JANET SOBEL and DANIEL DUGAN, PhD. v. Hertz Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANET SOBEL and DANIEL DUGAN,
PhD.,
Plaintiffs-Appellees,
v.
HERTZ CORPORATION,
Defendant-Appellant.
No. 14-17349
D.C. No.
3:06-cv-00545-LRH-RAM
MEMORANDUM*
JANET SOBEL and DANIEL DUGAN,
PhD.,
Plaintiffs-Appellants,
v.
HERTZ CORPORATION,
Defendant-Appellee.
No. 14-17408
D.C. No.
3:06-cv-00545-LRH-RAM
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted December 12, 2016
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Hertz Corporation (Hertz) appeals the district court’s orders (1) holding that
Hertz violated Nevada Revised Statutes § 482.31575,1 (2) awarding restitution and
prejudgment interest as remedies for the statutory violation, (3) holding that Hertz
was liable for unjust enrichment, (4) rejecting Hertz’s argument that § 482.31575
violates the First Amendment, (5) rejecting Hertz’s argument that the voluntary
payment doctrine applies as an affirmative defense in this case, and (6) certifying
the class. Plaintiffs Janet Sobel and Daniel Dugan (plaintiffs) cross-appeal the
district court’s dismissal of its Nevada Deceptive Trade Practices Act (DTPA)
claim. For the following reasons, we REVERSE the district court’s holdings that
Hertz violated § 482.31575 and is liable for unjust enrichment. We VACATE the
district court’s restitution and prejudgment interest awards, and its holdings on
Hertz’s First Amendment and voluntary payment doctrine defenses. We AFFIRM
the district court’s orders certifying the class and dismissing plaintiffs’ DTPA
claim.
“[W]hen a statute is facially clear, [we] should not go beyond its language in
determining its meaning.” Nev. State Democratic Party v. Nev. Republican Party,
1 Section 482.31575 was amended in 2009. Unless otherwise indicated, all
references to § 482.31575 are to the pre-2009 version, enacted in 1989.

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256 P.3d 1, 5 (Nev. 2011). Section 482.31575 provided:
A short-term lessor shall advertise, quote and charge a rate for
leasing a passenger car that includes the entire amount except the
taxes, any fees paid to airports and any charges for mileage, that
a short-term lessee must pay to lease the car for the period to
which the rate applies.
Hertz “unbundled” Airport Concession Recovery Fees (ACRFs) from its base
rental rates, and it argues that this practice was permissible because ACRFs are
“any fees paid to airports.” Plaintiffs argue, and the district court held, that this
practice violated § 482.31575 because ACRFs are not “any fees paid to airports”
within the meaning of the statute. The district court and plaintiffs point to
perceived limitations on the types of fees included in “any fees paid to airports,”
such as whether the fees are imposed on a per-customer basis or as a percentage of
gross revenue, or whether the fees are imposed by ordinance or contract.
However, the statute is clear on its face; it covers any fees paid to airports, without
limitation. Thus, to determine whether a charge falls into the airport fees
exception, we need only ask (1) is it a fee?, and (2) is it paid to airports? For
ACRFs, the answer to both questions is yes. ACRFs have been recognized by the
Nevada legislature as fees, see, for example, § 482.313(8)(g) (2003), and Hertz
paid ACRFs to airport authorities. Pursuant to the unambiguous language of the

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statute, Hertz did not violate § 482.31575.
Because there was no statutory violation, we vacate the district court’s
restitution and prejudgment interest awards. Further, we vacate the district court’s
holdings on Hertz’s affirmative defenses (First Amendment and the voluntary
payment doctrine) because consideration of those defenses is no longer necessary.
We also reverse the district court’s holding that Hertz was unjustly enriched.
“Unjust enrichment exists when [1] the plaintiff confers a benefit on the defendant,
[2] the defendant appreciates such benefit, and [3] there is acceptance and retention
by the defendant of such benefit under circumstances such that it would be
inequitable for him to retain the benefit without payment of the value thereof.”
Certified Fire Prot., Inc. v. Precision Constr., Inc., 283 P.3d 250, 257 (Nev. 2012)
(internal quotation marks omitted). The district court based its liability finding on
the premise that “Hertz benefitted from an unjustified windfall,” as it “was without
legal power to collect the unbundled ACRF.” Because we hold that Hertz had
legal power to collect the unbundled ACRFs, Hertz did not receive an “unjustified
windfall.” It would not be inequitable for Hertz to retain the benefit, because Hertz
fully disclosed all rental charges to plaintiffs and passed the ACRFs to the airport
authorities as required.

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The district court did not abuse its discretion in certifying the class. Hertz
challenges certification on (1) predominance of common issues, and (2) adequacy
of class representatives. As to the first ground, the district court did not abuse its
discretion in concluding that common questions of law or fact predominate over
individual issues. See Fed. R. Civ. P. 23(b)(3). The case primarily concerns a
question of law common to all; namely, whether Hertz’s rental rate disclosures
violated § 482.31575. As to the second ground, the district court did not abuse its
discretion in concluding that Sobel and Dugan’s previous professional connections
with class counsel were not so extensive as to make them inadequate
representatives. Because we affirm class certification, the class certified by the
district court is bound by our holdings, including that Hertz did not violate
§ 482.31575 and was not unjustly enriched.
On cross-appeal, we affirm dismissal of plaintiffs’ DTPA claim. Plaintiffs’
claim requires a finding that Hertz knowingly violated § 482.31575. See
§§ 41.600, 598.0923(3). Because Hertz did not violate § 482.31575, this claim
fails. Moreover, as the district court found, Hertz’s practices were not misleading
within the meaning of the DPTA because Hertz quoted a rate including the ACRFs
when plaintiffs made reservations, and did not increase the fees beyond the initial

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quote. Thus, any alternative theories of liability for deceptive trade practices under
the DPTA that plaintiffs advance fail, because Hertz did not engage in deceptive
practices.
Each party shall bear its own costs on appeal.
REVERSED IN PART, VACATED IN PART, AND AFFIRMED IN
PART.

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