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Settlement offers & shifting of attorneys’ fees

See this posting for an explanation of the following clause (updated as of 2010-04-15)

Settlement offer rejection:

(1) IF: In a covered dispute, a party does not timely accept a covered settlement offer, each as defined below, but then finally fails to obtain a more favorable result in the dispute than the offer; THEN: That party must pay or reimburse the offeror’s costs and expenses, including for example reasonable attorneys’ fees, incurred in the dispute by the offeror after making the offer.

(2) A covered dispute is any action or proceeding before any tribunal, where the action or proceeding arises out of or relates to (i) this Agreement or (ii) any transaction or relationship arising from this Agreement.

(3) A covered settlement offer is a written offer that (i) expressly states that it is subject to this section, and (ii) offers to settle a covered dispute.

(4) Matters of timing and other procedural issues concerning the offer, to the extent the parties do not agree otherwise, will be governed in the general manner provided for an offer of judgment under Rule 68 of the [U.S.] Federal Rules of Civil Procedure, any necessary change being made.

(5) Absent consent of the other party, each party shall preserve in strict confidence the existence and details of any offer made by the other party pursuant to this section and any subsequent communications between the parties regarding the offer.

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