On July 6, the Sixth Circuit addressed a question apparently left open by the Supreme Court in its recentCampbell-Ewald case. In Campbell-Ewald, the Supreme Court ruled that an unaccepted Rule 68 offer of judgment did not moot class claims when no motion for class certification is pending. A plaintiff who rejects a rule 68 offer of tender extinguishes the offer. The court did not address, however, whether an actual tender of funds to a class plaintiff extinguished the claims and mooted the class.
In May, a Telephone Consumer Protection Act (TCPA) case, unlike the defendant in Campbell-Ewald, the defendant mailed the plaintiff’s attorney a cashier’s check for $4,500, the amount the plaintiff would have recovered for the three improper unsolicited sales calls made to her cell phone. It argued that Campbell-Ewalddid not apply because “tender” is different from an “offer” of tender. The Sixth Circuit rejected this argument, at least under the facts before it. At bottom, the parties didn’t know whether the defendant only made three calls to the plaintiff. This lack of clarity meant that the defendant couldn’t show that the plaintiff actually received all the money damages to which she claimed entitlement. Moreover, although the defendant argued that if additional improper calls were discovered, the plaintiff could recover more money by seeking to enforce the judgment, the court ruled that under Campbell-Ewald, the judgment never should have been entered. The court did not squarely hold that a tender is the same as a bare offer under the Supreme Court’s Campbell-Ewald analysis. Nonetheless, that seems to be the practical import of its decision.