Free Motion to Dismiss - District Court of California - California

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1 Michael L. Weiner (Pro hac vice) SKADDEN ARPS SLATE MEAGHER & 2 FLOM LLP Four Times Square 3 New York, New York 10036-6522 Telephone: (212) 735-3000 4 Douglas B. Adler (Cal. Bar No. 130749) 5 SKADDEN ARPS SLATE MEAGHER & FLOM LLP 6 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071-3144 7 Telephone: (213) 687-5000 8 Sara L. Bensley (Pro hac vice) SKADDEN ARPS SLATE MEAGHER & 9 FLOM LLP 1440 New York Avenue, N.W. 10 Washington, D.C. 20005-2111 Telephone: (202) 371-7000 11 Attorneys for Defendant 12 AVIS BUDGET GROUP, INC. 13 [Additional Counsel Listed on Signature Page] 14 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

16 MICHAEL SHAMES; GARY GRAMKOW, on behalf of themselves and 17 on behalf of all persons similarly situated, Case No. 07 CV 2174 H BLM 18 19 v. 20 THE HERTZ CORPORATION, a Delaware corporation; DOLLAR 21 THRIFTY AUTOMOTIVE GROUP, INC., a Delaware corporation; AVIS BUDGET 22 GROUP, INC., a Delaware corporation; VANGUARD CAR RENTAL USA, INC., 23 an Oklahoma corporation; ENTERPRISE RENT-A-CAR COMPANY, a Missouri 24 corporation; FOX RENT A CAR, INC., a California corporation; COAST LEASING 25 CORP., a Texas corporation; and THE CALIFORNIA TRAVEL AND TOURISM 26 COMMISSION 27 28 Defendants. Plaintiffs, [Class Action]

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE RENTAL CAR DEFENDANTS MOTION TO DISMISS THE FIRST AMENDED COMPLAINT Date: July 14, 2008 Time: 10:30 a.m. Place: Courtroom 13 Honorable Marilyn L. Huff

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1 2 I. 3 II. 4 5 6 C. 7 8 III. 9 10 11 12 13 14 15 16 17 IV. 18 19 20 21 22 23 24 25 26 27 28 B. 2.

TABLE OF CONTENTS PRELIMINARY STATEMENT.......................................................................................1 BACKGROUND..............................................................................................................4 A. B. To Support An Antitrust Claim. .............................................................................6 The New Allegations In The Amended Complaint Tell The Same Old Story..........7 e To AB2592, Which Was Enacted In 2006. ......................4

ARGUMENT ...................................................................................................................7 A. Plaintiffs Again Fail To State An Antitrust Claim Under Section 1.........................7 1. Plaintiffs Fail To Allege Any Facts To Support A Conspiracy By The Rental Car Defendants To Pass On Airport Concession Fees Without Decreasing Base Rates. .................................................................9 Relating To The Pass-Through Of The Tourism Assessment Fail To Make A Conspiracy Plausible............10

Plaintiffs Fail To State Any Claim Under California Law.......................................13 1. 2. Plaintiffs Fail To State A Claim Under Either The UCL Or The FAL. ........14 Plaintiffs Fail To State A Claim Under The CLRA. ....................................18

CONCLUSION ................................................................................................................19

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1 2

TABLE OF AUTHORITIES CASES

3 Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955 (2007) ................................................................. passim 4 Belton v. Comcast Cable Holdings, LLC, 151 Cal. App. 4th 1224 (2007)...................................... 17 5 Buckland v. Threshold Enters., Ltd., 155 Cal. App. 4th 798 (2007) ......................................... 16, 17 6 Cattie v. Wal-mart Stores, Inc., 504 F. Supp. 2d 939 (S.D. Cal. 2007) ...................................... 4, 19 7 Cel-Tech Commc ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163 (1999)......................... 3, 14, 17 8 Chavez v. Whirlpool Corp., 93 Cal. App. 4th 363 (2001) .............................................................. 15 9 Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994)................................................. 8, 13 10 Hall v. Time Inc., 158 Cal. App. 4th 847 (2008)........................................................................ 3, 16 11 Kendall v. Visa U.S.A., Inc., 518 F.3d 1042 (9th Cir. 2008)......................................................... 7, 8 12 Kendall v. Visa U.S.A., Inc., No. C 04-04276 JSW, 2005 WL 2216941 (N.D. Cal. July 25, 2005)... 4 13 Khoury v. Maly s of Cal., Inc., 14 Cal. App. 4th 612 (2007).................................................... 15, 17 14 In re Late Fee & Over-Limit Fee Litig., 528 F. Supp. 2d 953 (N.D. Cal. 2007) ..................... 8, 9, 10 15 Lee v. Am. Nat l Ins. Co., 260 F.3d 997 (9th Cir. 2001)................................................................. 16 16 Multimedia Patent Trust v. Microsoft Corp., 525 F. Supp. 2d 1200 (S.D. Cal. 2007) .................... 15 17 New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090 (C.D. Cal. 2004) ............................................ 3, 15 18 Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917 (2003).................................................... 18 19 Shames v. Hertz Corp., No. 07-CV-2174 (S.D. Cal.).............................................................. passim 20 Stickrath v. Globalstar, Inc., 527 F. Supp. 2d 992 (N.D. Cal. 2007) .......................................... 4, 19 21 Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003)................................................................................ 18 22 FEDERAL STATUTES

23 15 U.S.C. § 1 (Sherman Act) ..........................................................................................................1 24 STATE STATUTES AND REGULATIONS

