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Bradley v. The Hertz Corp.

United States District Court, S.D. Illinois

August 22, 2019

EMMA BRADLEY, on behalf of herself and all others similarly situated, Plaintiff,



         Pending before the Court is the Motion for Summary Judgment filed by Defendant The Hertz Corporation (“Hertz”) (Doc. 175). Hertz argues it is entitled to summary judgment on Plaintiff Emma Bradley's claims under the Missouri Merchandising Practices Act (“MMPA”) for a number of reasons, foremost, because she never read or even saw Hertz's alleged misrepresentations. And to the extent Bradley did see any allegedly deceptive language or encountered any alleged unfair practice, Hertz asserts, she has not demonstrated how she suffered an ascertainable loss. For the reasons set forth below, the Court grants Hertz's motion in part and denies it in part.


         Third Amended Complaint

         Plaintiff Emma Bradley, a Missouri citizen, filed this putative class action against Hertz alleging that she and a class of consumers who rented vehicles from Hertz were “compelled by Hertz to pay improper, deceptive, unfair and unethical fees.” (Doc. 148 at ¶¶ 1-2). In her Third Amended Complaint, Bradley specifically takes issue with two fees imposed by Hertz in Missouri: an Energy Surcharge and a Vehicle Licensing Cost Recovery (“VLCR”) fee (Id. at ¶ 3). Bradley alleges that Hertz deceptively represents that it imposes these fees to reimburse it for certain costs, including increasing energy costs and vehicle registration and licensing fees (Id. at ¶¶5-6). Instead, Bradley claims, the fees are unrelated to those costs, greatly exceed the costs, and are designed to provide Hertz with increased profit, not cost reimbursement (Id. at ¶ 4). For example, Hertz instituted the Energy Surcharge in 2008-at a time when energy costs were decreasing-and a substantial portion of the fee is used for non-energy items such as tires (Id. at ¶ 5).

         According to the Third Amended Complaint, Hertz informs customers of its fees in the “Rate Details” of an online reservation, but the charges do not explain what the fees cover until a consumer clicks on a circle with a question mark next to the fee name (Id. at ¶¶ 21-24). At that point, a pop-up screen appears with various definitions of terms. Prior to this lawsuit being filed, the descriptions for the Energy Surcharge and VLCR were as follows:

Energy Surcharge - The costs of energy needed to support our business operations have escalated considerably. To offset the increasing costs of utilities, bus fuel, oil and grease, etc., Hertz is separately imposing an Energy Surcharge.
Property Tax, Title/License Reimbursement / Vehicle Licensing Cost Recovery / Vehicle Licensing Fee / Recovery Surcharge - This fee is for Hertz' recovery of the proportionate amount of vehicle registration, licensing and related fees applicable to a rental.

(Id. at ¶¶ 26, 33).

         With regard to the Energy Surcharge, Bradley claims that both the name and website description of the surcharge were deceptive because the fee was not used to reimburse Hertz for increasing costs of energy (Id. at ¶ 35). Instead, it provided profit for Hertz (Id.). Bradley also asserts that Hertz's method of calculating the fee was unfair and unethical (Id. at ¶ 67). Bradley claims Hertz used projections for energy expenses that never came to fruition in 2008 and, despite energy prices falling in 2009, Hertz left the Energy Surcharge at the same rate for another four years (Id. at ¶¶ 68-71) . Bradley further asserts that in 2013, Hertz increased its Energy Surcharge based on a mathematical miscalculation; that surcharge amount remains in effect today (Id. at ¶¶ 77-84).

         Bradley also claims the name and website description of Hertz's VLCR misrepresented the true nature of the fee, as the majority of the costs included in the fee are not licensing costs but instead consist of county property taxes (Id. at ¶ 91). Even if those payments were legitimately part of the fee, however, Bradley alleges that Hertz still overcharged its customers (Id. at ¶ 93). And by basing the fee as a percentage of the daily rate rather than a flat fee, it is the class of the car, the location of the rental, and other factors that influence the VLCR a customer pays rather than Hertz's actual cost for licensing, registration, and titling of the car (Id. at ¶ 97). Like the Energy Surcharge, Bradley also asserts Hertz's method of calculating the VLCR was unfair and unethical (Id. at ¶¶ 102-06).

         The Third Amended Complaint alleges six counts under the MMPA. See Mo. Rev. Stat. § 407.020, et seq. In Counts I and VI, Bradley alleges Hertz violated the MMPA by affirmatively misrepresenting its Energy Surcharge and VLCR-through both their names and their website descriptions-as cost recovery when they instead represented profit. Counts II and V allege Hertz violated the MMPA by omitting certain facts related to the Energy Surcharge and VLCR. Finally, Counts III and VI allege Hertz engaged in unfair practices under the MMPA by improperly calculating and persistently overcharging customers with regard to its Energy Surcharge and VLCR.

         Bradley seeks to represent a class consisting of:

All members of the Hertz Gold Plus Rewards Program who, during the class period beginning on May 1, 2010, rented a motor vehicle from Hertz in the State of Missouri for personal, family or household purposes and paid a so-called “Energy Surcharge” and/or Licensing Fee in connection with such rental.

(Id. at ¶ 141).

         Undisputed Facts

         The material facts related to Bradley's experience as a Hertz customer are largely undisputed. Bradley used Hertz's website to rent vehicles from Hertz at its St. Louis Lambert International Airport location between ten and twenty times, beginning in 2010 (Doc. 175-3 at p. 4). The first time Bradley rented a car from Hertz, she looked at the “receipt” and noticed that it had extra charges on it-the Energy Surcharge and the VLCR fee (Id. at pp. 4-5; Doc. 177-2 at p. 5). Bradley asked the employee at the Hertz counter why her receipt showed the extra charges, but she does not remember the employee's response (Doc. 177-2 at p. 5).

         Bradley testified that she does not recall seeing either of the fees or their descriptions when she reserved the vehicles online (Doc. 175-3 at p. 6). In fact, she has never read or paid any attention to the description for either fee on the Hertz website (Id. at pp. 6-7). Bradley further testified that she never received a document from Hertz that she ...

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