UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Edward Schwartz, on behalf of himself )

and others similarly situated, )

) No.2:11-CV-04052 (JLL)

Plaintiff, )

) THIRD AMENDED CLASS-ACTION

vs. ) COMPLAINT

)

Avis Rent A Car System, LLC, and Avis )

Budget Group, Inc. )

)

Defendants. )

INTRODUCTION

Edward Schwartz, on behalf of himself and others similarly situated, brings this action to 

obtain damages from and injunctive relief against Avis Rent A Car System LLC and Avis 

Budget Group, Inc. (collectively “Avis”) for charging him and class members hidden surcharges 

for frequent-flyer miles or reward points earned from Avis’s travel partners in connection with 

their rental-car agreements.

PARTIES

1. Plaintiff, Edward Schwartz, is a citizen of Ohio, residing at 5060 Crofton Road, 

Solon, Ohio 44139. During the class period, Avis charged Schwartz and Schwartz paid Avis a 

hidden surcharge for frequent-flyer miles he earned from an Avis travel partner in connection 

with his rental-car agreement.

2. Defendant, Avis Budget Group, Inc. (“ABG”) is a corporation organized under 

the laws of Delaware with corporate headquarters located at 6 Sylvan Way, Parsippany, NJ 

07054. 

3. Defendant, Avis Rent A Car System, LLC (“ARACS”), is a Delaware general 

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limited liability company with world headquarters located at 6 Sylvan Way, Parsippany, NJ 

07054. Defendant ARACS is an indirect subsidiary of Defendant ABG.

4. Together, Defendant ABG and Defendant ARACS control the website, 

www.avis.com, from these headquarters.

JURISDICTION AND VENUE

5. This Court has diversity subject-matter jurisdiction over this class-action lawsuit 

pursuant to the Class Action Fairness Act of 2005, which amended 28 U.S.C. § 1332 to add a 

new subsection (d) conferring federal jurisdiction over class actions where, as here, “any 

member of a class of Plaintiffs is a citizen of a State different from any defendant” and the 

aggregated amount in controversy exceeds five million dollars ($5,000,000), exclusive of interest 

and costs.” 

6. This Court has personal jurisdiction over the parties because Plaintiff submits to 

this Court’s jurisdiction and Avis is headquartered in this District.

7. Venue exists in this Court under 15 U.S.C. § 22 and 28 U.S.C. § 1391 because 

Avis resides in, transacts business in, is found within, and has agents in this District and a 

substantial part of the events giving rise to Plaintiff’s claims arose in this District.

FACTUAL ALLEGATIONS

A. Avis’s background

8. Avis and its subsidiaries operate one of the world’s leading car-rental brands, 

providing business and leisure customers with a wide range of services at more than 1,200

locations in the U.S. and nearly 900 locations in Canada, Australia, New Zealand, and the Latin 

American/Caribbean region. Founded in 1946, Avis was the first company to rent cars at airport 

locations. Within the U.S., Avis maintains approximately 344 airport locations and 905 offCase 2:11-cv-04052-JLL-JAD Document 96 Filed 05/29/13 Page 2 of 26 PageID: 1476
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airport locations.

9. To rent a vehicle from Avis, customers must make a vehicle reservation either by 

telephone or online through www.avis.com. This lawsuit currently concerns only vehicle rentals 

made through www.avis.com. 

10. When making reservations through www.avis.com, customers enter the date, 

time, and location of their rental; the type of vehicle to be leased; and certain personal data. 

11. When making their online reservation, customers also may choose to purchase, 

for an additional fee, rental options such as GPS Navigation, Roadside SafetyNet, XM Radio, a 

Fuel Service Option, and various rental protections and coverages, such as Loss Damage Waiver, 

Personal Accident Insurance, Personal Effects Protection, and Additional Liability Insurance.

12. During the online-reservation process, Avis prominently displays an estimated 

total of the rental charges on-screen, which estimated total includes the customer’s base rate, 

taxes and surcharges, and any rental options. 

13. Upon completion of the online reservation, Avis e-mails a confirmation of this 

estimated rental total cost to the customer. This estimated total cost continues to include the 

aforementioned mandatory and optional charges as well as a suggestion that the “estimated” 

qualifier of the total cost concerns the fact that “[e]xtensions or late returns result in additional 

charges” (emphasis added).

14. While Avis only sometimes provides customers with a document entitled Rental 

Terms and Conditions at the time that customers pick up their rental vehicles, Avis always 

provides customers with a Rental Document that describes details of the rental, including the 

vehicle’s make and model; the rental dates; the mileage at pick-up; and an itemized list of the 

rental charges, including all optional charges such as GPS Navigation and the Fuel Service 

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Option. 

15. Similarly, when customers return the vehicle, Avis provides them a Return 

Document, which itemizes the final rental charges.

16. As part of Avis’s vehicle-rental business, it offers complimentary membership 

programs designed to speed-up and streamline the car-reservation and rental process. 

17. The My Avis Service Program provides customers with a personal member 

identification number—a “Wizard” number—that allows them to create and save a rental profile

that contains their personal data, rental preferences, and special-discount information. This way, 

customers needn’t provide this information every time they make a reservation.

18. The Avis Preferred Service Program, which also allows customers to create a 

personal rental profile using a “Wizard” number, includes the added benefit of allowing 

customers to bypass the service counter upon airport arrival and to proceed directly to their 

reserved rental vehicle where the Rental Document and sometimes the Rental Terms and 

Conditions await them. 

19. Customers who enroll in the My Avis Service Program agree to be bound by 

various terms, described in Avis’s Terms of Use/Disclaimer.

20. Customers who enroll in the Avis Preferred Service Program agree to be bound 

by various terms, described in the Avis Preferred Service Global Terms and Conditions

(“Preferred Terms and Conditions”).

21. My Avis and Avis Preferred Service members both may choose to receive ereceipts for their rental transaction, which e-receipts itemize their final rental charges.

