Cooks et al v. The Hertz Corporation
Filing
197
ORDER: The Motion for Summary Judgment filed by The Hertz Corporation (Doc. 175 ) is GRANTED in part and DENIED in part. Counts I, II, IV, and V are DISMISSED with prejudice as to named Plaintiff Emma Bradley. Bradley's Motion to Strike (Doc. 178 ) is DENIED. If the parties have any objection to the Court ruling on the class certification motion as currently briefed, they should supplement their pleadings within 14 days of this Order. Signed by Chief Judge Nancy J. Rosenstengel on 8/22/2019. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EMMA BRADLEY, on behalf of herself
and all others similarly situated,
Plaintiff,
v.
Case No. 3:15-CV-652-NJR-RJD
THE HERTZ CORPORATION,
Defendant.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
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.
BACKGROUND
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
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¶¶ 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).
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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
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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).
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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 thought was deceiving or misrepresented the facts with regard to the Energy
Surcharge or the VLCR (Id. at p. 8).
Hertz’s Motion for Summary Judgment
On November 9, 2018, Hertz filed the motion for summary judgment that is
presently before the Court (Doc. 175). Bradley filed a timely response in opposition
(Doc. 176), and Hertz filed a reply (Doc. 177). Bradley then filed a motion to strike Hertz’s
reply brief asserting Hertz failed to provide legitimate exceptional circumstances for
filing the brief, as required by Local Rule 7.1(c) (Doc. 178). See SDIL-LR 7.1(c) (“Reply
briefs are not favored and should be filed only in exceptional circumstances. The party
filing the reply brief shall state the exceptional circumstances.”). Although Bradley may
not appreciate the substance of Hertz’s reply brief, the Court finds that it did provide
exceptional circumstances for filing the reply.
LEGAL STANDARD
Summary judgment is appropriate when there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
The moving party bears the burden of establishing that no material facts are in genuine
dispute; any doubt as to the existence of a genuine issue must be resolved against the
moving party. Adickes v. S.H. Kress &Co., 398 U.S. 144, 160 (1970); see also Lawrence v.
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Kenosha Cty., 391 F.3d 837, 841 (7th Cir. 2004). Once the moving party has set forth the
basis for summary judgment, the burden then shifts to the nonmoving party who must
go beyond mere allegations and offer specific facts showing that there is a genuine issue
of fact for trial. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 232-24 (1986).
A moving party is entitled to judgment as a matter of law where the non-moving
party “has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex, 477 U.S. at 323. “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial.” Id. No issue remains for trial “unless there is sufficient
evidence favoring the non-moving party for a jury to return a verdict for that party. If the
evidence is merely colorable, or is not sufficiently probative, summary judgment may be
granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
DISCUSSION
I.
The Missouri Merchandising Practices Act
The MMPA is a consumer protection statute created to supplement the common
law definition of fraud and “to preserve fundamental honesty, fair play and right
dealings in public transactions.” Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 414 (Mo.
banc 2014); Huch v. Charter Commc’ns, Inc., 290 S.W.3d 721, 724 (Mo. banc 2009). To
succeed on a cause of action under the MMPA, a plaintiff must prove that: (1) she
purchased or leased merchandise; (2) the merchandise was for personal, family, or
household purposes; (3) she suffered an ascertainable loss of money; and (4) the loss was
the result of an unlawful act, as defined by the statute. Haywood v. Massage Envy
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Franchising, LLC, 887 F.3d 329, 334 (7th Cir. 2018) (citing Ward v. West Cty. Motor Co., 403
S.W.3d 82, 84 (Mo. banc 2013)); MO. REV. STAT. §§ 407.020, 407.025) (emphasis added).
The MMPA defines “unlawful acts” as “any deception, fraud, false pretense, false
promise, misrepresentation, unfair practice or the concealment, suppression, or omission
of any material fact in connection with the sale or advertisement of any merchandise . . . .”
