My July column in Pennsylvania Law Weekly considers the implications of the court of appeals’ recent decision in Interfaith Community Organization v. Honeywell International, No. 11-3813 (3d Cir July 8, 2013). There, the court held that a defendant in an environmental citizen suit could offer judgment under Federal Rule of Civil Procedure 68, at least for the attorneys’ fees portion of the judgment. Some limited older authorities had suggested that Rule 68 could not be used in a citizen suit because it would tend to chill enforcement. See, e.g., Public Interest Research Group of New Jersey v. Struthers-Dunn, 28 Env’t Rep. Cas. (BNA) 1218 (D.N.J. Aug. 17, 1988). If a plaintiff does not recover more than the offered judgment, then the attorneys’ fees shifting provision flips, and the defendant recovers the cost of litigating from the time of the offer. The court could reverse in banc, but for now, citizen suit defendants may wish to take advantage of this tool, as may some plaintiffs. To read Offer of Judgment in Federal Court Allowed in Citizen Suits, 36 Pa. L. Weekly 670 (July 23, 2013), click here.
