Sometimes even surrender doesn’t work as a way to cut off the expense of litigation. A good Rule 68 offer of judgment will moot the claims and require dismissal under the holding in Deposit Guaranty National Bank v Roper, but making such an offer in an ADA lawsuit can be very difficult.  A recent case from the Middle District of Florida, Duldulao v. La Creperia Café, illustrates the problem. The plaintiff’s complaint was, according to the court, “an obvious cut and paste job” that failed to give fair notice of the claim. The defendant’s offer of judgment was, of necessity, equally vague. The court concluded that because it could not meaningfully compare the offer of judgment to whatever relief might finally be granted the offer of judgment process was “unavailable.” It refused to dismiss based on the Rule 68 offer.

The court did dismiss under Rule 12(b)(6) but many cases have declined to dismiss complaints even less specific than that in Dudulao, so this is of little comfort to defendants. A pleading that is vague or leaves the door open for the later discovery of violations (as most do) forces the defendant to choose between making an offer that is insufficiently vague and making a general offer to remediate all violations, which amounts to writing a blank check to the remediation contractor. Vague offers may also fail to give the court a basis for determining that later relief is “not more favorable.” In National Alliance for Accessibility v. Hull Storey the court declined to cut off fees at the time of the offer of judgment because, among other things, a later settlement included “very specific remedial measures.”

If an offer of judgment survives the Duldulao problem it may still fail to cut off attorneys fees for the plaintiff’s counsel. The Ninth Circuit, in Wyatt v Ralph’s Grocery Store, concluded that because attorney’s fees are not “costs” a Rule 68 offer of judgment does not cut them off even if the plaintiff does not obtain a more favorable judgment. The court was probably influenced by what looked like gamesmanship on the part of the defendants, but the Ninth Circuit has consistently followed this reasoning. Based on the same reasoning courts have declined to award the defense attorney’s fees under the cost shifting provisions of Rule 68, even when the final judgment was far less favorable to the plaintiff than the offer of judgment.

Finally, an ADA offer of judgment, as in any other offer of judgment, is the practical requirement that the offer explicitly state whether it includes attorney’s fees and costs. Since the Supreme Court held in Marek v Chesny that a Rule 68 offer must include costs a number of courts have agreed that it must include both costs and any statutory attorney’s fees. If it isn’t clear that the offer of judgment is intended to include these things then the court can award fees and costs under the statute. Webb v. James, a 1998 case from the Seventh Circuit typifies the problem. The defendants in this ADA employment case made an offer of judgment that was a flat sum of money. The plaintiff accepted, and only then did the defendants state that the offer was intended to include attorney’s fees and costs. After collateral litigation about the meaning of the offer the Court of Appeals found that the district court properly awarded both costs and attorney’s fees in addition to the amount of the offer of judgment. The reasoning about fees seems to contradict the Ninth Circuit view, but that remains unresolved and yet another subject for litigation.

Whether an effective Rule 68 offer of judgment is even possible in an ADA accessibility case remains uncertain, but to have any chance of success such an offer must very specifically state what remedial work will be performed, and include an offer to pay costs and statutory fees through the date of the offer.  To make such an offer requires that the property owner know what real violations of the ADA exist and whether they can be remediated. As in every case, knowledge at the beginning is the key to ultimately reducing at the end.