By: Daily Record Staff//April 23, 2013
By: Daily Record Staff//April 23, 2013//
U.S. District Court, WDNY
Offer of Judgment
Mutual Assent — Attorney’s Fees
Henchen v. Renovo Services LLC, et al.
Background: The plaintiff commenced an action against the defendants under the Fair Debt Collection Practices Act. The plaintiff moved for an award of attorney’s fees as a successful party under the FDCPA. The plaintiff argued that because he accepted an offer of judgment from the defendants that was silent as to attorney’s fees, he was entitled to an award in addition to the amount specified in the judgment.
Ruling: The District Court denied the motion and struck the plaintiff’s acceptance. The record established that during negotiations an offer was made that expressly included attorney’s fees. However, the plaintiff responded by accepting the offer of settlement, but stating that he would seek attorney’s fees. Because the defendant’s immediate response was to seek an amended offer of judgment, there was no mutual assent.
Kenneth R. Hiller and Seth Andrews of the Law Offices of Kenneth Hiller for the plaintiff; James J. Nash and Erin Elizabeth Cole of Cohen & Lombardo for the defendant Renovo Services; John C. Palermo of Gallo & Iacovangelo for the remaining defendants