B. Avis’s travel-partner program and this program’s secret frequent-flyer-miles surcharge

22. Through Avis’s Travel Partner Program, customers may earn frequent-flyer miles 

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or reward points on car rentals made at participating Avis airport locations through a variety of 

partnerships with airlines, hotels, and other select companies (Avis’s “Travel Partners”). 

23. For example, at the time that Plaintiff entered into the rental transaction that is the 

subject of this complaint, customers could earn 50 miles per rental day or 500 miles on rentals of 

five or more days with Continental Airlines and could earn 600 reward points per rental with 

Southwest Airlines.

24. Avis Preferred Service customers who wish to earn frequent-flyer miles or reward 

points may enter their frequent-flyer or reward-program membership number during the online 

reservation process. All other customers who wish to earn miles or reward points may submit 

their frequent-flyer or rewards-program membership number by telephone after completing the 

online reservation.

25. To participate in its Travel Partners’ frequent-flyer and reward-points programs, 

Avis pays its Travel Partners for the cost of miles or points purchased from them as well as a 

7.5% federal excise tax. Under the Tax Relief Act of 1997, this 7.5% federal-excise tax applies 

to all states, except Arizona, California, Missouri, Oregon and Wyoming.

26. But without suitable disclosure, Avis turns around and charges its customers a 

surcharge for “earning” miles or reward points from its Travel Partners when at all stages in the 

rental process Avis suggests to its customers that it would provide them these miles or reward 

points at no additional charge.

27. Upon information and belief, Avis typically charges its customers $0.75 per rental 

day for the “benefit” of accruing frequent-flyer miles or reward points.

28. But neither Avis’s Terms of Use/Disclaimer associated with its My Avis Service 

Program nor its Preferred Terms and Conditions associated with its Avis Preferred Service 

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Program ever explains that Avis will charge customers for frequent-flyer miles or reward points.

29. In this manner, Avis baits and switches its customers first by suggesting that it 

will provide them frequent-flyer miles or reward points at no additional charge and then 

quietly—if not secretly—charging customers for these frequent-flyer miles or reward points 

without ever properly and objectively disclosing and explaining this surreptitious charge. 

30. At no time during the reservation-and-rental process does Avis disclose to 

anyone—in an objectively visible and understandable way—that it will charge all customers for 

frequent-flyer miles or rewards-points earned with their vehicle rentals. 

31. Instead, Avis makes customers believe that it will provide them frequent-flyer 

miles or reward points at no additional charge while unnoticeably charging them for these miles 

or points.

32. Unlike surcharges for the Energy Recovery Fee, Customer Facility Charge, and 

rental options like GPS Navigation, Avis does not list its frequent-flyer miles or rewards-points 

surcharge on the estimated total that Avis prominently displays during the online reservation 

process, nor does Avis list this surcharge anywhere on the e-mail reservation confirmation that 

itemizes every other charge Avis intends to charge its customers.

33. Likewise, Avis’s various terms and conditions make no mention that Avis will 

charge customers for earning frequent-flyer miles or reward points. With respect to rental 

charges, Avis’s Rental Terms and Conditions and its Preferred Terms and Conditions instead 

explain as follows: 

6. Rental Charges

* * *

You’ll pay all charges that apply to the rental for miscellaneous 

services, and, where permitted, airport facility fees and/or 

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concession recovery fees, and vehicle license recovery fees, other 

fees and surcharges.

34. What’s more, Avis’s Preferred Service Benefits webpage simply proclaims that 

“[w]ith over 50 travel partners worldwide, it’s easy to earn frequent traveler miles or points on 

paid rentals,” while its Traveler Preferences – HELP webpage merely explains, as follows: 

Frequent Traveler Program 

Avis has many partner relationships with airlines, hotels, and 

destinations. Renters can earn bonus miles, points and special 

discounts in these programs.

Frequent Traveler Membership Number

Avis has many partner relationships with airlines, hotels, and 

destinations. Renters can earn bonus miles, points and special 

discounts in these programs.

35. Like Avis’s Rental Terms and Conditions and its Preferred Terms and Conditions, 

Avis’s Preferred Service Benefits and Traveler’s Preferences – HELP webpages also make no 

mention of charging customers for frequent-flyer miles or reward points—even while

specifically discussing Avis’s frequent-traveler program.

36. Instead of describing its frequent-flyer miles or rewards-points surcharges during 

the reservation process or anywhere in the explanatory materials that shape and control its 

customers’ rental relationships, when customers pick up their vehicles, Avis includes on the 

Rental Document—for the first time—a line-item charge tucked discreetly into the lower lefthand corner entitled “FTP SUR.” (Avis switches to describing this coded entry as “FTP SR” on 

customers’ Return Document or optional e-receipt.) 

37. Importantly, neither Avis’s Rental Document nor its Return Document or ereceipt describes theses codes (although describing them in the Return Document or e-receipt 

wouldn’t much matter since by that time customers have concluded their rentals) or explains that 

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these codes concern surcharges for customers’ frequent-flyer miles or reward points earned from

vehicle rentals.

C. Plaintiff’s facts

38. On May 15, 2011, Plaintiff—an Avis Preferred Service member—made a rental 

reservation through www.avis.com. His reserved a one-day rental of a Ford Escape (or similarly 

classed vehicle) for May 15-16, 2011, which he planned to pick up and return to ManchesterBoston Regional Airport. 

39. During the reservation process, Avis prompted Plaintiff to enter his Continental 

OnePass frequent-flyer number, which he did. This way, Plaintiff could receive 50 frequent-flyer 

miles for his one-day car rental.

40. Before completing his vehicle rental, Avis listed all of Plaintiff’s rental charges, 

none of which included a frequent-flyer mile surcharge.

