Following the Supreme Court’s January decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) that a defendant cannot moot a plaintiff’s individual claim by simply offering to satisfy the plaintiff’s demand before a motion for class certification is filed, but must instead deliver that relief, the lower courts have struggled to identify when relief has been delivered versus merely “offered.” We previously covered the Ninth Circuit’s decision in Chen v. Allstate Insurance Co., 819 F.3d 1136 (9th Cir. 2016). Last month, the Sixth Circuit weighed in with its decision in Mey v. North American Bancard, LLC, –Fed.App.–, 2016 WL 3613395 (6th Cir. July 6, 2016), where the court acknowledged the possibility that a plaintiff’s individual claim can be mooted if a defendant physically delivers the plaintiff’s full demand.

The underlying dispute in Mey involved the Telephone Consumer Protection Act of 1991 (TCPA), which in certain instances prohibits unsolicited telephone calls made through automatic telephone dialing systems to cell phones. 47 U.S.C. § 227(b)(1)(A)(iii). Under the TCPA, individuals have a right to sue corporations that violate this law for damages of up to $1,500 per violation and injunctive relief. Id. § 227(b)(3)(B)-(C).

The defendant in Mey, North American Bancard (Bancard), allegedly used an automated system to make thousands of calls, including a Jan. 21, 2014, call to Diana Mey. Mey sued Bancard, asserting an individual claim and class claims on behalf of a proposed nationwide class of individuals who received such calls. Mey sought statutory damages and injunctive relief. Although Mey filed a motion for class certification with her complaint, the district court determined that the motion was premature because Bancard had not been served and the scheduling order had not been issued.

Bancard immediately made an offer of judgment pursuant to Fed. R. Civ. P. 68 of $1,500 for the Jan. 21, 2014, phone call, an additional $1,500, a promise to stipulate to an injunction and a promise to pay Mey’s attorneys’ fees, even though there is no fee-shifting mechanism under the TCPA. Mey rejected Bancard’s offer, and the district court entered judgment in Mey’s favor in accordance with the offer’s terms and dismissed the class claims. Mey appealed.

The Supreme Court decided Campbell-Ewald while her case was pending before the Sixth Circuit. In an attempt to avoid reversal in light of Campbell-Ewald, Bancard’s counsel mailed a cashier’s check for $4,500 to Mey’s attorney – $1,500 for each of the three calls it believed it made to Mey. Although Mey returned the check, Bancard argued that its delivery of the funds was sufficient to moot Mey’s individual claims under the Sixth Circuit’s precedent and the crack in the window left by the Supreme Court’s decision in Campbell-Ewald.

The court held that Bancard’s delivery of a certified check was not sufficient to moot the plaintiff’s claims. Rather than categorically hold that delivery of a certified check does not constitute a “tender” of funds, the court instead relied on the uncertainty in the record regarding the number of phone calls Bancard made to Mey, and held that this issue of fact precluded Bancard from verifying that the $4,500 represented Mey’s full demand. Moreover, the offer did not address Mey’s demand for injunctive relief. Accordingly, the Sixth Circuit vacated the district court’s ruling but “recognize[d] that it is possible that subsequent developments in this litigation may lead the district court to conclude that Mey’s individual claims are moot before Mey files or briefs another motion for class certification.”

At its core, the Sixth Circuit’s decision does not foreclose the possibility that a defendant can moot a plaintiff’s individual claim by actually providing the full uncontroverted demand to the plaintiff, but it does raise additional challenges to defendants attempting to moot a plaintiff’s claims.