer. Courts consider these factors in both Title VII and FLSA/ADA/ADEA cases.

Employers may be hesitant to make offers of judgment due to the stigma associated with such an offer.  If the offer is accepted, the amount will be of public record. Employers may feel this will encourage others to make claims, which is clearly a valid concern. Fortunately, in federal court, unaccepted offers are not filed of record, but can still be used if a plaintiff is less successful at trial than the offer that was made. This benefit makes it worthwhile to at least consider the option.

Rule 68 Offers of Judgment Generally

“The purpose of Rule 68 is to encourage the settlement of litigation.” Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S. Ct. 1146, 67 L. Ed. 2d 287, (1981). “Rule 68 provides an additional inducement to settle in those cases in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain.” Id.

“Because prevailing plaintiffs presumptively will obtain costs under Rule 54(d), Rule 68 imposes a special burden on the plaintiff to whom a formal settlement offer is made.” Id. If a plaintiff rejects a Rule 68 settlement offer and the final judgment award is less than the offer, the plaintiff will be required to pay the costs incurred to the defendant after the offer. Id.

A Rule 68 offer of judgment can be made only after a suit has been filed, but it must be made at least fourteen days before the date set for trial. Fed. R. Civ. P. 68(a); Lesley S. Bonney et. al., Rule 68: Awakening A Sleeping Giant, 65 Geo. Wash. L. Rev. 379, 383 (1997); see Clark v. Sims, 28 F.3d 420, 424 (holding that “a Rule 68 offer of judgment must be made after the legal action has been commenced. Offers of compromise made before suit is filed do not fall within the rule”). The opposing party will then have fourteen days after being served to send written notice accepting the offer. Fed. R. Civ. P. 68(a).

An unaccepted offer does not preclude a later offer of judgment. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. Fed. R. Civ. P. 68(b). Rule 68 has no application to settlement offers made by the plaintiff. Delta Air Lines, 450 U.S. at 350.

Rule 68 offers of judgment should specifically mention whether attorney’s fees and costs are included in the amount offered. § 69:84. Offers of judgment, 2 Emp. Discrim. Coord. Analysis of Federal Law § 69:84. If a defendant is considering making an offer, it is best to do so early so as not to accrue as much in costs on either side. Although Rule 68 does not require any particular language in an offer, it does provide that the offer must also include the plaintiff’s costs incurred up to the date of the offer. Ian H. Fisher, Federal Rule 68, A Defendant's Subtle Weapon: Its Use and Pitfalls, 14 DePaul Bus. L.J. 89, 96 (2001).

A defendant may potentially block the plaintiff from obtaining his or her post-offer attorney’s fees through a successful Rule 68 offer. A. Jonathan Trafimow, Making Rule 68 Offers of Judgment in Employment Cases, Law360, New York (June 29, 2016) *Making-Rule-68-Offers-Of-Judgment-In-Employment-Cases.pdf ( If the defendant wins on merits, then Rule 68 does not apply and the defendant is not entitled to payment from the plaintiffs for its post-offer costs. Delta Air Lines v. August, 450 U.S. 346, 351–52 (1981) (more on this case below).

Whether the Governing Statute Includes Attorney’s Fees in Its Definition of “Costs”

A major issue with Rule 68 Offers of Judgment is that the drafters failed to define “costs.” Before making an offer, a defendant needs to consider whether a court will award the plaintiff its attorneys’ fees. Ian H. Fisher, Federal Rule 68, A Defendant's Subtle Weapon: Its Use and Pitfalls, 14 DePaul Bus. L.J. 89, 96 (2001). This can be particularly problematic in cases involving fee-shifting statutes.

In Marek v. Chesny, the Supreme Court determined the effect of Rule 68 on statutes involving fee-shifting of attorney fees. 473 U.S. 1, 8, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985). The Court reasoned that “the most reasonable inference is that the term ‘costs’ in Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute or other authority.” Id. Further, the Court held that “all costs properly awardable in an action are to be considered within the scope of Rule 68 ‘costs.’” Id. Ultimately, the Court held that “absent congressional expressions to the contrary, where the underlying statute defines ‘costs’ to include attorney’s fees, we are satisfied such fees are to be included as costs for purposes of Rule 68.” Id. at 8–9.

Title VII’s Definition of Costs Implicitly Includes Attorney’s Fees

“Fee-shifting statutes in the employment discrimination context only provide for the prevailing plaintiff to obtain attorney’s fees.” A. Jonathan Trafimow, Making Rule 68 Offers of Judgment in Employment Cases, Law360, New York (June 29, 2016) at 2, *Making-Rule-68-Offers-Of-Judgment-In-Employment-Cases.pdf ( Title VII defines “costs” to include attorney’s fees by stating that “the court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee (including expert fees) as part of the costs.” 42 U.S.C. § 2000e-5(k) (emphasis added). Costs are interpreted to implicitly include attorney’s fees in a Title VII case.

