To be sure, the difference between the kinds of relief obtained
and offered is like comparing apples and oranges, and so there is
some difficulty in evaluating whether this aspect of the
settlement agreement was more or less favorable. Therefore, the
Court must determine who bears the burden of proof — i.e., is it
the District's burden to show that the agreement was less
favorable or Mr. Hawkins's burden to show that the agreement was
more favorable? In the context of Rule 68, courts have held that
it is the burden on the defendant to show that the settlement
offer was more favorable than the judgment. See Reiter v. MTA
N.Y. City Transit Auth., 457 F.3d 224, 231 (2d Cir. 2005) (stating
that, "[i]n determining the value of the relief, the defendant
bears the burden of showing that the Rule 68 offer was more
favorable than the judgment"); Milton v. Rosicki, Rosicki &
Assocs., P.C., No. 02 CV 3052 (NG), 2007 U.S. Dist. LEXIS 56872,
at *8-9 (E.D.N.Y. Aug. 3, 2007) (noting the same); Jankey v.
Beach Hut, CV 05-3856 SVW (JTLx), 2006 U.S. Dist. LEXIS 96365, at
*23 (C.D. Cal. Dec. 19, 2006) (noting the same). As explained in
one legal treatise, it is often difficult to compare nonmonetary
forms of relief but,
[a]s a guiding principle ..., it would be best to
view the defendant as having the burden of
demonstrating that the offer was superior. Although it
is true that the rule itself makes the cost-shifting
consequences apply unless the judgment is more
favorable, suggesting that the burden to show that the
judgment is more favorable should be on the plaintiff,
that wording assumes the comparison is not difficult to
make. Rule 68 is actually a tool for defendant to use,
and defendant alone determines the provisions of the
offer. Since defendant has drafted those provisions,
the courts generally interpret the offer against
defendant. Consistent with that, the burden should be
on defendant to demonstrate that those provisions are
in fact more favorable than what plaintiff obtained by
judgment.
Wright, et al., 12 Fed. Prac. & Proc. Civ. 2d § 3006.1. The
settlement offer provision in the IDEA is modeled on Rule 68, and
therefore the Court concludes that the burden is on the District,
as the defendant in the case, to show that the settlement
agreement was less favorable. In light of the discussion above,
the District has failed to meet that burden.[fn8]
fn 8: That the burden is appropriately placed on the District is also
supported by the legislative history for the Handicapped
Children's Protection Act, the IDEA's predecessor. See 132 Cong.
Rec. S. 9277 (1986) (co-sponsor Sen. Simon) (stating that a
"court should not ... enter into difficult attempts to make
complex or arbitrary comparisons of different forms of relief"
and that, "[f]or a court to deny an award of fees on the basis of
a rejection of an offer, it must be manifestly clear that the
relief offered was as favorable as that obtained") (emphasis
added).
