The Southern District of Florida recently provided guidance regarding the treatment of nominal offers of judgment pursuant to Florida’s offer of judgment statute, Fla. Stat. §768.79. Offers of judgment are a powerful tool both in state court and in federal court for diversity cases in Florida. The prevailing party who has made such an offer may have a basis to obtain a fee award against the other party.

Much ‘game theory’ goes into the formulation of these offers, and particularly the amount to offer. A court may disallow a fee award to a prevailing party if the offer ‘was not made in good faith.’ See Section 768.69(7)(a) Fla Stat.   

Attorneys and parties who receive nominal offers of judgment sometimes are of the mistaken belief that they are not exposed to a fee award if they lose the case, because the offer is not made in good faith. That can be a dangerous mistake.  In Zendejas v. Redman, Case No. 15-81229-Civ, 2018 WL 4613327 (SD Fla.) two defendants, who obtained a no liability verdict at trial, had made respective offers of $500 and $5,000. The amount at issue was about $220,000 to $250,000. The court granted these defendants’ motions requesting an attorney fee award, brushing aside the plaintiff’s contention that the amount offered demonstrated the offers were not made in good faith.  The court explained that nominal offers are enforceable if the offeror had a reasonable basis to conclude that its exposure was also nominal.

The obvious take-away here is that nominal offers must be taken seriously in any evaluation of exposure.

Please feel free to contact us if you wish to discuss this topic or obtain a copy of this case.