§ 14.06 OFFER TO COMPROMISE

• Jurisdiction: United States

§ 14.06. OFFER TO COMPROMISE

Rule 408 covers only statements made in an attempt to compromise. But, as the Second Circuit has noted, "It is often difficult to determine whether an offer is made 'in compromising or attempting to compromise a claim.' "²⁵ The timing of both the offer and the existence of a disputed claim are relevant to the determination. Courts have drawn distinctions "between letters containing clear settlement offers and letters containing near-term demands for immediate compliance alongside promises of a possible lawsuit."²⁶ Similarly, an offer of severance pay conditioned on waiver of an age-discrimination claim made contemporaneous with discharge was not protected by Rule 408.²⁷ In contrast, where a party is represented by counsel, threatens litigation, and has initiated the first administrative steps in that litigation, an offer made between attorneys will be presumed to be an offer within the scope of Rule 408.²⁸

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Notes:

^[25] Pierce, 955 F.2d at 827. See also Deere & Co. v. International Harvester Co., 710 F.2d 1551, 1557 (Fed. Cir. 1983) ("Rule 408, on its face, is limited to actual disputes over existing claims and, accordingly, cannot be applicable to an offer, albeit one ultimately rejected, to license an, as yet, uncontested patent."); Brazil, Protecting the Confidentiality of Settlement Negotiations, 39 Hastings L.J. 955, 960-66 (1988).

^[26] Rural Water Dist. No. 4, Douglas County v. City of Eudora, 659 F.3d 969, 987 (10th Cir. 2011).

^[27] Cassino v. Reichhold Chemicals, 817 F.2d 1338, 1342-43 (9th Cir. 1987). See also Big O Tire Dealers v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1372-73 (10th Cir. 1977) (correspondence between parties prior to the filing of an...