41. Immediately after Plaintiff completed his rental reservation, Avis sent him an email reservation confirmation, which confirmation estimated the total cost for the rental to be 

$134.11. A true copy of that confirmation is attached as Exhibit 1.

42. Plaintiff’s estimated total cost included all the charges that he had selected only 

moments earlier (i.e., GPS navigation) or that Avis had required (i.e., Avis’s daily rental amount 

and the associated taxes, fees, and charges)—and that Avis had listed—when Plaintiff made his 

reservation. 

43. Avis’s e-mail reservation confirmation quoted only the following charges and 

fees, making no mention of a frequent-flyer miles or rewards-points surcharge:

Base Rate and Charges

Base Rate $94.99/day

Energy Recovery Fee $0.50/day

Vehicle License Fee $3.00/day

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Customer Facility Charge $2.25/day

Concession Recovery Fee 10 %

Tax (9.0%) $9.92

Rental Options

GPS Navigation $13.95

44. Avis’s e-mail reservation confirmation described certain taxes and fees that were 

not included on it: 

Additional Fees

Optional equipment and coverages may be subject to taxes and 

fees that are not included in the estimated total.

* * *

Where2 GPS Navigation:

 Taxes not included.

* * *

Gas Service Option:

Fees for the Gas Service Option are not included in the Estimated 

Total.

45. But unlike Avis’s e-mail reservation confirmation’s suggestion that the 

aforementioned charges would appear later, this confirmation neither included a frequent-flyer 

miles or rewards-points surcharge nor suggested that one would appear later. 

46. So while Plaintiff knew precisely what other charges to expect (or not to expect), 

he neither had nor could have had any reasonable idea that Avis intended to charge him for 

frequent-flyer miles or reward points.

47. When Plaintiff arrived at the airport on the day of his rental, as an Avis Preferred 

Service member he dashed past the Avis service counter and headed directly to his vehicle, as 

Avis intended and its Preferred Service program encouraged.

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48. Avis had slid Plaintiff’s Rental Document (true copy attached as Exhibit 2) into a 

Rental Terms and Conditions multi-fold sleeve (true copy attached as Exhibit 3) and had placed 

both inside his car. Plaintiff’s Rental Document included the identical charges as had appeared 

on Avis’s e-mail reservation confirmation but now—for the first time—Avis included its 

$0.75/day “FTP SUR” charge.

49. As described earlier, this new charge was tucked quietly into the Rental 

Document’s lower left-hand corner as the bottom line in a sea of other undefined and 

unhighlighted codes and in tiny font designed and formatted never to be read or questioned, 

much less understood by a reasonable renter, especially one who was dashing and driving, as 

Avis intended and its Preferred Service program encouraged.

50. When Plaintiff returned his car the next day, Avis issued him a Return Document 

(true copy attached as Exhibit 4) and later sent him an e-receipt, a true copy of which is attached 

as Exhibit 5. Both included an “FTP SR” charge of $0.75/day, still failing ever to explain what 

this charge was and switching it from FTP SUR to FTP SR.

CLASS-ACTION ALLEGATIONS

51. Plaintiff brings this lawsuit on behalf of the following class under Rules 23(b)(2) 

and (3) of the Federal Rules of Civil Procedure:

All Avis customers who rented a vehicle from Avis through 

www.avis.com and who paid a surcharge for receiving frequentflyer miles or reward points from an Avis Travel Partner.

Excluded from Plaintiff’s class are (a) Avis and any entity in 

which Avis has a controlling interest; (b) Avis’s employees, 

officers, directors, agents, and representatives and their family 

members; (c) class counsel, employees of class counsels’ firms, 

and class counsels’ immediate family members; and (d) the 

presiding judge and magistrate judge and any of their immediate 

family members.

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52. Avis deceived Plaintiff into paying a surcharge for his frequent-flyer miles or 

reward points in connection with his vehicle rental; therefore, Plaintiff is a class member.

53. Plaintiff can identify all other class members from Avis’s records. 

54. Plaintiff does not know the exact size of the class since this information is in 

Avis’s exclusive control. But based on the nature of the commerce involved, Plaintiff believes 

that the class numbers in the thousands and that class members are dispersed throughout the U.S. 

Therefore, joinder of all class members would be impracticable, and class treatment is the 

superior method for fairly and efficiently adjudicating this controversy.

55. Plaintiff’s claims are typical of other class members’ claims because Plaintiff and 

class members were all injured by Avis’s uniform deception of leading customers to believe that 

Avis would not charge them for frequent-flyer miles or reward points.

56. Common legal or factual questions predominate within the class, including but 

not limited to the following:

a. Whether Avis’s uniform representations, omissions, and conduct 

regarding its frequent-flyer miles or rewards-points surcharge were 

misleading or false;

b. Whether Avis uniform behavior in marketing its Travel Partner Program 

constituted affirmative misrepresentations, intentional omissions, or 

unconscionable commercial practices that violated the New Jersey 

Consumer Fraud Act, N.J.S.A. 56:8-1 et seq.;

c. Whether Avis’s uniform representations, omissions, and conduct were 

likely to deceive consumers into believing that Avis would provide them 

frequent-flyer miles or reward points at no additional charge to the other 

prices that Avis enumerated in consumers’ rental reservations;

d. Whether Avis undertook a course of conduct to hide its frequent-flyer 

miles or rewards-points surcharge;

e. Whether Avis’s conduct injured Plaintiff and class members; 

f. Whether as a result of Avis’s wrongdoing, Plaintiff and class members 

sustained damages and are entitled to damages and/or restitution and if so, 

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the proper measure and appropriate formula for determining their damages 

and restitution; and

g. Whether Avis owes Plaintiff and the class members injunctive relief.

57. Plaintiff can and will fairly and adequately represent and protect class members’ 

interests and has no interests that conflict with or are antagonistic to their interests. Moreover, 

Plaintiff’s attorneys are experienced and competent in complex, class-action litigation.