25 Cal. Bus. & Prof. Code §§ 17200 et seq. (West 1997 & Supp. 2008)................................... 3, 13, 15 26 Cal. Bus. & Prof. Code § 17204 (West Supp. 2008)...................................................................... 16 27 28 ii
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Cal. Bus. & Prof. Code § 17500 et seq. ......................................................................................... 13 1 Cal. Bus. & Prof. Code § 17535 .................................................................................................... 16 2 Cal. Civ. Code §§ 1750 et seq. (West 1998 & Supp. 2008)........................................................ 3, 13 3 Cal. Civ. Code § 1770 (West 2008)............................................................................................... 18 4 Cal. Civ. Code § 1936.01 (West Supp. 2008)...........................................................4, 11, 12, 16, 18 5 Cal. Code Regs. tit. 10, § 5350 (2008) ............................................................................................5 6 et seq. (West 2005 & Supp. 2008)................................................... 3, 14 7 Cal. Gov t Code § 13995.65 (West Supp. 2008)........................................................................ 5, 14 8 Cal. Gov t Code § 13995.90 (West 2005) ....................................................................... 3, 6, 14, 15 9 Cal. Gov t Code § 13995.92 (West Supp. 2008)..............................................................................5 10 2006-6C Cal. Adv. Legis. Serv. ch. 790, at 535 (Deering)........................................................... 4, 5 11 N.Y. Gen. Bus. Law § 396-z (McKinney Supp. 2008) ....................................................................5 12 N.C. Gen. Stat. § 66-202 (2007) ...................................................................................................... 5 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii
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1

Defendants The Hertz Corporation, Dollar Thrifty Automotive Group Inc., Avis Budget

2 Group, Inc., Vanguard Car Rental USA Inc., Enterprise Rent-A-Car Company, Fox Rent-A-Car 3 Incorporated, and Coast Leasing Corp. (collectively, the Rental Car Defendants ) respectfully 4 submit this Memorandum of Points and Authorities in Support of their Motion to Dismiss the First 5 Amended Complaint. 6 7 8 to infer that the companies had agreed 9 10 Shames v. Hertz Corp., No. 07-CV-2174, slip op. at 9 (S.D. Cal. Apr. 8, 2008) (quoting Bell Atl. 11 Corp. v. Twombly, 127 S. Ct. 1955, 1971 (2007)). Despite the additional pages to the First 12 13 Amended Complaint fails to allege facts that provide any basis now to find that Plaintiffs have 14 stated a cognizable claim under Section 1 of the Sherman Act, 15 U.S.C. § 1, or under California 15 state law. 16 in that it still fails to account (as I. PRELIMINARY STATEMENT

17 the law requires in order to state a claim) for the non-conspiratorial explanation for the alleged 18 parallel pricing conduct that is apparent even on the face of the Amended Complaint: Each Rental 19 Car Defendant lobbied for the economically advantageous right to state separately and pass 20 through certain types of fees, including airport concession fees and the tourism assessment fee. 21 (Am. Compl. ¶¶ 36-37.) Having secured this legislation, a rational company would exercise its 22 legal rights so that its base rates would not, by comparison, l 23 rates. Cf. Shames 24 2592 took effect in January of 2007, the rental car defendants simultaneously increased their prices 25 by approximately 9% and imposed a uniform 2.5% fee on consumers. Plaintiffs acknowledge that 26 . Specifically, as to the allegations that the Rental Car base

27 Defendants agreed to unbundle, state separately, and pass through airport concession fees to their 28 1
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1 customers without reducing their base rates, Plaintiffs have not pled any new facts. And as to the 2 allegations that the Rental Car Defendants agreed to pass through the new tourism assessment fees, 3 Plaintiffs add only a couple of communications regarding the implementation and enactment of 4 legislation (for which the Defendants lobbied) and still rely on the same core factual allegations as 5 the previously dismissed complaint. The new factual allegations do not evidence any conspiracy. 6 Accordingly, the Amended Complaint still fails to set forth a plausible conspiracy and should be 7 dismissed with prejudice. 8 In the end, this lawsuit remains nothing more than a thinly-veiled attempt by Plaintiffs

9 counsel to attempt to use the antitrust and consumer-protection laws to block legislation that, over 10 his vigorous opposition, the California State Legislature overwhelmingly approved. See Exhibit 11 ( Ex. ) A, Letter from Robert C. Fellmeth, Esq. to the Honorable Mark Leno, dated Aug. 23, 12 2006.1 This legislation, known as Assembly Bill 2592 ( AB2592 ), expressly permits passenger 13 rental car companies to unbundle and pass through to consumers certain fees, including airport 14 concession fees and the tourism assessment fee. Even though Plaintiffs affirmatively allege that 15 the Rental Car Defendants lobbied for, helped draft, and sought to implement this new legislation, 16 they continue to base this entire lawsuit on the incredible theory that Defendants needed to enter 17 into some type of separate agreement with one another to ensure that they would all actually take 18 advantage of the legislation for which they had lobbied. 19 Plaintiffs have had access to the public records of the California Travel and Tourism

20 Commission (the CTTC ), yet the only factual allegations that they proffer in support of their 21 counter-intuitive theory remain that (i) Defendants had the opportunity to conspire and (ii) the 22 Rental Car Defendants engaged in parallel conduct coincident with the date that the 23 unbundling/pass-through rights took effect. Notably, the public records that Plaintiffs cite in their 24 Amended Complaint do not support their allegations of an agreement among the Defendants, at 25 least not any agreement that Plaintiffs claim to be a violation of Section 1 of the Sherman Act. The 26
1 This Court previously took judicial notice of this document because it is a matter of 27 public record. Shames, slip op. at 10.

28 2

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1 only agreements that could be inferred from the public records relate to the tourism-assessment 2 referendum process called for by the California Tourism Marketing Act ( CTMA ) 3 Code §§ 13995 et seq. (West 2005 & Supp. 2008). These public records indicate communications 4 between and among the rental car industry and the CTTC to determine (i) at what level the new 5 assessment would have to be set in order to attain the dollar-amount of funding called for by the 6 Legislature and (ii) how to collect the new assessment from the rental car companies. Nothing in 7 these documents supports a broad price-fixing conspiracy theory. And Plaintiffs fail to add even a 8 single new allegation to support their rejected claim that the Rental Car Defendants agreed to 9 unbundle and state separately airport concession fees while not changing their base rates. 10 Plaintiffs tag-along state-law claims should also be dismissed. Specifically, Plaintiffs

11 purported claim under the Unfair Competition Law ( UCL ), Cal. Bus. & Prof. Code §§ 17200 et 12 seq. (West 1997 & Supp. 2008), should be dismissed for four reasons: 13 First, Plaintiffs UCL claim is barred by an express grant of immunity by the California

