See Forman v. Korean Air Lines Co., Ltd., 84 F.3d 446, 451 (D.C. Cir.), cert. denied, 519 U.S. 1028, 117 S.Ct. 582 (1996) ("[W]e think the Seventh Circuit is correct — that the prime rate is not merely as appropriate as the Treasury Bill rate, but more appropriate. . . .") (emphasis original; citing In re Oil Spill by the Amoco Cadiz Off the Coast of France, 954 F.2d 1279, 1332 (7th Cir. 1992)). Second, we agree with the Seventh Circuit's decision in Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999), that an unallocated offer of judgment to multiple plaintiffs is not effective under Rule 68. The Seventh Circuit rested its decision on two grounds: (1) "A judgment less favorable than the offer requires that a plaintiff pay the defendant's usually substantial post-offer costs and [t]here must therefore be a clear baseline from which plaintiffs may evaluate the merits of their case relative to the value of the offer" and (2) "courts also need easily comparable sums." 164 F.3d at 1076.

See Marek v. Chesny, 473 U.S. 1, 10, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). Rule 68 also requires the plaintiff to pay any costs the defendant incurs after making the offer if the plaintiff's judgment is less favorable than the offer. See Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999). We review the district court's underlying factual findings for clear error, but to the extent a party's entitlement to costs rests on an interpretation of Rule 68, we review the district court's legal conclusions de novo.

Several courts have held an offer of judgment which fails to apportion the offer among various plaintiffs creates an unacceptable ambiguity in the offer. See, e.g., Thomas v. Nat'l Football League Players Ass'n, 273 F.3d 1124, 1130 (2d Cir. 2001) (lump sum offer of judgment to multiple plaintiffs did not trigger Rule 68's cost-shifting provision); Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999) (unapportioned offer of judgment to multiple plaintiffs is not effective under Rule 68). These holdings are based on two considerations.

a) DEFENDANTS' UNAPPORTIONED OFFER OF JUDGMENT IS VALIDCiting Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir. 1999), Plaintiffs contend that Defendants' offer of judgment was invalid for purposes of Rule 68 because it gave them no meaningful basis for assessing the merits of the offer relative to their own individual claims. In Gavoni, the Seventh Circuit Court of Appeals affirmed the denial of costs for a defendant who had made a Rule 68 offer that was unapportioned among multiple plaintiffs.

The defendant bears the burden of showing that the offer was more favorable than the judgment. See Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir. 1999). Rule 68 has been described as a "mandatory rule to be narrowly applied."

The burden is on Fleetwood to show that its offer was more favorable. Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075-76 (7th Cir. 1999). The burden is on the offeror to make a clear and precise offer that will be readily comparable to any judgment that may be obtained.

Defendant argues that the Court, in the exercise of its discretion, may award costs to plaintiff in full, award reduced costs to account for the mixed result, or decline to award costs at all. SeeGavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999). Defendant submits that in this case, based on the mixed result, the Court should either decline to award costs to either side, see Testa, 89 F.3d at 447, reduce plaintiff's award to one third of the amount claimed to account for her prevailing on only one of her three claims, or award offsetting costs, effectively reducing plaintiffs' award of costs by the amount of costs defendant has claimed.

In a case with mixed results, the district court has the discretion to determine whether a party meets that standard. Gavoni v. Dobbs House, Inc. , 164 F.3d 1071, 1075 (7th Cir. 1999) ; Testa , 89 F.3d at 447 ; Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co. , 924 F.2d 633, 641 (7th Cir. 1991) (noting that we apply a deferential standard of review to the district court's determination of which party prevailed under Rule 54(d) and will not overturn that decision absent an abuse of discretion). The plaintiffs contend that we should review the district court's decision de novo because the court erred on a question of law, namely, the definition of the term "prevailing party."

The imposition of costs under Rule 68(d) is mandatory. See, e.g., Hescott v. City of Saginaw, 757 F.3d 518, 527 (6th Cir. 2014) (citation omitted); King v. Rivas, 555 F.3d 14, 20 (1st Cir. 2009); Berkla v. Corel Corp., 302 F.3d 909, 925 (9th Cir. 2002); Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1076 (7th Cir. 1999). The district court has no discretion to reduce costs on equitable grounds.

Courts generally agree that an Offer of Judgment should provide a plaintiff a “clear baseline from which plaintiffs may evaluate the merits of their case relative to the value of the offer.” Sharpe, 319 F.3d at 275 (quoting Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir.1999) ); Roska v. Sneddon, 366 Fed.Appx. 930, 940 (10th Cir.2010) (same). Courts also generally agree that the offer should be sufficiently clear to permit a court to assess whether the actual judgment received by an individual plaintiff is less than that plaintiff's share of the offer. Roska, 366 Fed.Appx. at 940–41.