58. Class certification is the superior procedural vehicle for fairly and efficiently 

adjudicating Plaintiff’s claims because:

a. Common questions of law or fact predominate over any individual 

questions that exist within the class and, consequently, economies to the 

Court and the parties exist in litigating these common issues on a 

classwide basis instead of on a repetitive, individual basis;

b. Each class member’s damage claim is too small to make individual 

litigation an economically viable possibility, and few class members have 

any interest in individually controlling the prosecution of separate actions;

c. Class treatment is required for optimal deterrence and compensation and 

for limiting the Court-awarded, reasonable legal expenses incurred by 

class members;

d. Despite the relatively small size of each class member’s claim, the 

aggregate volume of their claims—coupled with the economies of scale 

inherent in litigating similar claims on a common basis—will enable class

counsel to litigate this case on a cost-effective basis; and

e. Plaintiff anticipates no unusual difficulties in this class action’s 

management in that all legal and factual questions are common to the 

class.

59. Class certification is appropriate under Federal Rule 23(b)(2) because Avis has 

acted on grounds generally applicable to Plaintiff and the class members, all of whom are at 

imminent risk of irreparable harm from Avis having charged and continuing to charge them 

hidden surcharges for frequent-flyer miles and reward points and all of whom are entitled, as a 

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result, to a declaration that establishes their rights and Avis’s duties with respect to these 

surcharges.

FIRST CAUSE OF ACTION

Violation of New Jersey Consumer Fraud Act Against ABG and ARACS

(N.J.S.A. 56:8-1, et seq.)

58. This legal claim incorporates all of the foregoing allegations.

59. In violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq.—

particularly N.J.S.A. 56:8-2—Avis used and employed unconscionable commercial practices, 

deception, fraud, misrepresentations, and/or the knowing concealment, suppression, and/or 

omission of material facts with the intent that others rely thereon, in its marketing, advertisement 

and implementation of its Travel Partner Program. 

60. Avis’s unlawful conduct – Avis’s affirmative misrepresentations. By the 

following affirmative acts, Avis misrepresented the truth to Plaintiff and other reasonable renters, 

acting in such a manner as to convince Plaintiff and other reasonable renters that Avis would not 

charge them for the frequent-flyer miles or reward points that Avis invited and encouraged 

Plaintiff and reasonable renters to request during the rental-reservation process:

a. Avis affirmatively represented to Plaintiff and other reasonable renters

that its Travel Partner Program involved no additional charge in the 

estimated price that Avis quoted to Plaintiff and other reasonable renters 

by failing to disclose its frequent-flyer miles or rewards-points surcharge 

to Plaintiff and other reasonable renters and instead by enumerating only 

other fees and charges associated with Plaintiff’s and other reasonable 

renters’ vehicle rentals.

b. Avis affirmatively listed multiple other charges to Plaintiff and other 

reasonable renters during the on-line rental-reservation process and 

affirmatively invited Plaintiff and other reasonable renters to enter their 

airline frequent-flyer number or points-program number, which they did. 

But during this entire time and afterwards, Avis affirmatively hid (in 

discrete, extremely difficult-to-find areas on its website) and affirmatively 

encoded (in later-produced documents that Avis expected neither Plaintiff 

nor reasonable renters to see, understand, or appreciate) the fact that Avis 

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was affirmatively charging Plaintiff and other reasonable renters 

$.0.75/day for the frequent-flyer miles or reward points that Avis never 

properly disclosed during the reservation process.

c. Although Avis’s rental-reservation process “estimated” Plaintiff’s and 

other reasonable renters’ eventual rental prices, Avis affirmatively 

misrepresented that only specific pricing elements constituted Plaintiff’s 

and other reasonable renters’ rental prices, and these specific elements did 

not include Avis’s frequent-flyer miles or rewards-points surcharge. 

d. While affirmatively misrepresenting to Plaintiff and other reasonable 

renters that their estimated rental prices were based on specifically 

enumerated pricing elements, Avis also affirmatively represented that only 

extensions, late returns, or its Gas Service Option were subject to later 

inclusion to Plaintiff’s and other reasonable renters’ estimated rental 

prices. But Avis made no similar reference that its frequent-flyer miles or 

rewards-points surcharge would also affect Plaintiff’s and other reasonable 

renters’ rental prices.

e. Although Avis’s rental-reservation process clearly and affirmatively stated 

and explained to Plaintiff and other reasonable renters that Avis would not 

charge them for the frequent-flyer miles or reward points that Avis’s online rental-reservation process affirmatively encouraged Plaintiff and other 

reasonable renters to request, Avis did, in fact, charge Plaintiff and other 

reasonable renters for these frequent-flyer miles and reward points.

f. Avis affirmatively structured and designed its website in such a manner as 

to bury its website’s sole reference to Avis’s frequent-flyer miles or 

rewards-points surcharge multiple mouse actions (meaning drags and 

clicks) and web pages deep. Avis also affirmatively structured and 

designed its website in such manner as to cause Plaintiff and other 

reasonable renters not to discover Avis’s frequent-flyer miles or rewardspoints surcharge. 

To discover Avis’s frequent-flyer or reward-points surcharge, Plaintiff and 

other reasonable renters would have had to undertake the investigative 

process from a place entirely unassociated with where they would start the 

online-reservation process (much less an investigation that they never 

even knew or ever expected they had to initiate). To discover this charge, 

Avis affirmatively structured and designed its website in such manner as 

to require Plaintiff and other reasonable renters to sidestep the reservation 

fields that Avis prominently displayed on its homepage and from where 

Avis reasonably expected Plaintiff and other reasonable renters to begin 

their on-line rental-reservation process.

