Hertz 2008 Annual Report Download - page 190

HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
unconscionable penalty or liquidated damages in violation of Article 2A of the Oklahoma
Uniform Commercial Code. The plaintiff sought an unspecified amount of compensatory
damages, with the return of all FSC paid or the difference between the FSC and our actual
costs, disgorgement of unearned profits, attorneys’ fees and costs. In March 2005, the trial
court granted our motion to dismiss the action but also granted the plaintiff the right to replead.
In April 2005, the plaintiff filed an amended class action petition, newly alleging that our FSC
violates the Oklahoma Consumer Protection Act and that we have been unjustly enriched, and
again alleged that our FSC is unconscionable under Article 2A of the Oklahoma Uniform
Commercial Code. In May 2005, we filed a motion to dismiss the amended class action petition.
In October 2005, the court granted our motion to dismiss, but allowed the plaintiff to file a
second amended complaint and we then answered the complaint. After the parties engaged in
some limited discovery, we filed a motion for summary judgment in August 2007. In February
2008, the court granted our motion to dismiss and entered judgment in our favor on all of the
remaining claims.
Other Consumer or Supplier Class Actions
1. HERC Loss Damage Waiver
On August 15, 2006, Davis Landscape, Ltd., individually and on behalf of all others similarly
situated, v. Hertz Equipment Rental Corporation, was filed in the United States District Court for
the District of New Jersey. Davis Landscape, Ltd., purported to be a nationwide class action on
behalf of all persons and business entities who rented equipment from HERC and who paid a
Loss Damage Waiver, or ‘‘LDW,’’ charge. The complaint alleges that the LDW is deceptive and
unconscionable as a matter of law under pertinent sections of New Jersey law, including the
New Jersey Consumer Fraud Act and the New Jersey Uniform Commercial Code. The plaintiff
sought an unspecified amount of statutory damages under the New Jersey Consumer Fraud
Act, an unspecified amount of compensatory damages with the return of all LDW charges paid,
declaratory relief and an injunction prohibiting HERC from engaging in acts with respect to the
LDW charge that violated the New Jersey Consumer Fraud Act. The complaint also asked for
attorneys’ fees and costs. In October 2006, we filed an answer to the complaint. In November
2006, the plaintiff filed an amended complaint adding an additional plaintiff, Miguel V. Pro, an
individual residing in Texas, and new claims relating to HERC’s charging of an ‘‘Environmental
Recovery Fee.’’ Causes of action for breach of contract and breach of implied covenant of good
faith and fair dealing were also added. After extensive discovery, the plaintiffs filed a motion to
certify the class in May 2008. In June 2008, HERC filed its opposition to class certification, as
well as a motion for summary judgment. In December 2008, the court granted class certification
and we filed a petition for leave to appeal with the U.S. Court of Appeals for the Third Circuit
requesting the court to exercise its discretion by reviewing the class certification order. In
January 2009, the trial court denied our motion for summary judgment.
2. Concession Fee Recoveries
On October 13, 2006, Janet Sobel, Daniel Dugan, PhD. and Lydia Lee, individually and on behalf
of all others similarly situated v. The Hertz Corporation and Enterprise Rent-A-Car Company was
filed in the United States District Court for the District of Nevada. Sobel purported to be a
nationwide class action on behalf of all persons who rented cars from Hertz or Enterprise at
airports in Nevada and whom Hertz or Enterprise charged airport concession recovery fees.
The complaint alleged that the airport concession recovery fees violated certain provisions of
Nevada law, including Nevada’s Deceptive Trade Practices Act. The plaintiffs sought an
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