MO. REV. STAT. § 407.020. “The use of an unlawful practice is a violation of the MMPA
whether committed before, during or after the sale, so long as it was made ‘in connection
with’ the sale.” Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 414 (Mo. banc 2014)
(quotation omitted). “[I]n connection with the sale” means “a relationship between the
sale of merchandise and the alleged unlawful action.” Id.
Missouri’s Code of State Regulations, promulgated in conjunction with the
MMPA, define misrepresentations, omissions, and unfair practices. See Huch, 290 S.W.3d
at 724. The regulations define “misrepresentation” as “an assertion that is not in accord
with the facts” and further state that “[r]eliance, knowledge that the assertion is false or
misleading, intent to defraud, intent that the consumer rely upon the assertion, or any
other capable mental state such as recklessness or negligence, are not elements of
misrepresentation as used in section 407.020.1, RSMo.” MO. CODE REGS. tit. 15, § 60-9.070.
Omission of a material fact is “any failure by a person to disclose material facts
known to him/her, or upon reasonable inquiry would be known to him/her.” Id. § 609.110. Importantly, a “material fact” is any fact that a “reasonable consumer would likely
consider to be important in making a purchasing decision.” Id. at § 60-9.010 (emphasis
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added). As with misrepresentations, there is no requirement that a consumer rely on such
concealment, suppression, or omission to bring a claim under the MMPA. Id. at § 60-9.110.
Finally, “unfair practice” is defined as a practice that either:
(1) offends any
public policy as it has been established by the Constitution, statutes or common law of
Missouri, or by the Federal Trade Commission, or its interpretive decisions or (2) is
unethical, oppressive or unscrupulous and “presents a risk of, or causes, substantial
injury to consumers.” Id. § 60–8.020. The regulation provides that “proof of said
deception, fraud, or misrepresentation is not required to prove an unfair practices as used
in section 407.020.1.” Ward v. W. Cty. Motor Co., 403 S.W.3d 82, 84 (Mo. banc 2013), as
modified (May 28, 2013); see also Pearlstone v. Costco Wholesale Corp., No. 4:18CV630-RLW,
2019 WL 764708, at *5 (E.D. Mo. Feb. 21, 2019). The Missouri Supreme Court has
explained that the plain meaning of “unfair practice” is “unrestricted, all-encompassing
and exceedingly broad” and covers “every practice imaginable and every unfairness to
whatever degree.” Conway, 438 S.W.3d at 416.
II.
Misrepresentation Claims (Count I and IV)
Hertz argues it is entitled to summary judgment on Bradley’s misrepresentation
claims for two reasons. First, Bradley admitted that Hertz never misrepresented anything
to her. Second, Bradley cannot show that any alleged misrepresentations in the website
descriptions caused her an ascertainable loss when she never saw the descriptions she
claims are deceiving. And, even though she saw the allegedly deceiving fee names on her
receipt, Hertz argues that, under Haywood, the names must have “led her to book” the
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reservation. See Haywood, 887 F.3d at 335. Because Bradley did not see the fee names
until after getting her “receipt,” her claims fail. Even if she had seen the names, Hertz
argues, she does not explain how viewing the titles of the fees caused her any
ascertainable loss.
As a preliminary matter, the Court disagrees with Hertz’s argument that the fee
names must have “led her to book” the reservation with Hertz. The MMPA does not have
a reliance requirement—that is, a consumer need not prove that she relied on the unfair
act in deciding to purchase or lease the merchandise. Plubell v. Merck & Co., Inc., 289
S.W.3d 707, 714 (Mo. Ct. App. 2009); see also Haywood, 887 F.3d at 338 (Sykes, J., dissenting)
(noting that it is irrelevant under the MMPA whether the consumer relied on the
allegedly deceptive statement). Instead, the MMPA requires a causal connection only
between the unfair or deceptive merchandising practice and the plaintiff’s ascertainable
loss. Owen v. Gen. Motors Corp., 533 F.3d 913, 922 (8th Cir. 2008). In other words, the
unlawful practice must have caused Bradley a loss, but it need not have caused Bradley
to make a purchase.
Nevertheless, the Court finds that both of Bradley’s misrepresentation claims fail
as a matter of law, because she cannot prove that any misrepresentation caused her a loss.