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Instead, Plaintiff and other reasonable renters had to (yet wouldn’t or 

couldn’t) know to click “Cars & Services,” which is not only Avis’s last of 

four tabs but bears a moniker having no reasonable relationship to the 

rental-reservation process. In this manner, Avis affirmatively structured 

and designed its website in such manner as to require Plaintiff and other 

reasonable renters to plot a course through multiple web pages if they ever 

hoped to find Avis’s eventual reference to its frequent-flyer miles or 

rewards-points surcharge (affirmatively misdescribed three times as a 

“Tax”) that Avis buried deep in its website. 

Avis’s affirmative web design and structure creates the plausible inference 

that Avis affirmatively acted to prevent Plaintiff and other reasonable 

renters from discovering its frequent-flyer miles or rewards-points 

surcharge.

g. Avis’s website, rental-reservation process, Rental Documents, and Return 

Documents were structured and designed in such a way as to hide Avis’s 

charge to Plaintiff and other reasonable renters for the frequent-flyer miles 

or reward points that Avis invited them to accrue when entering their 

airline frequent-flyer number, or points-program number. Avis hid this 

surcharge from Plaintiff and other reasonable renters when Avis could 

have easily and simply referred to this charge in its enumerated pricing 

fields and/or on its homepage for Plaintiff and other reasonable renters to 

see before completing their rental reservation. 

Instead, Avis, in addition to omitting reference to its frequent-flyer miles 

or rewards-points surcharge from the rental-reservation process and hiding 

it deep in its website, listed its frequent-flyer miles or rewards-points 

surcharge at the bottom of the lower left-hand corner of Plaintiff’s and 

other reasonable renters’ Rental Documents’,in no darker or more 

pronounced, or larger print or font than any of these documents’ other proforma terms, which Rental Document Avis slipped quietly into a multifold sleeve. 

Avis designed its rental-reservation process so that Plaintiff and other 

reasonable renters would have little chance even to see their Rental 

Documents and Return Documents (and the new terms tucked into them) 

before committing to Avis and driving off since, after all, Avis’s Rental 

Documents and Return Documents did not even exist when Plaintiff and 

other reasonable renters formed their contracts with Avis. 

Moreover, Avis’s first non-buried and non-website reference to its 

frequent-flyer surcharge was in the form of a secret code—“ FTP SUR”: a 

code that was contained in Avis’s Rental Document and that Avis could 

not expect any reasonable renter to crack, especially considering that this

acronym neither looks nor sounds like “frequent-flyer” or “reward points”

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anything. Avis then re-encoded this charge as “FTP SR$” in Plaintiff’s 

and other reasonable renters’ Return Documents to make doubly sure that 

they would not realize what Avis had done. 

These facts create the plausible inference that Avis made affirmative 

misrepresentations for the purpose of committing an unlawful act 

proscribed by the NJCFA—namely, to generate additional and illegal 

revenues from Plaintiff and other reasonable and unsuspecting renters.

h. Avis’s affirmative misrepresentations were material to Plaintiff’s and 

other reasonable renters’ decisions to request frequent-flyer miles or 

reward points. The knowledge of a charge for frequent-flyer miles or 

reward points is important to vehicle renters because: (1) they need and 

deserve to make informed decisions concerning whether they want to 

spend money for frequent-flyer miles or reward points, and (2) they need 

and deserve to be able to calculate whether these frequent-flyer miles or 

reward points might actually cause them to lose money where Avis’s 

surcharge for frequent-flyer miles or reward points exceeds the cash value 

of the miles or points received.

But Avis did not allow Plaintiff and other reasonable renters to make this 

important calculation. Avis intentionally disregarded these practical and 

important reasons for why Plaintiff and other reasonable renters needed to 

know that Avis was charging them for frequent-flyer miles and reward 

points. Avis’s disregard of a fact affecting the ultimate cost to Plaintiff and 

other reasonable renters for frequent-flyer miles or reward points creates 

the plausible inference that Plaintiff and other reasonable renters would 

have considered knowledge of the surcharge material to their decision 

whether or not to provide Avis their airline frequent-flyer number or 

points-program number—as opposed, importantly, to this information 

having affected their decision to rent a vehicle from Avis.

61. Avis’s unlawful conduct – Avis’s intentional omissions. Avis made the following 

omissions with intent and knowledge to conceal or omit material facts (i.e., knowing 

concealments) by both failing to include these material facts in a place where Plaintiff and other 

reasonable renters would expect to see them and by instead (to the extent that any disclosure was 

made at all) hiding these facts in obscure places with the intention that neither Plaintiff nor other 

reasonable renters ever see them:

a. When Plaintiff and other reasonable renters executed their rental 

agreements, Avis had not disclosed to them its intention to charge them 

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for frequent-flyer miles or reward points, which Avis did intend to do, if 

Plaintiff and other reasonable renters accepted Avis’s invitation to enter 

their airline frequent-flyer number or points-program number.

b. Avis never informed Plaintiff and other reasonable renters of the frequentflyer miles or rewards-points surcharge that Avis intended to (and did) 

charge them if Plaintiff and other reasonable renters accepted Avis’s 

invitation to enter their airline frequent-flyer number or points-program 

number.

c. By refusing to make a clear and comprehensive disclosure of its frequentflyer miles or rewards-points surcharge (either during the rentalreservation process or on its website) when Avis was aware that it was 

going to assess this charge, Avis acted with intent and knowledge to 

conceal or omit the material fact that it was going to charge Plaintiff and 

other reasonable renters for the frequent-flyer miles or reward points that 

Avis invited them to accrue when entering their frequent-flyer number or 

points-program number.

d. Had Avis wanted or intended for Plaintiff and other reasonable renters to 

know that it was charging them for the frequent-flyer miles or reward 

points that it invited them to accrue when entering their airline frequentflyer number or points-program number, Avis could (indeed, should) have 

described this intention during the on-line rental-reservation process by 

including this charge in the list of other enumerated pricing fields that 

Plaintiff and other reasonable renters observed while engaging in the 

vehicle-rental process, or elsewhere on Avis’s website.

