Nusom

concurring:

I fully concur in Judge Rymer’s opinion for the court. I note only that I do not agree with Judge Goodwin’s concurrence and believe that all that remains for the district court to do is to determine the amount of attorney’s fees to be awarded plaintiffs. I very much doubt that the defendants can now have a second shot at avoiding those fees. I would think that the district court would be required to deny any motion they might seek to make.

concurring:

The plaintiffs in this case have appealed only the district court’s denial of their post-judgment motion for attorneys’ fees. Thus, the only question before us is whether the plaintiffs waived the right to seek fees by accepting the defendants’ offer of judgment pursuant to Rule 68. I agree with the majority that we cannot answer this question in the affirmative because, in this circuit, any waiver or limitation of attorneys’ fees under Rule 68 must be clear and unambiguous. See Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th Cir.1995), cert. denied, -U.S.-, 116 S.Ct. 2549 , 135 L.Ed.2d 1068 (1996).

The defendants have not appealed from the judgment entered by the district court pursuant to Rule 68. On remand, I assume the defendants could move for relief from judgment on the ground that there was no meeting of the minds to support the Rule 68 agreement. See Radecki v. Amoco Oil Co., 858 F.2d 397, 403 (8th Cir.1988). Although after today’s decision such a motion would likely fail because defendants will now be on notice that they must make explicit that their Rule 68 offers include fees, on the facts of this case, I would be inclined to grant such a motion.

We must decide whether a plaintiff waives a statutory entitlement to seek attorney fees under the Truth in Lending Act (TILA), 15 *832 U.S.C. § 1640 , and Oregon’s civil racketeering statute, Or.Rev.Stat. § 166.725(14) (ORI-CO) — both of which make attorney fees an item to be awarded separate from costs — by accepting an offer of judgment under Federal Rule of Civil Procedure 68 for “$15,000, together with costs accrued to the date of this offer.”

Steven and Marianne Nusom appeal the district court’s order denying their request for attorney fees. The court held that the Nusoms waived any claim they might have had by accepting a Rule 68 offer of judgment for $15,000 plus costs since attorney fees are not recoverable as costs under TILA and ORICO. We disagree, because a Rule 68 offer for judgment in a specific sum together with costs, which is silent as to attorney fees, is ambiguous when the underlying statute does not make attorney fees a part of “costs.” As a waiver or limitation on attorney fees must be clear and unambiguous, we must reverse.

I

The Nusoms filed suit on August 25, 1995 in Oregon Circuit Court against The CIT Group/Sales Financing, Inc., the lender on their…