14 Legislature. See Cal. Gov t Code § 13995.90(c) (West 2005) (barring liability for claims sounding 15 in antitrust where there is compliance with the CTMA). Plaintiffs may not plead around such an 16 absolute bar by attempting to plead their claims under the UCL. See Cel-Tech Commc ns, Inc. v. 17 L.A. Cellular Tel. Co., 20 Cal. 4th 163, 182 (1999). 18 Second, Plaintiffs do not and cannot plead facts sufficient to show that the Rental Car

19 Defendants violated the Sherman Act, the Consumers Legal Remedies Act (the CLRA ), Cal. Civ. 20 Code §§ 1750 et seq. (West 1998 & Supp. 2008), or any other law. See, e.g., New.Net, Inc. v. 21 Lavasoft, 356 F. Supp. 2d 1090, 1111-12 (C.D. Cal. 2004). 22 Third, Plaintiffs do not and cannot plead facts sufficient to show that the Rental Car

23 Defendants have committed any actionable representation, or that Plaintiffs even relied on the 24 Rental Car Defendants alleged descriptions of the CTTC assessment. See, e.g., Hall v. Time Inc., 25 158 Cal. App. 4th 847, 855 (2008). 26 Fourth, Plaintiffs do not and cannot allege facts sufficient to show that the Rental Car

27 Defendants conduct was somehow unfair. 28 3
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1 2

Plaintiffs purported CLRA claim should be dismissed for two reasons: First, the Rental Car Defendants have committed no misrepresentation as to the CTTC

3 assessment, which California law defines as the charge collected by a rental company from a 4 renter that has been established by the [CTTC]. Cal. Civ. Code § 1936.01(a)(3) (West Supp. 5 2008). 6 Second, Plaintiffs do not and cannot allege that they relied on a material misrepresentation.

7 See, e.g., Cattie v. Wal-mart Stores, Inc., 504 F. Supp. 2d 939, 946 (S.D. Cal. 2007). For example, 8 Plaintiffs do not and cannot allege that they would have behaved any differently if the CTTC 9 assessment had been described differently. See Stickrath v. Globalstar, Inc., 527 F. Supp. 2d 992, 10 1000 (N.D. Cal. 2007). 11 In short, Plaintiffs have wasted enough judicial resources on this Sherman Act goose chase.

12 Cf. Kendall v. Visa U.S.A., Inc., No. C 04-04276 JSW, 2005 WL 2216941, at *1 (N.D. Cal. July 25, 13 2005) ( For private antitrust claims, if the facts do not at least outline or adumbrate a violation of 14 the Sherman Act, the plaintiffs will get nowhere merely by dressing them up in the language of 15 antitrust. ) (quoting Rutman Wine Co. v. E & J Gallo Winery, 829 F.2d 729, 736 (9th Cir. 1987)), 16 aff d, 518 F.3d 1042 (9th Cir. 2008). The Court should dismiss the Amended Complaint with 17 prejudice because Plaintiffs cannot state a Section 1 claim for which relief can be granted, and their 18 state-law claims also fail as a matter of law. 19 20 21 A. II. BACKGROUND .

This litigation concerns California Assembly Bill 2592 ( AB2592 ), which the Legislature

22 enacted in 2006. (Am. Compl. ¶¶ 2, 36-39, 43.) The law amends the CTMA by providing for an 23 increase in funding for the CTTC, as long as the rental car industry accepts an assessment that 24 would generate the increased funding. See 2006-6C Cal. Adv. Legis. Serv. ch. 790, at 535 25 (Deering). (See also Am. Compl. ¶ 43.) Further, provided that the rental car industry has accepted 26 the increased assessment, the law also permits the passenger rental car companies to state 27 separately the new tourism assessment and unbundle existing airport concession fees from their 28 4
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1 base rates and pass on those charges separately to renters. See 2006-6C Cal. Adv. Legis. Serv. ch. 2 790, at 536 (Deering). (See also Am. Compl. ¶ 43.) 3 Plaintiffs acknowledge that the Rental Car Defendants lobbied for this legislation. (Am.

4 Compl. ¶ 36 (alleging that the Rental Car Defendants proposed end-of-session substantial changes 5 to an uncontroversial bill, ultimately resulting in AB2592 being amended to the form in which it 6 was enacted).) Indeed, it is incontrovertible that the Rental Car Defendants did so in order to gain 7 legislative authorization to permit them to pass through the airport concession fee to their 8 customers and to separate out the new tourism assessment fee. This authorization would align 9 California with the vast majority of other States that had previously authorized rental car 10 companies to unbundle and pass through airport concession fees to their customers, including by 11 specific statutory provisions. See, e.g., N.Y. Gen. Bus. Law § 396-z (McKinney Supp. 2008); N.C. 12 Gen. Stat. § 66-202 (2007). 13 By its own terms, AB2592 neither directly imposes nor calculates the level of the new

14 assessment on the rental car industry. Instead, it provides that the rental car industry would have to 15 accept the new assessment level by referendum vote. See Cal. Gov t Code § 13995.92 (West Supp. 16 2008) (enacted by AB2592). (See also Am. Compl. ¶ 36.) California Government Code Section 17 13995.92 explicitly directs the CTTC to propose to the rental car industry (for their referendum 18 vote) a new assessment level that will generate funding that will be sufficient, when aggregated 19 together with other funding for the commission . . . for a spending plan for the 2006-07 fiscal year 20 of twenty-five million dollars ($25,000,000), and for the 2007-08 fiscal year of fifty million dollars 21 ($50,000,000). Similarly, a pre-existing

22 provision of the CTMA, California Government Code Section 13995.65(a), provides that [e]ach 23 industry category [represented on the CTTC] shall establish a committee to determine the 24 following within its industry category: . . . assessment formula for each industry segment, and any 25 types of business exempt from assessment. 26 The Passenger Car Rental Industry is one such industry category. Cal. Code Regs. tit. 10, § 27 5350(s) (2008). 28 5
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1

Finally, the Legislature explicitly provided a complete statutory defense against certain

2 state-law claims, such as Plaintiffs , that are based on conduct undertaken pursuant to the CTMA 3 (including AB2592). California Government Code Section 13995.90 ( Compliance with chapter 4 as defense in specified actions ) provides: 5 6 7 8 9 10 11 12 13 14 This Court dismissed Plaintiffs original complaint, which alleged that Defendants agreed B. In any civil or criminal action or proceeding for violation of any of the following, proof that the act that is complained of was done in compliance with the provisions of this chapter [the CTMA] is a complete defense to the action or proceeding: (a) The Cartwright Act, Chapter 2 . . . . (b) The Unfair Practices Act, Chapter 4. . . . (c) Any rule of statutory or common law against monopolies or combinations in restraint of trade. mphasis added). Plaintiffs Initial Complaint Failed To Allege A Plausible Conspiracy To Support An Antitrust Claim.

