Intersection of Rule 68 and Title VII on Costs and Attorneys Fees

Law.com has the story of the 3rd Circuit's determination of the effect of a plaintiff turning down a Rule 68 offer, and then winning less at trial. Tai Van Le v. University of Pennsylvania (3rd Cir. This follows their earlier story on the district court's decision. The facts that led to the ruling were that the defendant made an offer of $50,000 and the jury awarded $35,000. Claiming that it should be entitled to attorneys fees for amounts expended after the Rule 68 offer, the defendant lost. The money quote from the court:

We hold that a defendant in a Title VII civil rights suit can never recover its attorneys' fees under Rule 68, because the triggering event of that rule alters the potential costs that are 'properly awardable' to a defendant under [Section] 1988.

The triggering event of Rule 68, an award for the plaintiff, means that defendant's can never meet the standard of showing the cause of action was frivolous. Among the cases cited in support of its is one from the Fifth Circuit. EEOC. v. Bailey Ford, Inc., 26 F.3d 570, 571 (5th Cir. 1994). And to make matters worse, the defendant was still required to pay $34,000 for the plaintiff's attorney fees incurred before the offer.