Bradley testified that she never received or saw a document from Hertz that was
deceiving or misrepresented the facts with respect to either the Energy Surcharge or the
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VLCR (Doc. 175-3 at p. 8). 1 In fact, the only evidence in the record indicating Hertz ever
harmed Bradley is her testimony that the charges on her receipt were inaccurate because
the fees were higher than they should have been—not that the names or descriptions of
the fees were factually inaccurate or misleading (Doc. 174-1 at p. 47). Because Bradley
admitted that Hertz has never misrepresented anything to her, Counts I and IV must fail.
Even if Bradley had not made these admissions in her deposition, her claims, at
least with regard to the website descriptions, fail for another reason: Bradley could not
have suffered an ascertainable loss when she admits she has never—to this day—viewed
the alleged misrepresentations on Hertz’s website.
“Missouri courts apply the ‘benefit of the bargain’ rule in determining whether a
plaintiff has suffered an ascertainable loss under the MMPA.” Thompson v. Allergan USA,
Inc., 993 F. Supp. 2d 1007, 1012 (E.D. Mo. 2014). This method “compares the actual value
of the item to the value of the item if it had been as represented at the time of the
transaction.” Plubell, 289 S.W.3d at 715. In other words, to quote the post-Haywood case
attached by Bradley to her response, the “plaintiff must allege the product he purchased
was worth less than the product he thought he purchased had defendant’s representations been
In response to Hertz, Bradley argues that she was not asked about the fee names. The Court notes,
however, that the questioning was broad enough to encompass both the website descriptions and the fee
names on the receipt:
1
Q: “So you never received a document or saw a document from Hertz that was deceiving or
misrepresented the facts with respect to either the energy surcharge or the vehicle licensing
fee?”
A. “No.”
(Doc. 175-3 at p. 8).
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true.” Pirozzi v. Massage Envy Franchising, LLC, No. 17SL-CC00401, *3 n.1 (St. Louis Cir.
Ct. Nov. 13, 2018) (emphasis added). Such language necessarily implies that the
consumer had an idea in her mind of what the product should be worth based on the
representation made by the defendant, but that the product was actually worth less than
that amount because the representation was false or misleading. But if the consumer
never was exposed to the misrepresentation in the first place, how can she prove she
failed to receive the benefit of the bargain?
True, to this Court’s knowledge, there is no Missouri case definitively holding that
a named plaintiff must have been exposed to an alleged misrepresentation to succeed on
an MMPA claim. In most cases, however, knowledge of the misrepresentation is either
explicit or implied in the facts of the case. See, e.g., Murphy v. Stonewall Kitchen, LLC, 503
S.W.3d 308, 313 (Mo. Ct. App. 2016). Other courts, interpreting Missouri law, have
affirmatively imposed the requirement that a plaintiff must have seen or read the alleged
misrepresentation in order to prove he or she suffered an ascertainable loss. See McCall v.
Monro Muffler Brake, Inc., No. 4:10CV269 JAR, 2013 WL 1282306, at *5 (E.D. Mo. Mar. 27,
2013) (named plaintiffs who did not see, read, or know about AutoTire’s disclosures
regarding its Shop Supply Fee could not have been misled by those disclosures); see also
Haywood, 887 F.3d at 339 (J., Sykes, dissenting) (“The allegedly deceptive advertisements
appeared on Massage Envy’s website . . . [and] Holt viewed the website in April 2012
before booking her one-hour massage at a Missouri franchise. Nothing more is needed.”)
The Court agrees with Judge Sykes in her dissent that “nothing more is needed”
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than an allegation that the plaintiff viewed the defendant’s website, which contained the
alleged misrepresentations—at the motion to dismiss stage. See Haywood, 887 F.3d at 339.
At the summary judgment stage, however, Bradley has the burden of proof of
demonstrating the essential elements of her case. Celotex, 477 U.S. at 323. Here, she has
failed to do so. Because Bradley never read the website descriptions, she cannot prove
any causal connection between the alleged misrepresentations and any loss she suffered.
Accordingly, summary judgment is granted to Hertz on Counts I and IV.