15 to pass through to their customers the new tourism assessment in full and to unbundle the existing 16 airport concession fees from their base rates and pass those fees through to their customers without 17 decreasing their base rates (Complaint ¶¶ 35, 44) because, as Defendants argued, Plaintiffs only 18 alleged parallel conduct that did not permit a plausible inference of conspiracy. (Mem. of Points &
2 19 Authorities in Supp. of the Rental Car Defs Mot. to Dismiss at 7-12.) The Court explained,

20

Plaintiffs fail to place those allegations [of parallel conduct] in a context that raises a suggestion

21 of a preceding agreement, not merely parallel conduct that could just as well be independent 22 action. 23
2

Shames, slip op. at 8 (quoting Twombly, 127 S. Ct. at 1966). The Court also took judicial

24 alleged lobbying efforts or the Rental Car Defen claims were barred by the Noerr-Pennington doctrine and state-action doctrine, respectively, and 25 that such conduct could not have caused direct injury to Plaintiffs. (Mem. of Points & Authorities in Supp. -14.) In their March 11, 2008, Opposition to 26 acceptance of the new tourism assessment violated Section 1. (Opp. to Motions to Dismiss at 21 & 27 n.15.) 28 6
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1 notice of Plaintiffs counsel s publicly stated concern that the consequence of the enactment of 2 AB2592 is going to be an industry-wide price hike of 10%. (Ex. A.) 3 4 C. The New Allegations In The Amended Complaint Tell The Same Old Story.

Plaintiffs continue to allege that the Defendants engaged in two conspiracies: (1) an alleged

5 agreement to unbundle and separately state a 9% airport concession fee without reducing base rates 6 (Am. Compl. ¶ 5), and (2) an agreement to pass on the 2.5% tourism commission assessment (Am. 7 Compl. ¶¶ 3-4). Plaintiffs have added no factual allegations to their deficient initial complaint to 8 support their theory regarding the 9% airport concession fee. As to their theory regarding the 9 tourism commission assessment, Plaintiffs claim remains based solely on alleged opportunities to 10 conspire and parallel pricing behavior by the Rental Car Defendants coincident with the effective 11 date of AB2592. The hundreds of pages of documents produced by the Business, Transportation 12 and Housing Agency, which detail the implementation of AB2592, confirm that Plaintiffs 13 conspiracy theory is not plausible. While these documents reveal the communications necessary to 14 enact and implement the legislation, they do not contain a single document that implies the 15 formation or conduct of an illegal price-fixing conspiracy. 16 17 18 A. III. ARGUMENT

Plaintiffs Again Fail To State An Antitrust Claim Under Section 1.

As this Court previously noted, Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007),

19 provides the general rule for deciding motions to dismiss and the specific standard applicable to 20 Section 1 claims. See also Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1046-47 (9th Cir. 2008) 21 (providing general standard for ruling on a motion to dismiss and specific application in Section 1 22 context). As to the general rule, Twombly provides: 23 24 25 26 27 28 7
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While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 . . . (1986) (on a motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a factual allegation ).

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1 Twombly, 127 S. Ct. at 1964-65 (alteration in original) (citations omitted). Furthermore, the court 2 is not required to accept legal conclusions in the form of factual allegations if those conclusions 3 cannot reasonably be drawn from the facts alleged. Clegg v. Cult Awareness Network, 18 F.3d 4 752, 754-55 (9th Cir. 1994) (emphasis added). 5 In the specific context of a Section 1 claim based on allegations of parallel conduct, such as

6 this one, Twombly holds that a motion to dismiss should be granted unless plaintiffs allege 7 sufficient facts to make an inference of a conspiracy plausible. Twombly, 127 S. Ct. at 1964-65. 8 Allegations of opportunity to conspire are insufficient to permit an inference of conspiracy. E.g., 9 Twombly, 127 S. Ct. at 1971 & n.12; Shames, slip op. at 8-9. (See also Mem. of Points & 10 Authorities in Supp. of the Rental Car Defs Mot. to Dismiss at 11 n.6 (citing authorities).) Further, 11 a complaint fails to plead an illegal conspiracy claim if the allegations support a plausible, non12 conspiratorial explanation for the alleged agreement. See Twombly, 127 S. Ct. at 1972-73 ( In fact, 13 the complaint itself gives reasons to believe that the [Defendants] would see their best interests in 14 keeping to their old turf [i.e., engaging in parallel conduct]. ); see also In re Late Fee & Over15 Limit Fee Litig., 528 F. Supp. 2d 953, 963 n.8, 965 (N.D. Cal. 2007) (finding that a change in 16 regulations is a plausible and non-conspiratorial explanation for alleged parallel increases in credit 17 card fees). 18 In Kendall v. Visa U.S.A., the Ninth Circuit affirmed the dismissal of an amended complaint

19 (without leave to replead) for failure to satisfy the Twombly pleading standard because the 20 plaintiffs failed to plead evidentiary facts sufficient to establish a conspiracy. Kendall, 518 F.3d 21 at 1045. Although the Kendall plaintiffs included more allegations in their amended complaint 22 than in their earlier pleadings, the district court and Ninth Circuit both found that these allegations 23 amounted to nothing more than assertions that the defendants all charged the interchange fee that 24 had been set by the Visa and Mastercard Consortiums. The Ninth Circuit expressly held that these 25 allegations were insufficient to state a claim under Section 1 of the Sherman Act: Here, [plaintiffs] 26 pleaded only ultimate facts, such as conspiracy, and legal conclusions. They failed to plead the 27 necessary evidentiary facts to support those conclusions. Id. at 1047-48. 28 8
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1

As in Kendall, dismissal is warranted here because neither of Plaintiffs conspiracy theories

2 is supported with the necessary evidentiary facts to support those conclusions [of conspiracy]. Id. 3 First, Plaintiffs fail to set forth any additional allegations regarding the alleged agreement

4 among the Rental Car Defendants to unbundle the existing airport concession fees from their base 5 rates, pass through those fees to their customers, and not decrease their base rates. This failure is 6 7 8 Second, as in Kendall, Plaintiffs Amended Complaint contains more factual allegations .

