Under the Federal Rules of Civil Procedure, Rule 68 allows a defendant to make a formal settlement offer to the plaintiff, including accrued costs. If the plaintiff accepts within 14 days, judgment is entered. If not, the offer is withdrawn. But if the plaintiff ultimately recovers less than what was offered, they may have to cover the defendant’s post-offer costs.

Back in February, I wrote about a significant development in a TCPA class action our firm is defending: a federal judge granted our request for bifurcated discovery. In my view, nothing shifts the dynamics and leverage early in a putative TCPA class action more than a court granting bifurcation.

I’ll keep this brief: If you're a defendant in a TCPA class action and the judge requires a joint proposed scheduling order, your counsel should always request bifurcated (or phased) discovery.