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Expert Analysis

Recovering Defense Costs With Rule 68 ... Maybe

Law360 (December 15, 2010, 12:26 PM EST) -- On its face, a Federal Rule of Civil Procedure 68 (Rule 68) offer of judgment has the appearance of a potentially powerful weapon for a defendant to use in a product liability lawsuit. Ostensibly, Rule 68 would allow a defendant to recover its post-offer costs if the plaintiff failed to recover damages in excess of the offer at trial. In doing so, the rule intends to facilitate settlement by making the litigants "think very hard" about the value of pursuing the lawsuit. U.S. v. Trident Seafoods Corp., 92 F.3d 855 (9th Cir. 1996), cert. den. 519 U.S. 1109....

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