To accomplish this, Avis could (indeed, should) have included this 

surcharge (or at least reference to it) somewhere on one of the screens 

associated with Avis’s on-line rental-reservation process, including on the 

confirmation page. When doing this, Avis could (indeed, should) have 

done this in a place and manner where Avis could expect Plaintiff and 

other reasonable renters to see, appreciate, and understand it. 

The fact that Avis omitted this information from the rental-reservation 

process and omitted it from any conspicuous place on its website, when it 

could (indeed, should) have easily included it in both places, creates the 

plausible inference that Avis omitted this information intentionally and 

knowingly for the purpose of generating additional and illegal revenues 

from Plaintiff and other reasonable and unsuspecting renters.. 

e. Avis refused to disclose, during the rental-reservation process and 

meaningfully on its website, its intention to charge Plaintiff and other 

reasonable renters a frequent-flyer miles or rewards-points surcharge for 

the frequent-flyer miles or reward points that Avis invited them to accrue 

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when entering their airline frequent-flyer number or points-program 

number. 

Avis omitted any reference to its frequent-flyer miles or rewards-points 

surcharge in the enumerated items that constituted Plaintiff’s and other 

reasonable renters’ estimated charges; omitted reference to its frequentflyer miles or rewards-points surcharge when listing other charges that 

were subject to later inclusion, such as extensions, late returns, or its Gas 

Service Option; and omitted any reference to its frequent-flyer miles or 

rewards-points surcharge on its homepage, from where it encouraged 

Plaintiff and other reasonable renters to proceed when making their online vehicle rentals. 

These facts are all material omissions relating to Avis’s intention to charge 

Plaintiff and other reasonable renters for the frequent-flyer miles that Avis 

invited them to accrue when entering their airline frequent-flyer number or 

points-program number. And these facts create the plausible inference that 

Avis made these omissions knowingly and intentionally for the purpose of 

generating additional and illegal revenues from Plaintiff and other 

reasonable and unsuspecting renters.

f. Although Avis’s rental-reservation process “estimated” Plaintiff’s and 

other reasonable renters’ eventual rental prices by listing specific pricing 

elements, Avis did not similarly list or refer to Avis’s frequent-flyer miles 

or rewards-points surcharge.

By informing Plaintiff and other reasonable renters that their estimated 

rental prices were based on specifically enumerated pricing elements and 

that only extensions, late returns, or its Gas Service Option were subject to 

later inclusion in Plaintiff’s and other reasonable renters’ estimated rental 

prices, but omitting any similar reference to its frequent-flyer miles or 

rewards-points surcharge when it knew it was going to assess this charge, 

Avis acted with intent and knowledge to conceal or omit this material 

fact..

g. Avis’s intentional omissions were material to Plaintiff’s and other 

reasonable renters’ decisions to request frequent-flyer miles or reward 

points. The knowledge of a charge, which Avis intentionally omitted 

thereby creating the plausible inference that frequent-flyer miles or reward 

points could be obtained at no additional charge, is important to vehicle 

renters. This knowledge is important to them because: (1) they need and 

deserve to make informed decisions concerning whether they want to 

spend money for frequent-flyer miles or reward points, and (2) they need 

and deserve to be able to calculate whether these frequent-flyer miles or 

reward points might actually cause them to lose money where Avis’s 

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surcharge for frequent-flyer miles or reward points exceeds the cash value 

of the miles or points received.

But Avis did not allow Plaintiff and other reasonable renters to make this 

important calculation. Avis intentionally disregarded these practical and 

important reasons for why Plaintiff and other reasonable renters needed to 

know that Avis was charging them for frequent-flyer miles and reward 

points. Avis’s disregard of a fact affecting the ultimate cost to Plaintiff and 

other reasonable renters for frequent-flyer miles or reward points creates 

the plausible inference that Plaintiff and other reasonable renters would 

have considered knowledge of the surcharge material to their decision 

whether or not to provide Avis their airline frequent-flyer number or 

points-program number—as opposed, importantly, to this information 

having affected their decision to rent a vehicle from Avis.

62. Avis’s unlawful conduct – Avis’s unconscionable commercial practices and 

deceptions. Avis engaged in the following unconscionable commercial practices and deceptions:

a. Avis repeatedly listed specific pricing elements during its rentalreservation process (only the amounts of which were subject to 

adjustment), then embedded its double-encoded frequent-flyer miles or 

rewards-points surcharge into Plaintiff’s and other reasonable renters’

Rental Documents, Return Documents, and e-receipts knowing that 

Plaintiff and reasonable renters would neither detect nor understand that 

these later documents included Avis’s hidden charge.

b. In this manner, Avis advertised to Plaintiff and other reasonable renters 

merchandise (i.e., frequent-flyer miles and reward points) at no additional 

charge as part of Avis’s plan or scheme not to sell them vehicle rentals at 

the prices Avis presented and advertised in the price estimates that Avis 

provided Plaintiff and other reasonable renters.

c. As a result, Avis baited-and-switched Plaintiff and other reasonable 

renters by first not including—then later adding—secret, hidden, and/or 

improperly disclosed frequent-flyer miles or rewards-points surcharges to 

their vehicle rentals. This activity was altogether different from having 

merely encouraged Plaintiff and other reasonable renters to purchase a 

different product or service in addition to Avis’s advertised vehicle 

rentals. It was different because Avis didn’t “encourage” Plaintiff and 

other reasonable renters to do anything; rather, Avis hid what it was doing 

from Plaintiffs and other reasonable renters.

d. Avis’s intention to charge and act of charging Plaintiff and other 

reasonable renters for frequent-flyer miles or reward points (i.e., the 

charges that Avis hid or improperly disclosed) constituted Avis’s plan or 

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scheme not to sell Plaintiff and other reasonable renters vehicle rentals at 

the prices that Avis advertised to them on its website and that Avis 

described to them in its subsequent rental confirmations.

