Fees Recoverable Following Rule 68 Offer

Am I correct that the "costs" recoverable in federal court if judgment is less than a Rule 68 offer do not include attorney fees?

Answer: That's correct, unless the cause of action carries an attorney fee taxable as costs. Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985): Attorney fee follows judgment for less than verdict where substantive law permits attorney fee. That issue will be decided in federal court under federal law. Scottsdale Ins. Co v. Tolliver, 636 F.3d 1273 (10th Cir. 2011): 12 O.S. 1101.1 was substantive so court would apply 1101.1 instead of FRCP 68 under Erie.

Be aware of a difference in a federal court Rule 68 offer and a state court offer to confess. In federal court, if the verdict is for the defendant, it is not a verdict for less than the offer and no award is authorized under Rule 68. See: Delta Airlines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 1150, 67 L.Ed.2d 287 (1981).