On July 6, the Sixth Circuit addressed a question apparently
left open by the Supreme Court in its recent
Campbell-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-Ewald did 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
