EZ-Pass Paid and Certified: Nationwide Class Certification Granted under New Jersey’s Consumer Fraud Act

Michael A. Iannucci

A nationwide class of 17.9 million members was certified by a judge in the District of New Jersey last week in Mendez v. Avis Budget Group, Inc. and Highway Toll Administration LLC. The Court also granted Florida and New Jersey sub-classes. The suit alleges that Avis secretly charged drivers who rented cars for an electronic toll-payment service (“e-Toll”). Specifically, Plaintiff Jose Mendez alleged that his rental agreement with Avis did not specify he would be automatically enrolled as an e-Toll subscriber and charged an alleged convenience fee of $2.50 per day and up to $10 a week for the service, irrespective of whether he paid for the highway tolls he incurred.

The Court, in granting class certification to the nationwide class, held that common questions of fact and law predominate over any questions of law or fact affecting only individual members of the class. Indeed, the Court found that plaintiff and the class alleged that the defendants engaged in unlawful conduct by failing to provide the necessary e-Toll disclosures such that each person was apprised of those costs and that the non-disclosure/inadequate disclosure by defendants resulted in concrete and ascertainable loss, “albeit [a] de minimis” one. The Court granted class certification even where Mendez’s experience did not mirror that of the class he is now representing. Chiefly, other class members received more detailed disclosures about e-Toll than Mendez; however, the Court nonetheless found that common questions of law and fact predominate. The Court was also unpersuaded by defendants’ other predominance and commonality arguments—chiefly that every customer’s experience is unique and that the disclosures are different—relying in part on Plaintiff’s expert who testified that the terms and conditions of the e-Toll program were not knowable. Lastly, the Court found that Mendez was an adequate class representative even though he previously spent years working for Plaintiff’s class counsel’s law firm.

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