III.
Omission Claims (Counts II and V)
Hertz next argues that it is entitled to summary judgment on Bradley’s claims that
Hertz omitted material facts related to the fees. With regard to the Energy Surcharge,
Bradley alleges that Hertz failed to inform consumers that it: was imposing the Energy
Surcharge even though energy costs were declining; based the Energy Surcharge on
projected 2008 costs without reviewing them after the fact and discovering the projections
failed to come to fruition; included non-energy related costs of replacement tires and
water utilities; kept the Energy Surcharge in place even after becoming aware of
economic projections indicating 2009 fuel costs were expected to decline drastically;
based its 45 percent increase in the surcharge in 2013 on a supposed comparison of 2013
costs to 2007 costs, but it included items in its 2013 calculation that were not part of the
2007 calculation; based that 45 percent increase in 2013 on a mathematical error; kept the
flawed 2013 surcharge in place to this day without attempting to determine whether its
energy costs had stayed the same; is not using the Energy Surcharge as an offset for the
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exact amount of specific energy expenses that had increased beyond the normal level;
and had no legitimate basis for separating energy costs from other costs or for requiring
customers to reimburse Hertz for them separately (Doc. 148 at pp. 25-26).
With regard to the VLCR, Bradley claims Hertz failed to inform consumers that:
only 12 percent of the VLCR actually recovers licensing costs; even considering all costs
the VLCR does recover, it generally results in an overcharge; because the VLCR is
charged as a percentage of the daily rate, it does not provide a fair allocation of Hertz’s
costs among its customers; the fee was different for different cars even though the
licensing expense was the same; the way the fee was calculated reflected the limitations
of Hertz’s computer system; and the fee is not based on the percentage of licensing
expense attributable to the consumer’s rental (Id. at p. 32).
Hertz asserts that these alleged omissions are just another way to say that Hertz
misrepresented the truth. Furthermore, Hertz asserts, Bradley has failed to show that the
omissions were material when there is no evidence she would have found it important to
know how Hertz calculates its fees when deciding whether to rent a vehicle from Hertz.
Finally, Hertz contends that Bradley has not shown that any alleged omissions caused
her a loss when she never saw the statements with the alleged omissions.
In response, Bradley argues it is irrelevant whether there is evidence that she
would have found it important to know how Hertz calculates its fees when deciding
whether to rent a car from the company. Rather, the Court should consider whether there
is any evidence that a reasonable consumer would find a fact important to consider in
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deciding whether to rent from Hertz. Here, that evidence exists in the form of her expert’s
testimony that a consumer would be more willing to choose Hertz than another rental
company because of Hertz’s terms and explanations.
Despite Bradley’s arguments to the contrary, the Court finds that her omission
claims, which only relate to the website descriptions, fail as a matter of law because she
never read the website descriptions in the first place. Bradley is correct that the Court
should use a “reasonable consumer” standard in determining whether an omitted fact
would be important to the purchasing decision, but “while the reasonable consumer
standard is relevant to whether a practice is unlawful under the MMPA, it is not relevant
to whether there was an ascertainable loss to the plaintiff.” Bratton v. Hershey Co., No.
2:16-CV-4322-C-NKL, 2018 WL 934899, at *3 (W.D. Mo. Feb. 16, 2018).
Here, Bradley never viewed the website descriptions that contained the alleged
omissions, so she cannot prove that, but for the omissions, she would not have sustained
a loss. See Owen v. Gen. Motors Corp., 533 F.3d 913, 922 (8th Cir. 2008) (“The Owens assert
that the district court erred in applying the proximate cause standard of tort law to their
MMPA claim, but there is no denying that causation is a necessary element of an MMPA
claim. . . . [T]he plain language of the MMPA demands a causal connection between the
ascertainable loss and the unfair or deceptive merchandising practice.”). Just as with her
misrepresentation claims, Bradley cannot prove she suffered an ascertainable loss as a
result of Hertz’s omissions. Accordingly, Hertz is entitled to summary judgment on
Counts II and V.
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VI.
