Mey v. North American Bancard, LLC
This case was brought as a class action under the Telephone Consumer Protection Act. The plaintiff, Diana Mey, filed a motion for class certification with her complaint, but the court denied the motion pending a scheduling order. The defendant then made Ms. Mey an offer of judgment for all the damages she could have received on her individual claim. Ms. Mey rejected the offer, explaining that the offer did not offer full relief to the class. The defendant then moved to dismiss, arguing that although Ms. Mey rejected the offer, it rendered her individual claim and the entire case moot. The district court granted the motion, entered judgment on Ms. Mey’s individual claim in accordance with the offer’s terms, and dismissed the class claims.
We represented Ms. Mey on appeal before the Sixth Circuit, where we argued that an unaccepted offer does not moot a claim or otherwise justify entering judgment on it, and that even if an unaccepted offer could moot an individual claim, the case would not be subject to dismissal because the class claims would not be moot.
After the appeal was fully briefed, the Supreme Court held in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), that an unaccepted offer of judgment cannot moot a case. Campbell-Ewald thus made clear that the district court had erred in holding that the Rule 68 offer mooted Ms. Mey’s claims. Campbell-Ewald also made clear that a court should not enter judgment in a named plaintiff’s favor without providing her a chance to show that a class should be certified, instructing that “a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” Id.
The defendant responded to Campbell-Ewald’s resolution of the issues in the appeal by sending Ms. Mey a cashier’s check for $4,500 and asking the Court to supplement the record with evidence of its delivery of the check and to allow supplemental briefing. Ms. Mey returned the check to the defendant, and the court allowed both parties to supplement the record and ordered both parties to file supplemental briefs. In Ms. Mey’s supplemental brief, we argued that the check did not moot the case for five reasons: first, because the check offered monetary relief only and did not even arguably moot Ms. Mey’s claim for injunctive relief; second, because the district court entered judgment in Ms. Mey’s favor, and a payment made in compliance with a judgment does not moot an appeal of that judgment; third, because Ms. Mey rejected the check, and under both the reasoning of Campbell-Ewald and the common law of tender, a rejected check does not extinguish a debt or deprive a court of subject-matter jurisdiction; fourth, because the check did not include complete monetary relief; and fifth, because regardless of the check’s effect on Ms. Mey’s individual claim, it did not moot the class claims.
On July 6, 2016, the Sixth Circuit held that Ms. Mey’s individual claim is not moot. The court explained that, even assuming that an unaccepted check could moot a claim, the defendant had not shown that its check satisfied Ms. Mey’s full claim for relief, because it had not shown that the check included all monetary damages Ms. Mey sought and because the check did nothing to satisfy Ms. Mey’s claim for injunctive relief. The court vacated the district court’s entry of judgment on the individual claims, vacated the dismissal of the class claims, and remanded.