The District of Colorado declined to certify a class in a case against Dollar Rent A Car where the Plaintiff alleged Dollar tricked renters into buying Loss Damage Waiver (“LDW”), supplemental liability insurance (“SLI”), and roadside assistance (“Roadsafe”) (collectively “Add-On Products”) that they had declined, or charged them without proper consent or contrary to disclosure requirements. Plaintiff alleged Dollar violated the Colorado Consumer Protection Act and Florida Deceptive and Unfair Practices Act, and breached the rental agreements, and sought declaratory relief and certification of a class of all persons who rented cars from Dollar in Colorado and Florida since January 1, 2009 and were charged for LDW, SLI, and/or Roadsafe by Dollar other than as part of a pre-paid tour reservation.
The Court found the class overbroad because it includes renters who purposely chose to purchase the Add-On Products, were not deceived, received a benefit, or were otherwise not injured, and because it includes renters, like the Plaintiff, who received a full refund of the purchase of the Add-On Products. In addition, the Court reasoned that the Plaintiff had not proposed objective criteria by which such individuals could be identified and excluded from the class, and noted that individualized fact finding would be required for the millions of people in the class.
Despite finding several issues common to the class, including whether Dollar failed to provide disclosures as required by law, whether its method of selling the Add-On Products was illegal or likely to deceive, and whether class members paid a premium for Add-On Products that were duplicative of coverage they already had or could obtain at no cost, the Court found the Plaintiff’s claims do not depend on a common contention capable of classwide resolution. Specifically, the Court found the information about the Add-On Products that Plaintiff claimed was deceptive was not presented in a standardized way such as through a script used by all Dollar agents. Rather, the purchases turned on the interactions between the customers and the Dollar agents, and what customers were told or understood regarding the products, and their reasons for purchasing the products, could have varied greatly depending on the individualized nature of the communications. Likewise, the Court found the Plaintiff’s claims are not typical of those of the class because they are subject to unique factual circumstances as evidenced by the Plaintiff’s admission that he had not even read Dollar’s written disclosures about the Add-On Products and that he never reads such materials.
For the same reason, among others, the Court found certification under 23(b)(2) and 23(b)(3) inappropriate. The Court found the Plaintiff failed to show the class is cohesive and failed to adequately define or specify the injunctive or declaratory relief applicable to the entire class as required by Rule 23(b)(2). The Plaintiff also sought monetary relief, including actual, compensatory, statutory and/or exemplary damages. The Court also found predominance is lacking and, therefore, a class action is not the superior method of adjudicating the claims as required by Rule 23(b)(2).
Friedman v. Dollar Thrifty Auto. Group, Inc., Case No. 12–cv–02432–WYD–KMT (D. Colo. Jan 27, 2015).