9 than their initial complaint as to the tourism-assessment pass-through, but these additional factual 10 allegations do not make an inference of conspiracy any more plausible. The alleged parallel 11 conduct is coincident with the effective date of the new legislation for which each of the Rental Car 12 Defendants lobbied. In these circumstances, a Section 1 conspiracy claim has not been adequately 13 pled. See Twombly, 127 S. Ct. at 1971 ( [T]here is no reason to infer that the companies had 14 agreed among themselves to do what was only natural anyway . . . . ); Late Fee, 528 F. Supp. 2d at 15 963 n.8, 965; Shames, slip op. at 9 ( It is equally plausible that the rental car defendants actions 16 constituted identical, independent action motivated by economic self-interest. ) (quoting 17 Twombly, 127 S. Ct. at 1961). 18 19 20 1. Plaintiffs Fail To Allege Any Facts To Support A Conspiracy By The Rental Car Defendants To Pass On Airport Concession Fees Without Decreasing Base Rates.

The Amended Complaint does not add any new allegations

21 regarding the airport concession fees to alter what this Court already has determined: Plaintiffs 22 assertions are equally consistent with a wide swath of rational and competitive business strategy 23 unilaterally prompted by common perceptions of the market. 24 Twombly, 127 S. Ct. at 1964). 25 argued to the sponsor of AB2592 that the natural result of the bill (i.e., the resulting rational and 26 competitive business strategy) would be the same parallel conduct that Plaintiffs now allege to be 27 the result of a private price-fixing agreement among Defendants. (Ex. A (Fellmeth Letter).) 28 9
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1 Plaintiffs counsel did not suggest that there was any need for a conspiracy among the Defendants 2 to engage in such parallel conduct. (Id.) 3 The

4 concession fee theory are set forth in paragraphs 5 and 43. In each of these paragraphs, Plaintiffs 5 amplify their allegation, which was included in the original complaint, that the Rental Car 6 Defendants prices went up in California in January 2007, while they decreased elsewhere. (Am. 7 Compl. ¶¶ 5, 43.) That is, Plaintiffs add zero new allegations to their Amended Complaint to 8 support their airport concession fee theory. The fact remains that the alleged changes in California 9 rental prices (for which Plaintiffs admit the Rental Car Defendants compete with regard to base 10 rates) are fully explained by each Rental Car Defendant individually taking advantage of the 11 legislation for which it had lobbied. A change in legislation provides a non-conspiratorial 12 explanation for parallel pricing behavior by competitors. See Late Fee, 528 F. Supp. 2d at 963 n.8, 13 965; Shames, slip op. at 9 (noting that the common reaction of firms in a concentrated market that 14 recognize their shared economic interests not in itself unlawful ) (citing Brooke Group Ltd. v. 15 Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993). A non-conspiratorial explanation 16 for the complained of parallel conduct with respect to the airport concession fees thus continues to 17 be apparent from the face of the Amended Complaint: The Rental Car Defendants individually 18 took advantage of the change in law. Plaintiffs have provided no new allegations that provide any 19 basis for this Court to deviate from its prior ruling. As such, the Court should again hold that 20 Plaintiffs have failed to satisfy the Twombly pleading standard as to their airport concession fee 21 theory and it should be dismissed from this case. 22 23 24 The new allegations concerning an alleged agreement among the Rental Car Defendants to 2. -Through Of The Tourism Assessment Fail To Make A Conspiracy Plausible.

25 pass through the tourism commission assessment do not support a plausible claim for an illegal 26 conspiracy. None of the documents that Plaintiffs annex to their Amended Complaint is sufficient 27 28 10
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1 to alter this Court s conclusion that Plaintiffs theory, as set forth in the initial Complaint and 2 repeated in the Amended Complaint, fails to state a cognizable Section 1 claim. 3 4 5 As this Court previously found, the Rental Car Defendants independent but parallel (a) The Amended Complaint Continues To Allege Rational Parallel Conduct.

6 decisions to pass on the tourism assessment fee exemplify a rational and competitive business 7 strategy. Plaintiffs attempt to resurrect their tourism assessment fee theory by relying on 8 documents that relate to the formation, enactment and implementation of AB2592 fails to change 9 this conclusion. Plaintiffs rely on a Memorandum of Agreement between the CTTC and the 10 members of the rental car industry (Am. Compl. Ex. A), a referendum ballot (id. Ex. E) and other 11 documents allegedly related to those events (id. Exs. D, F, G) to support the conclusion that the 12 Defendants conspired to pass through the 2.5% tourism assessment fee to consumers, but their 13 reliance is misplaced. A plain reading of the documents in the context of Plaintiffs allegations 14 that the rental car companies lobbied for legislation to permit them to pass on the airport 15 concession fee to consumers 16 negates Plaintiffs interpretation of these documents.

