Hertz 2008 Annual Report Download - page 78

ITEM 3. LEGAL PROCEEDINGS (Continued)
class certification was scheduled for August 2006. In May 2006, the plaintiff filed a fourth
amended petition which deleted the cause of action for conversion and the plaintiff also filed a
first amended motion for class certification in anticipation of the August 2006 hearing on class
certification. After the hearing, the plaintiff filed a fifth amended petition seeking to further refine
the putative class as including all Texas residents who were charged a FSC in Texas after
February 6, 2000. In October 2006, the judge entered a class certification order which certified a
class of all Texas residents who were charged an FSC in Texas after February 6, 2000. We then
filed an interlocutory appeal of the class certification order with the Court of Appeals, Thirteenth
District of Texas. After briefing and oral argument, the appellate court, in July 2008, reversed the
trial court’s order, decertified the class and remanded the case to the trial court for further
proceedings. The case was then settled and a ‘‘take nothing judgment’’ was entered at the trial
court in September of 2008 indicating that the plaintiff took nothing on his claims against the
defendants with a final judgment being entered with prejudice.
2. Oklahoma
On November 18, 2004, Keith Kochner, individually and on behalf of all similarly situated
persons, v. The Hertz Corporation was commenced in the District Court in and for Tulsa County,
State of Oklahoma. As with the Gomez case, Kochner purported to be a class action, this time
on behalf of Oklahoma residents who rented from us and incurred our FSC. The petition
alleged that the imposition of the FSC is a breach of contract and amounts to an
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
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