In the 1984 case of Marek et al. v. Chesny, the US Supreme Court ruled on a dispute regarding attorney's fees in a civil rights lawsuit under Section 1988 of Title 42 of the United States Code. The plaintiff, Chesny, had rejected a settlement offer from defendants (Marek and others), proceeded to trial and was awarded less than what was offered in settlement. When he sought to recover his full post-offer costs including attorney’s fees as part of his judgment, it was contested by defendants who argued that Federal Rule for Civil Procedure 68 limited their liability for those costs since they had made an unsuccessful but higher pre-trial offer to settle the matter out-of-court. The Supreme Court sided with defendants holding that if a plaintiff rejects an offer more favorable than what is eventually obtained at trial then under Rule 68 they cannot recover any litigation costs incurred after making such rejection - this includes attorney's fees when underlying statute defines 'costs' to include these.

In the dissenting opinion for Marek v. Chesny, Justice Brennan argued that the majority's interpretation of Rule 68 was inconsistent with its purpose and history. He believed that Congress intended to encourage settlements by making defendants pay more if they refused a reasonable offer, not less as the majority suggested. Furthermore, he pointed out that under this ruling, plaintiffs would be discouraged from pursuing civil rights claims due to fear of high litigation costs if their damages award is slightly lower than an early settlement offer. This could potentially undermine enforcement of federal civil rights laws which often depend on private citizens bringing lawsuits against violators. Additionally, Justice Brennan criticized the majority’s decision because it failed to consider whether or not attorney fees were included in a defendant's initial settlement offer before reducing them from final judgment amounts.