In Mey v. North American Bancard, 2016 WL 3613395, at *3-4 (C.A.6 (Mich.), 2016), the Court of Appeals for the Sixth Circuit held that payment of actual cash did not moot a TCPA class action under Campbell-Ewald.

In an effort to tee up that question, NAB responded to Campbell-Ewald by mailing Mey’s attorney a cashier’s check for $4,500, apparently for three calls that NAB now believes it made to Mey. Though Mey promptly returned the check, NAB argues that because the Campbell-Ewald Court “drew a distinction between ‘offering’ funds,” which does not moot a plaintiff’s claim, and “tendering” funds, which does, NAB’s act of sending Mey a cashier’s check is a tender that moots Mey’s claims.Even if we assume that an unaccepted cashier’s check could moot a claim, NAB has not shown that its tender satisfies Mey’s demand for relief, which the tender must do if it is to moot Mey’s individual claims. See San Pablo & Tulare R.R. Co., 149 U.S. at 313–14. NAB now admits that it made three calls to Mey, not just the one call that NAB mentioned in its Rule 68 offer of judgment. But the district court never made any finding as to just how many calls NAB made, and NAB’s recent admission to making three suggests that there may be more that Mey and NAB are not aware of. The upshot is that at this point, whether $4,500 provides Mey with all the relief she is entitled to remains unclear. That lack of clarity means that NAB cannot show that Mey has received all of the money damages she has claimed. Cf. Keim v. ADF Midatl., LLC, 586 F. App’x 573, 574 (11th Cir. 2014) (holding that because the “record does not show how many messages the named plaintiff received,” an offer of judgment of $1,500 per message could not moot a plaintiff’s claim since “there was still work to be done to get the case to the finish line”). Equally problematic is that a tender of $4,500 does nothing to satisfy Mey’s request for injunctive relief. *4 NAB protests that the district court entered judgment in favor of Mey on the terms “set forth in the Rule 68 Offer of Judgment submitted by” NAB. In that Rule 68 offer, NAB promised to pay Mey $1,500 for every violation of the TCPA, and also agreed to stipulate to an injunction. NAB submits that together with the judgment, the cashier’s check has satisfied all of Mey’s demands; Mey has compensation for the three TCPA violations that the parties are aware of, and if any more come to light, Mey can obtain $1,500 for each by enforcing the district court’s judgment against NAB. Presumably, the same would be true of the as-yet undefined injunction.But NAB’s argument leans too heavily on a judgment that should never have been entered. Because Campbell-Ewald makes clear that the district court’s judgment must be vacated, NAB cannot rely on it to show that Mey no longer has a stake in the litigation. Cf. Al-Dabagh v. Case W. Reserve Univ., 777 F.3d 355, 359 (6th Cir. 2015) (“[A]n appeal remains alive if the effects … of compliance [with a lower-court order] can be undone.”). On the record before us, we cannot conclude that NAB’s tender provides Mey everything that she asked for as an individual plaintiff, which means that Mey’s individual claims are not moot and can proceed in the district court.