e. Avis’s bait-and-switch concerned not Plaintiff’s and other reasonable 

renters’ vehicle-rental contract as a whole but rather their interest and 

belief in receiving frequent-flyer miles or reward points for no additional 

charge, unlike the enumerated charges that Avis conspicuously 

circumscribed on Plaintiff’s and other reasonable renters’ vehicle-rental 

confirmation screen and on other screens associated with the vehiclerental process.

f. Avis’s suggestion that no additional charges would be associated with 

Plaintiff’s and other reasonable renters vehicle rentals—Avis’s “bait”—

which Avis followed by charging Plaintiff and other reasonable renters for 

the frequent-flyer miles and reward points that Avis had earlier 

intentionally suggested it would not—Avis’s “switch.” In this manner, 

Avis’s plan or scheme switched Plaintiff’s and other reasonable renters’ 

deals after they had made their rental-reservation contacts with Avis (i.e., 

after they had gotten in the door).

63. Plaintiff’s ascertainable loss resulting from Avis’s unlawful conduct. Avis’s 

above-described conduct caused Plaintiff an ascertainable loss since, as a result, Plaintiff paid for 

frequent-flyer miles when Avis suggested that he would not have to. 

64. Plaintiff had to pay for these frequent-flyer miles when he didn’t expect to or have 

to because Avis misrepresented to him that there was no charge for them and intentionally failed 

to disclose the existence of this charge. 

65. Plaintiff’s ascertainable loss is definite, certain, and measurable—$0.75/ day—

rather than merely theoretical.

66. By alleging damages of $0.75/day, which are not .67% of his total rental charge 

but are instead 100% of his overpayment for frequent-flyer miles based on Avis’s illegal 

behavior, Plaintiff and other reasonable renters are able to present their damages with certainty 

and are able to demonstrate that these damages are capable of calculation and particularization.

67. By paying for frequent-flyer miles or reward points when Avis suggested that 

Plaintiff and other reasonable renters would not have to, Plaintiff and other reasonable renters 

lost the benefit of their bargain as to frequent-flyer miles and reward points (i.e., they paid more 

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than they should have for what Avis delivered to them and paid what they did not expect or 

intend to pay). In this manner, Avis denied Plaintiff and other reasonable renters the fruits of 

their agreements with Avis as to frequent-flyer miles and reward points.

68. As such, Plaintiff and other reasonable renters received less than Avis promised 

them. Avis’s illegal conduct thus caused Plaintiff’s and other reasonable renters’ losses.

69. The causal relationship between Plaintiff paying for frequent-flyer miles and 

Avis’s scheme to make Plaintiff believe he would not have to. Avis’s misrepresentations, 

deceptions and intentional failure to list its frequent-flyer or reward-points surcharge along with 

its other enumerated pricing fields during the reservation process and Avis’s intentional act of 

burying reference to this charge deep in its website caused Plaintiff and other reasonable renters 

to pay for frequent-flyer miles or reward points.

70. Plaintiff alleges a causal connection between Avis’s unlawful conduct (i.e., Avis’s 

affirmative and/or intentional failure to list its frequent-flyer or reward-points surcharge 

alongside its other enumerated pricing fields during the reservation process, its act of 

intentionally burying reference to this charge deep in its website, and its bait-and-switch scheme) 

and Plaintiff’s and other reasonable renters’ ascertainable losses (i.e., the $0.75/day that Avis 

charged Plaintiff and other reasonable renters for frequent-flyer miles and reward points).

71. Avis’s unlawful conduct proximately caused Plaintiff and other reasonable renters 

to pay $0.75/day wrongly for frequent-flyer miles and reward points, as opposed to having 

caused them to decide whether to rent from Avis or to request frequent-flyer miles during the 

rental-reservation process. 

72. During the process in which Plaintiff and other reasonable renters rented a 

vehicle, Avis’s affirmative misrepresentations, unconscionable commercial practices, and 

deceptions were discreetly on Avis’s website and in its Rental Documents, Return Documents, 

and e-receipts, which affirmative misrepresentations, unconscionable commercial practices, and 

deceptions Plaintiff and other reasonable renters necessarily saw since they all completed the onCase 2:11-cv-04052-JLL-JAD Document 96 Filed 05/29/13 Page 21 of 26 PageID: 1495
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line reservation and subsequent rental process. In contrast, Avis kept its omissions and other 

unconscionable commercial practices and deceptions quiet, meaning Plaintiff and other 

reasonable renters did not necessarily see them, as is the nature of omissions and unconscionable 

commercial practices and deceptions that are in the form of omissions.

73. Avis expressed, made, and/or committed its affirmative misrepresentations, 

intentional omissions, unconscionable commercial practices, and deceptions during and after the 

rental-reservation process, which conduct Plaintiff and other reasonable renters were exposed to 

(as it concerned Avis’s misrepresentations or unconscionable commercial practices and 

deceptions) or which conduct Avis intentionally kept from Plaintiff and other reasonable renters 

(as it concerned Avis’s omissions or unconscionable commercial practices and deceptions in the 

form of omissions).

74. The facts constituting Avis’s affirmative misrepresentations, intentional 

omissions, unconscionable commercial practices, and deceptions create the plausible inference 

that Avis intended to and did trick Plaintiff and other reasonable renters into believing that their 

estimated rental amounts included and entitled them to frequent-flyer miles and reward points, 

which they did not, because neither Plaintiff nor other reasonable renters (as a direct and 

intended result of Avis’s affirmative misrepresentations, intentional omissions, unconscionable 

commercial practices, and deceptions) saw or understood that Avis would charge them for 

frequent-flyer miles and reward points; indeed, everything Avis did with respect to inducing 

Plaintiff and other reasonable renters to enter their airline frequent-flyer number or pointsprogram number suggested, if not affirmatively stated, precisely the opposite.