First, the Memorandum of Agreement ( MOA ) (Am. Compl. Ex. A) between the CTTC

17 and the rental car industry was an integral part of the proposed referendum and was prescribed by 18 State law. The MOA concerns the potential assessment on the rental car industry, and how it 19 would be calculated and collected; it does not refer in any way to pass-through of the tourism 20 assessment to renters. 21 Second, the referendum ballot (Am. Compl. Ex. E) does not state that the Rental Car

22 Defendants, rental car companies generally, or even the CTTC have agreed that the tourism 23 commission assessment fee must be passed on. Rather, it states: [T]he Office of Tourism has 24 determined a percentage of Revenue to be collected by each passenger car rental company . . . . 25 (Am. Compl., Ex. E, at 24 (emphasis added).) The logical inference to be drawn from this 26 language is that the Office of Tourism based the ballot on California Civil Code Section 27 1936.01(a)(3), which defines 28 11 [t]ourism commission assessment as the charge collected by a
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1 rental company from a renter that has been established by the California Travel and Tourism 2 Commission pursuant to [the referendum procedure specified in] Section 13995.65 of the 3 Government Code. Cal. Civ. Code § 1936.01(a)(3) (West Supp. 2008). 4 Third, Plaintiffs reliance on selected pages from the CTTC website is unavailing. The

5 Rental Car Defendants do not control the CTTC website. Moreover, that the CTTC 6 describes the CTTC as industry-led (Am. Compl. Ex. C, at 19) does not permit an inference that 7 the Rental Car Defendants conspired to pass on the tourism assessment fee uniformly to their 8 customers. Indeed, this webpage does not even concern the rental car industry specifically, let 9 alone relate to the tourism assessment program. Moreover, the old CTTC webpage that allegedly 10 stated that [t]his assessment rate shall be passed through to the customer (Am. Compl. Ex. H, at 11 35) does not say anything about any agreement among the Rental Car Defendants. Construed most 12 favorably to Plaintiffs, this suggests at most a reliance on California Civil Code Section 13 1936.01(a)(3) 14 Cal. Civ. Code § 1936.01(a)(3) (West Supp. 2008), without noting that California Civil Code 15 Section 1936.01(b)(2) makes this pass through permissive, rather than mandatory. 16 Fourth, Plaintiffs cannot save their Section 1 claim by mischaracterizing an e-mail ,

17 exchange between Denise McNulty, a licensee of Defendant Vanguard Car Rental USA Inc., and 18 Terry Toohey, an employee of the Office of Tourism. (See Am. Compl. Ex. I.) This e-mail 19 exchange does not demonstrate an agreement among the Rental Car Defendants to pass on the 20 tourism assessment. Plainly, it neither references nor implies any agreement among rental car 21 companies. Rather, this e-mail reflects individual concern that each rental car

22 company subject to AB2592 should charge and pay the tourism assessment to the CTTC. 23 Otherwise, rental car companies that collect and pay the tourism assessment would be 24 disadvantaged, as they would be subject to a 2.5% assessment to which other rental car companies 25 were not subject and their rates would appear higher. 26 27 To 28 12 (Am. Compl. Ex. B, at 17), does not
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1 2 fixing conspiracy. (Am. Compl. ¶ 41.) Rather, this agenda reflects a concern by the CTTC that

-

3 AB2592 be properly implemented (especially since the legislation had just gone into effect), so that 4 the rental car companies subject to AB2592 would be competing on a level playing field. 5 In sum, Plaintiffs seek unreasonable inferences from these factual allegations. By their

6 very terms these new factual allegations do not support an inference of an agreement in violation of 7 Section 1. Even on a motion to dismiss, the Court need not legal conclusions cast in the

8 form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. 9 Clegg, 18 F.3d at 754-55. 10 11 B. Plaintiffs Fail To State Any Claim Under California Law.

Plaintiffs purported state law claims are again based on only three allegations: (1) that the

12 Rental Car Defendants allegedly engaged in conduct that violates the Sherman Act; (2) that the 13 Rental Car Defendants supposedly collected more money in CTTC assessments than they passed 14 on to the CTTC; and (3) that the Rental Car Defendants somehow improperly described the CTTC 15 assessment. None of these allegations states a claim under California s Unfair Competition Law 16 (the UCL ), Cal. Bus. & Prof. Code §§ 17200 et seq., Consumer Legal Remedies Act (the 17 CLRA ), Cal. Civ. Code §§ 1750 et seq., or False Advertising Law ( FAL ), Cal. Bus. & Prof.

18 Code §§ 17500 et seq. To the extent that this Court finds that it has jurisdiction to entertain 19 Plaintiffs purported state law claims, this Court should dismiss them for the reasons discussed 20 below.3 21 22 23 24 25 26
3

27 See Shames, slip op. at 9. 28 13
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1. 1 2 3

Plaintiffs Fail To State A Claim Under Either The UCL Or The FAL. (a) The Government Code Expressly Immunizes The Rental Car Defendants Alleged Conduct.

Plaintiffs purported UCL claim is barred by Section 13995.90 of the California

4 Government Code, which provides that where a defendant complies with the California Tourism 5 and Marketing Act (the CTMA ), et seq., which was amended by AB

6 2592, that defendant is immunized from any liability that might otherwise be based upon 7 application of antitrust laws. Section 13995.90 provides: 8 9 10 11 12 13 14 In any civil or criminal action or proceeding for violation of any of the following, proof that the act that is complained of was done in compliance with the provisions of [the CTMA] is a complete defense to the action or proceeding: (a) The Cartwright Act, Chapter 2 . . . (b) The Unfair Practices Act, Chapter 4 . . . (c) Any rule of statutory or common law against monopolies or combinations in restraint of trade.

15 Cal. Gov t Code § 13995.90 (West 2005) (emphasis added).4 16 Here, Plaintiffs expressly allege that the Rental Car Defendants complied with the CTMA.

17 For example, Plaintiffs allege that the Rental Car Defendants pass on the CTTC assessment to 18 customers, which the CTMA expressly allows. (Am. Compl. ¶¶ 4, 38.) See also Cal. Gov t Code 19 § 13995.65(f) (West Supp. 2008). Since Plaintiffs allege facts sufficient to show compliance with 20 the CTMA, no antitrust claim may lie. See Cal. Gov t Code § 13995.90 (West 2005). 21 Plaintiffs may not circumvent the immunity provided by Section 13995.90 by attempting to

22 restate their claim as one under the UCL. See, e.g., Cel-Tech Comm ncs, Inc. v. L.A. Cellular Tel. 23 Co., 20 Cal. 4th 163, 182 (1999) ( A plaintiff may . . . not plead around an absolute bar to relief 24 simply by recasting the cause of action as one for unfair competition. ) (citation omitted). Since 25 26
4

27 Dismiss at 18.) 28 14

(Opp. to Motions to
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1 the purported antitrust claim is barred by Section 13995.90, Plaintiffs purported UCL claim also is 2 barred. 3 4 5 This Court also may dismiss Plaintiffs UCL claim on the independent and alternative (b) Plaintiffs Do Not And Cannot Allege Facts Sufficient To State A UCL Or FAL Claim.

