United States District Court, S.D. Illinois
EMMA BRADLEY, on behalf of herself and all others similarly situated, Plaintiff,
THE HERTZ CORPORATION, Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
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.
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).
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
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).
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
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).
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.
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).
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).
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