Because Title VII’s definition of “costs” includes attorney fees, a plaintiff cannot recover attorney fees after a rejected Rule 68 offer of judgment, even when the plaintiff prevails at trial, but a plaintiff can still recover generated attorney fees up until the point of the offer. “[W]hen a plaintiff rejects a defendant’s Rule 68 offer, and then obtains less than that offer at trial, Rule 68 will not permit a prevailing defendant to obtain payment from the plaintiff for defendant’s attorney fees.”  see, e.g., Tai Van Le v. University of Pennsylvania, 321 F.3d 403, 411 (3rd Cir. 2003) (holding that defendant is not entitled to attorney’s fees in in Title VII case when plaintiff received a less favorable judgment than defendant’s Rule 68 offer). Meaning, a defendant is only entitled to costs after a plaintiff rejects a Rule 68 offer and receives less at trial.

Title VII offers of judgment may include a specified amount of attorney’s fees or merely provide for a reasonable amount of fees to be determined by the court. § 69:84. Offers of judgment, 2 Emp. Discrim. Coord. Analysis of Federal Law § 69:84. “The troublesome questions concerning attorney’s fees in the context of offers of judgment may be avoided by defendants who are sincerely interested in settling the Title VII claim, without litigating, by routinely inserting a ‘reasonable attorney’s fees to be determined by the court’ provision in all offers of judgment, and by plaintiffs with similar interests accepting all reasonable offers of judgment in lieu of trial.” Id.

It is important to consider making an offer of judgment at the earliest opportunity to potentially limit each party’s costs and attorney’s fees. If the defendant’s offer is rejected and the plaintiff’s judgment is less than the offer, the defendant is only required to pay costs and attorney’s fees generated before the offer was made.

Although attorney fees are implicitly included as costs under Title VII, a defendant should specify that its offer includes costs and attorney fees.

            Two cases for consideration:

In Sanchez v. Prudential Pizza, Inc., 709 F.3d 689 (10th Cir. 1999),an employer’s offer of judgment, which specified that it applied to “all of Plaintiff’s claims for relief” in her Title VII suit, did not include the employee’s claim for attorney fees and costs. Id. at 690. Thus, the employee’s award of attorney fees and costs was warranted, even though the employee sought attorney fees in her complaint. Id. at 694. The Seventh Circuit noted that “Rule 68(a) requires the offer to include “specified terms.” Id. at 692. The court reasoned that “an ambiguous offer puts the plaintiff in a very difficult situation and would allow the offering defendant to exploit the ambiguity in a way that has the flavor of ‘heads I win, tails you lose.’” Id. at 693–94. For instance:

[i]f the plaintiff accepts the ambiguous offer, the defendant can argue that costs and fees were included. If the plaintiff rejects the offer and later wins a modest judgment, the defendant can then argue that costs and fees were not included, so that the rejected offer was more favorable than the ultimate judgment and that the plaintiff’s recovery of costs and fees should be limited according.

Id. at 694 (emphasis in original). The Tenth Circuit held that:

‘[i]f an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion it determines to be sufficient to cover the costs.’

Id. (quoting Marek, 473 U.S. at 6).  Holding: if terms of Rule 68 offer are ambiguous, it will be construed against the defendant-offeror.

In Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981), the plaintiff, a flight attendant, filed a complaint against the defendant, Delta Air Lines, alleging that she had been discharged because of her race in violation of Title VII. Id. at 348. She sought reinstatement, about $20,000 in backpay, attorney’s fees, and costs. Id. The defendant made a formal offer of judgment to the plaintiff in the amount of $450. Id. The plaintiff did not accept the offer and at trial the plaintiff lost. Id. at 348–49. The district court entered judgment in favor of the defendant and directed that each party bear its own costs. Id. at 349.However, the defendant then moved for modification of judgment, contending that under Rule 68 the plaintiff is required to pay the costs incurred by the defendant after an offer of judgment has been refused. Id. The court denied the motion on the ground that the $450 offer was not a good-faith attempt to settle the case. Id. The appellate court affirmed, holding that Rule 68 only applies if the defendant’s settlement offer was sufficient “to justify serious consideration by the plaintiff.” Id.

The issue in this case was whether the words “judgment finally obtained by the offeree” as used in Rule 68 should be interpreted to include “a judgment against the offeree as well as a judgment in favor of the offeree. Id. at 347–48 (emphasis in original).

The Court reasoned that the plain language of Rule 68 states that the rule applies when the defendant offers to have “‘judgment … taken against him.’” Id. at 351. The Court noted that because “the Rule obviously contemplates that a ‘judgment taken’ against a defendant is one favorable to the plaintiff, it follows that a judgment ‘obtained’ by the plaintiff is also a favorable one.” Id. Thus, the Court found that the Rulemakes clear that “it applies only to offers made by the defendant and only to judgments obtained by the plaintiff,” so the Rule was inapplicable to the plaintiff’s case.