Unfair Practices Claims (Counts III and VI)
Lastly, Hertz argues that Bradley’s unfair practices claims in Counts III and VI fail
as a matter of law because she is essentially relabeling her misrepresentation and
omission claims as unfair practices. Because she cannot show causation with regard to
those claims, Hertz argues, her unfair practices claims should also fail.
Bradley, on the other hand, argues that her unfair practices claims relate to the
actual miscalculation of the fees, not Hertz’s representations regarding what the fees pay
for. For example, Bradley alleges that Hertz: based its calculation of the Energy Surcharge
on projections of costs that did not come to fruition; ignored projections that energy costs
would plummet; included non-energy costs in its calculation; kept the same surcharge in
place for five years without reviewing the true costs; made a mathematical miscalculation
in 2013, leading to a 45 percent increase in the surcharge; and has not attempted to
determine, since 2013, whether its energy costs support imposing the current Energy
Surcharge (Doc. 148 at pp 43-44).
With regard to the VLCR, Bradley claims Hertz engaged in unfair practices in that:
88 percent of the costs Hertz included in the VLCR were not costs it incurred for licensing
and registering its vehicles; Hertz persistently overcharges for those costs and does not
reimburse customers for the overcharges; and Hertz unfairly and unethically sets the
VLCR as a percentage of its daily rates rather than a flat fee, resulting in an inequitable
allocation of costs among consumers (Doc. 148 at p. 46).
Although Hertz couches Bradley’s unfair practices claims as mere restatements of
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her misrepresentation claims, the Court is not convinced. As pleaded, the alleged unfair
practices are independent acts that a jury could find to be unlawful under the MMPA.
The unfair practices are not relying on the “same baseline allegation” that Hertz misled
consumers by hiding information, as was the situation in Haywood. 887 F.3d at 333. 2
Furthermore, because Bradley’s unfair practices claims are independent of her
misrepresentation and omission claims, her failure to review the fee descriptions on
Hertz’s website is inconsequential here.
Of course, there is still a causation requirement. Bradley must be able to prove that
Hertz’s unfair practices caused her to suffer an ascertainable loss. In the Third Amended
Complaint, Bradley claims that, as a result of Hertz’s acts as described above, she and the
class she seeks to represent suffered an ascertainable loss when they paid more than they
should have for both the Energy Surcharge and the VLCR (See Doc. 148). Hertz has
neither argued the merits of this allegation nor presented any evidence demonstrating
that this claim ultimately would fail as a matter of law. Accordingly, the Court declines
to grant summary judgment on Bradley’s unfair practices claims in Counts III and VI.
CONCLUSION
Even if Bradley’s unfair practices claim was based on Hertz’s misrepresentations, there is nothing in the
MMPA that prohibits a plaintiff from bringing multiple legal theories based on the same set of facts. Hertz
claims that the MMPA’s unfair practices prong “contemplates something different than a deceptive
practice, i.e., a claim based on allegations of something other than ‘deception, fraud, or misrepresentation,”
but the state regulation cited is not so limited. Instead, it says an unfair practice is (a) any practice that
offends public policy or is unethical, oppressive or unscrupulous and (b) presents a risk of, or causes,
substantial injury to consumers. MO. CODE REGS. tit. 15, § 60-8.050. Hertz’s attempt to limit the realm of
what constitutes an unfair practice is unavailing, especially considering that the Missouri Supreme Court
has called the unfair practice definition “exceedingly broad,” covering “every practice imaginable and
every unfairness to whatever degree.” Conway, 438 S.W.3d at 416.
2
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For these reasons, the Court GRANTS in part and DENIES in part the Motion for
Summary Judgment filed by Defendant The Hertz Corporation (Doc. 175). Counts I, II,
IV, and V are DISMISSED with prejudice as to named Plaintiff Emma Bradley. Bradley’s
Motion to Strike (Doc. 178) is DENIED.
If the parties have any objection to the Court ruling on Bradley’s class certification
motion as currently briefed, they should supplement their pleadings within 14 days of
this Order.
IT IS SO ORDERED.
DATED: August 22, 2019
_____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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