6 ground that Plaintiffs do not and cannot allege that they have a right to relief under any prong of 7 Section 17200 of the UCL, which defines unfair competition to mean any unlawful, unfair or 8 fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any 9 act prohibited by [the FAL]. Cal. Bus. & Prof. Code § 17200 (West 1997). 10 11 12 The only laws that Plaintiffs allege the Rental Car Defendants violated are Section 1 of the (i) Plaintiffs Do Not And Cannot Allege Facts Sufficient To Show That Defendants Acted Unlawfully.

13 Sherman Act, the CLRA, and the FAL. Plaintiffs purported Sherman Act claim fails for the 14 reasons discussed above; Plaintiffs purported CLRA and FAL claims fail for the reasons discussed 15 below. Since these purported claims fail, Plaintiffs claim of UCL unlawfulness fails as well. See, 16 e.g., New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1111-12 (C.D. Cal. 2004); Chavez v. 17 Whirlpool Corp., 93 Cal. App. 4th 363, 373-75 (2001). 18 Moreover, Plaintiffs also cannot state a claim of UCL unlawfulness based on their vague

19 and conclusory allegation (made on information and belief) that [t]he CTTC fee monies collected 20 exceed the amounts contributed to the CTTC budget by the Rental Car Defendants, in violation of 21 California law. (Am. Compl. ¶ 56(B).) A plaintiff alleging a UCL violation must state with 22 reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. 23 Maly s of Cal., Inc., 14 Cal. App. 4th 612, 619 (1993); see also Multimedia Patent Trust v. 24 Microsoft Corp., 525 F. Supp. 2d 1200, 1217-18 (S.D. Cal. 2007) (applying this standard). Here, 25 as in Khoury, Plaintiffs Amended Complaint identifies no particular section of the statutory 26 scheme which was violated and fails to describe with any reasonable particularity the facts 27 supporting violation. Khoury, 14 Cal. App. 4th at 619. Indeed, Plaintiffs fail even to identify 28 15
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1 which statutory scheme was allegedly violated, much less how the Rental Car Defendants
5 2 purportedly violated that unidentified statutory scheme. Plaintiffs therefore fail to state a claim.

3 4 5

(ii)

Plaintiffs Do Not And Cannot Allege Facts Sufficient To Show That The Rental Car Defendants Either Acted Fraudulently Or Violated The FAL.

Plaintiffs fail to state a claim under either the UCL fraud prong or the FAL with their vague

6 and conclusory allegation that Defendants misrepresent to consumers that the 2.5% surcharge on 7 car rentals is owed by consumers to the CTTC when the only assessment which is owed is owed 8 by the Defendants. (Am. Compl. ¶ 56(B).) Among other things, this allegation ignores that 9 California law expressly defines the [t]ourism commission assessment as the charge collected

10 by a rental company from a renter that has been established by the California Travel and Tourism 11 Commission pursuant to [the referendum procedure specified in] Section 13995.65 of the 12 Government Code. Cal. Civ. Code § 1936.01(a)(3) (West Supp. 2008). Plaintiffs therefore fail to 13 allege any misrepresentation as a matter of law. 14 Furthermore, even if Plaintiffs had alleged a misrepresentation (which they have not), they

15 would still fail to allege facts sufficient to show that they ha[ve] suffered injury in fact and ha[ve] 16 lost money or property as a result of [such] unfair competition, as both the UCL and the FAL 17 require. Cal. Bus. & Prof. Code § 17204 (West Supp. 2008) (UCL); accord id. § 17535 (FAL). 18 The California Court of Appeal has made it clear that with the passage of Proposition 64, the UCL 19 now imposes a causation requirement, which requires a showing of a causal connection or 20 reliance on the alleged misrepresentation. Hall v. Time Inc., 158 Cal. App. 4th 847, 855 (2008). 21 The California Court of Appeal has further made it clear that [i]n approving Proposition 64, the 22 23 Furthermore, Plaintiffs do not dispute that they did not rent from Defendants Hertz, Avis, Dollar Thrifty, Fox, or Coast at a California situs airport after January 1, 2007. Since Plaintiffs did 24 not rent from these Defendants, Plaintiffs have no standing to pursue a UCL claim against them. Buckland v. Threshold Enters., Ltd., 155 Cal. App. 4th 798, 812 (2007) (stating that the purpose of 25 ; see also Lee v. 26 , 260 F.3d 997,1002 (9th Cir. 2001) (holding that there was no standing to assert did not buy any policy from ANTEX and so did not suffer 27 any injury due to ANTEX s conduct 28 16
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1 voters made identical findings regarding the UCL and FAL, and amended Business & Professions 2 Code section 17535 to impose the standing requirements and limits placed upon UCL actions. 3 Buckland v. Threshold Enters., Ltd., 155 Cal. App. 4th 798, 819 (2007). Here, Plaintiffs do not and 4 cannot meet these requirements, because they do not and cannot allege that they entered into their 5 rental agreements in reliance on Defendants descriptions of the CTTC assessment. 6 7 8 9 Other than the purported statutory violations and the purported misrepresentations and overcharges, Plaintiffs allege no conduct that could somehow be unfair. Consequently, this (c) Plaintiffs Do Not And Cannot Allege Facts Sufficient To Show That The Rental Car Defendants Acted Unfairly.