Ultimately, the Supreme Court held that “the Federal Rule of Civil Procedure 68—which provides that if a plaintiff rejects a defendant's formal settlement offer ‘to allow judgment to be taken against him,’ and if ‘the judgment finally obtained by the offeree is not more favorable than the offer,’ the plaintiff ‘must pay the costs incurred after the making of the offer’—does not apply to a case in which judgment is entered against the plaintiff-offeree and in favor of the defendant-offeror.” Id. at 346.  Holding: a defendant is not entitled to costs in Title VII case where plaintiff rejects a Rule 68 offer and subsequently loses at trial.

FLSA, ADA, and ADEA’s Definition of Costs Does Not Include Attorney Fees

The FLSA provides for a mandatory award of attorney’s fees and costs to an employee who prevails on his or her claim. 29 U.S.C. § 216(b). The statute does not define costs as including attorney’s fees: “The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b) (emphasis added). The ADA and ADEA also do not include attorney’s fees as part of costs. 42 U.S.C. § 12205 (ADA); 29 U.S.C. § 626 (ADEA – incorporating fee-shifting provisions from FLSA).

If no Rule 68 offer is made, a prevailing plaintiff will recover both attorney’s fees and costs, whether the judgment is less than or higher than a previous settlement offer. On the other hand, if a Rule 68 offer is made by the defendant and the judgment for the plaintiff is less than the offer, the plaintiff will still recover fees to the date of the offer and the defendant will only recover costs incurred after the date of the offer.

Additionally, it appears that courts will take a Rule 68 offer into account when determining the amount of fees a plaintiff may recover. Dalal v. Alliant Techsystems, Inc., 182 F.3d 757, 761 (10th Cir. 1999). In Dalal, an ADEA case, the district court awarded fees generated before the Rule 68 offer, but only awarded half of the fees accrued after the offer. Id. The Rule 68 offer was $150,000 and the judgment at trial for the plaintiff was only $36,075. Id. The district court also lowered the plaintiff’s fee amount based on the “limited success” of his Title VII claim. Id. The Tenth Circuit held that the district court’s determination of fees was in its discretion, noting that “‘there is no precise rule or formula for making such determinations.’” Id. at 763 (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 990 (10th Cir. 1996)).

In deciding an attorney fee award, Courts consider various factors.  In Haworth v. State of Nev., 56 F.3d 1048 (9th Cir. 1995), state employees sued the state under FLSA. The state’s offer of judgment was more than the final judgment for the employees. Id. at 1050. The district court awarded the employees costs and attorney fees. Id. The Ninth Circuit Court held that the state’s offer of judgment did not bar the award of the attorney fees under FLSA, even though the final judgment was less than the Rule 68 offer. Id. at 1052. The Court further held that in determining what amount of attorney’s fees are reasonable in an FLSA action with an offer of judgment, a court must consider the following: the amount of the offer, the stage of litigation at which the offer was made, what services were rendered thereafter, the amount obtained by the judgment, and whether it was reasonable to continue litigating the case after the offer was made. Id. at 1052–53. The Ninth Circuit vacated the district court’s award of costs to the plaintiff because they were not entitled to any costs incurred after they rejected the Rule 68 offer. Id.


While an offer of judgment will not make sense in every employment case, it is worthwhile to consider, especially in Title VII cases.  However, its effectiveness diminishes as a case progresses, so it is important to consider an offer of judgment very early in the litigation. 


Lesley S. Bonney et. al., Rule 68: Awakening A Sleeping Giant, 65 Geo. Wash. L. Rev. 379, 383 (1997).

Ian H. Fisher, Federal Rule 68, A Defendant's Subtle Weapon: Its Use and Pitfalls, 14 DePaul Bus. L.J. 89, 96 (2001).

Kevin C. Johnson, Rule 68 and the High Cost of Litigation: The Best Defense Weapon of Which You've Never Heard and Its Missed Opportunity to Promote Settlement, 10 Charleston L. Rev. 475 (2016).

A. Jonathan Trafimow, Making Rule 68 Offers of Judgment in Employment Cases, Law360, New York (June 29, 2016) at 2, *Making-Rule-68-Offers-Of-Judgment-In-Employment-Cases.pdf (

§ 69:84. Offers of judgment, 2 Emp. Discrim. Coord. Analysis of Federal Law § 69:84.

Malinda Matlock is a Partner with Rhodes Hieronymus in Oklahoma. She practices in the areas of Professional Liability (Medical, Legal, A&E, E&O, D&O), Employment Litigation, Sexual Misconduct, Premise Liability, Transportation, Bad Faith Insurance Claims, and Coverage Disputes.

Denelda L. Richardson is a partner in Rhodes Hieronymus whose practice focuses on litigation and appellate practice, with an emphasis on claims of employment discrimination under both federal and state law.

Malinda and Denelda would like to give special thanks to Meredith Tan, Law Student, for her enthusiastic assistance in researching how courts across the country have applied Rule 68 in the employment context.