75. All the acts, practices, misrepresentations, and omissions by Avis described above 

constitute affirmative misrepresentations; intentional omissions; and unconscionable, unlawful,

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fraudulent, and deceptive commercial practices that directly and proximately caused Plaintiff’s 

and other reasonable renters’ ascertainable losses.

SECOND CAUSE OF ACTION

Breach of Contract under New Jersey Law Against ARACS

76. This legal claim incorporates all of the foregoing allegations.

77. Plaintiff contracted with Avis by reserving a rental vehicle on www.avis.com. 

That contract never explained that Avis would charge him for frequent-flyer miles or reward 

points.

78. Plaintiff fully performed and satisfied his obligations under the contract that Avis 

formed with him through Avis’s reservation process.

79. Avis breached its contract with Plaintiff by not performing according to the 

contract’s obligations in violation of New Jersey common law and by instead charging Plaintiff 

for frequent-flyer miles that Avis offered to Plaintiff at no additional charge as a term of Avis’s 

rental contract.

80. Plaintiff has suffered damages as a direct and proximate cause of Avis’s breach of 

contract.

THIRD CAUSE OF ACTION

Breach of Implied Covenant of Good Faith and Fair Dealing Against ARACS

81. This legal claim incorporates all of the foregoing allegations.

82. The contract formed between Avis and Plaintiff through Avis’s reservation 

process was subject to the implied covenant that Avis would conduct its business with Plaintiff 

in good faith and would deal fairly with him.

83. Avis breached this implied covenant by failing to disclose its Travel Rewards 

Program surcharge and by misrepresenting that it would provide him frequent-flyer miles at no 

additional charge when Avis knew that it was subjecting Plaintiff to a charge that, due to Avis’s 

failure to disclose it, Plaintiff could never have contemplated.

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84. Avis breached this implied covenant by not providing terms in its contract that 

conspicuously disclosed this surcharge to the Plaintiff.

85. Plaintiff has been damaged as a direct and proximate result of Avis’s breach of 

the implied covenant of good faith and fair dealing.

FOURTH CAUSE OF ACTION

Request for Injunctive Relief Against ABG and ARACS under New Jersey Law

86. This legal claim incorporates all of the foregoing allegations.

87. Injunctive relief is appropriate when it appears with reasonable certainty that a 

party to an action will continue or repeat its wrongful acts.

88. Enjoining Avis from continuing to charge customers, like Plaintiff, its hidden 

surcharge for frequent-flyer miles and reward points is appropriate because Plaintiff has 

established a reasonable likelihood of success on the merits; Plaintiff will suffer irreparable harm 

without such an order; the balance of the equities, including the public interest, weigh in favor of 

granting Plaintiff’s request injunctive relief; and alternate remedies are inadequate to assist 

Plaintiff.

FIFTH CAUSE OF ACTION

Request for Declaratory Relief Against ABG and ARACS

Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.

89. This legal claim incorporates all of the foregoing allegations.

90. Plaintiff contends that Avis is charging him and others illegal surcharges for 

frequent-flyer miles or reward points; Avis likely believes these surcharges are not illegal. 

91. As such, an actual controversy exists between Plaintiff and Avis concerning the 

parties’ rights and duties with respect to the legality of Avis’s surcharge for frequent-flyer miles 

and reward points.

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92. The parties require this Court’s declaration as to their respective rights, duties,

and any other relevant legal relations, whether or not Plaintiff could seek or is otherwise entitled 

to further relief.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment as follows:

A. An order declaring that this action is properly maintainable as a class action, 

certifying Plaintiff as the class representative, and designating Plaintiff’s counsel as lead counsel 

for the class;

B. An order awarding Plaintiff and the Class compensatory damages, treble 

damages, attorneys’ fees, and costs of suit for Avis’s consumer fraud, pursuant to N.J.S.A. 56:8-

19;

C. An order awarding damages to Plaintiff and the class for ARACS’ breach of 

contract;

D. An order awarding damages to Plaintiff and the class for ARACS’ breach of the 

duty of good faith and fair dealing;

E. An order enjoining Avis from continuing to charge customers for receiving 

frequent-flyer miles of reward points unless Avis properly discloses these charges;

F. An order declaring illegal Avis’s practice of charging customers for frequent-flyer 

miles or reward points with proper disclosure;

G. An order awarding Plaintiff pre- and post-judgment interest;

H. An order awarding Plaintiff’s costs of suit; and

I. An order providing such other and further relief as this Court may deem just and 

proper.

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JURY DEMAND

Plaintiff demands a trial by jury.

Dated: May 29, 2013 s/ Bruce D. Greenberg

Bruce D. Greenberg

Jeffrey A. Shooman

LITE DEPALMA GREENBERG, LLC

Two Gateway Center, 12th Floor

Newark, NJ 07102

Telephone: (973) 623-3000

Facsimile: (973) 623-0858

E-mail: bgreenberg@litedepalma.com

jshooman@litedepalma.com

Daniel R. Karon

GOLDMAN SCARLATO KARON & PENNY, P.C.

700 W. St. Clair Avenue, Suite 204

Cleveland, OH 44113

Telephone: (216) 622-1851

Facsimile: (216) 241-8175

E-mail: karon@gskplaw.com

Laura Killian Mummert

GOLDMAN SCARLATO KARON & PENNY, P.C.

101 E. Lancaster Ave, Ste. 204

Wayne, PA 19087

Telephone: (484) 342-0700

Facsimile: (484) 342-8747

E-mail: mummert@gskplaw.com

Jay R. Faeges

MILLER GOLER FAEGES, LLP

1301 E. 9th Street, Suite 2700

Cleveland, OH 44114-1835

Telephone: (216) 696-3366

Facsimile: (216) 363-5835

E-mail: faeges@millergolerfaeges.com

Attorneys for Plaintiff and the Putative Class

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