10 Court should determine that Plaintiff do not and cannot state a claim under the UCL s unfairness 11 prong. 12 First, Plaintiffs inability to plead a Sherman Act claim precludes any finding that the

13 conduct alleged to violate the Sherman Act is somehow unfair under the UCL. Belton v. 14 Comcast Cable Holdings, LLC, 151 Cal. App. 4th 1224, 1240 (2007). 15 16 Second, Plaintiffs failure to plead particular facts sufficient to establish either the alleged overcharges, or reliance on alleged material misrepresentations, precludes them from stating a

17 UCL claim based on either allegation. See Khoury, 14 Cal. App. 4th at 619 (particularity); Hall, 18 158 Cal. App. 4th at 855 (reliance). 19 Third, in alleging that the Rental Car Defendants conduct was somehow unfair, Plaintiffs

20 seek to apply a standard that was rejected by the California Supreme Court. In opposing the Rental 21 Car Defendants Motion to Dismiss the original Complaint, Plaintiffs asked this Court to evaluate 22 whether the Rental Car Defendants conduct was generically unfair. (Opp. to Motions to

23 Dismiss at 22.) The California Supreme Court has made it clear, however, that [c]ourts may not 24 simply impose their own notions of the day as to what is fair or unfair. Cel-Tech Comm ncs, 20 25 Cal. 4th at 182. In asking this Court to evaluate whether the Rental Car Defendants alleged 26 conduct was somehow generically unfair, 27 claim to some 28 17 Plaintiffs also fail to tether their purported unfairness as the UCL requires.
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1 Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917, 940 (2003) (citation omitted). This Court 2 should accordingly determine that Plaintiffs do not and cannot state a claim of UCL unfairness. 3 4 2. Plaintiffs Fail To State A Claim Under The CLRA.

Plaintiffs purported CLRA claim is based upon the same alleged conduct that Plaintiffs i.e., Plaintiffs allegations that the Rental Car

5 claim is deceptive under the UCL and FAL

6 Defendants somehow described the CTTC assessment in misleading ways. (Am. Compl. ¶¶
6 7 56(B), 62.) These allegations do not and cannot state a CLRA claim.

8 9 10

(a)

Plaintiffs Do Not And Cannot Allege Any Actionable Misrepresentation.

Plaintiffs incorrectly allege that the Rental Car Defendants have somehow committed a

11 misrepresentation by suggesting that the CTTC assessment is imposed by a governmental entity 12 and that the rental car company has no discretion with respect to the charge and by describing the 13 CTTC assessment as, among other things, a Ca Tourism Commission Assessment and a 14 California Tourism Commission Assessment. (Am. Compl. ¶ 62.) According to Plaintiffs, these

15 suggestions and descriptions are somehow unfair under Section 1770(a)(14) of the California Civil 16 Code, because they supposedly [r]epresent[] that a transaction confers or involves rights remedies, 17 or obligations which it does not have or involve, or which are prohibited by law. Cal. Civ. Code § 18 1770(a)(14) (West 2008). 19 This Court should rule that Defendants have made no actionable misrepresentations as a as

20 matter of law. Again, California law expressly defines the [t]ourism commission assessment 21

the charge collected by a rental company from a renter that has been established by the California

22 Travel and Tourism Commission. Cal. Civ. Code § 1936.01(a)(3) (West Supp. 2008). The Rental 23 Car Defendants alleged descriptions of the charge at issue are consistent with this statutory 24 definition. Indeed, Plaintiffs themselves describe the charge at issue as the CTTC assessment, 25
6 T 26 or services to any consumer

result[] in the sale or lease of goods Ting

he CLRA is . . . inapplicable to rental agreements 27 v. AT&T, 319 F.3d 1126, 1148 (9th Cir. 2003). 28 18

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1 (Am. Compl. ¶ 62), demonstrating that they themselves recognize that this and similar descriptions 2 are not misleading or deceptive as a matter of law. 3 4 5 Even if Plaintiffs had alleged some misrepresentation (which they have not), they would (b) Plaintiffs Do Not And Cannot Allege Reliance On A Material Misrepresentation.

6 still fail to state a CLRA claim. California requires a plaintiff suing under the CLRA for 7 misrepresentation . . . to plead and prove she relied on a material misrepresentation. Cattie v. 8 Wal-Mart Stores, Inc., 504 F. Supp. 2d 939, 946 (S.D. Cal. 2007) (emphasis added). Here, 9 Plaintiffs do not allege that they would have behaved any differently if the CTTC assessment had 10 been described differently. As such, Plaintiffs fail to state a claim under the CLRA. See Stickrath 11 v. Globalstar, Inc., 527 F. Supp. 2d 992, 1000 (N.D. Cal. 2007) (finding materiality not adequately 12 alleged where plaintiffs failed to allege that, had the omitted information been disclosed, [they] 13 would have been aware of it and behaved differently 14 15 16 17 Twombly for a Sherman Act claim. The Court provided the Plaintiffs a second chance to remedy 18 the defects in their original Complaint, and the Plaintiffs failed to do so. In fact, as to their airport 19 concession fee theory, they did not even try. Having been given a second chance to plead a 20 cognizable antitrust or state-law claim, and having failed, for the reasons foregoing, P 21 Amended Complaint should be dismissed with prejudice. 22 23 24 25 26 Since Plaintiffs did not rent from Defendants Hertz, Avis, Dollar Thrifty, Fox, or Coast at a California situs airport after January 1, 2007, Plaintiffs also lack standing to pursue a CLRA 27 claim against them. See Cattie, 504 F. Supp. 2d at 943-44. 28 19
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7

(alteration in original) (citation omitted)).7

IV.

CONCLUSION duct and an opportunity to conspire

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1 Dated: May 29, 2008 2 FOLGER LEVIN & KAHN LLP 3 4 By: 5 6 7 8 9 10 11 12 Counsel for Defendants 13 ENTERPRISE RENT-A-CAR COMPANY and VANGUARD CAR RENTAL USA, 14 INC. 15 16 JONES DAY 17 18 19 20 21 22 Counsel for Defendant 23 DOLLAR THRIFTY AUTOMOTIVE GROUP, INC. 24 25 26 27 28 By: s/ Jeffrey A.LeVee _______________ Jeffrey A. LeVee (Cal. Bar No. 125863) 555 South Flower Street Fiftieth Floor Los Angeles, California 90071 Tel.: (213) 489-3939 Embarcadero Center West 275 Battery Street, 23rd Floor San Francisco, California 94111 Tel.: (415) 986-2800 Jennifer S. Romano (Cal. Bar No. 195953) 1900 Avenue of the Stars 28th Floor Los Angeles, California 90067 Tel.: (310) 556-3700 Gregory D. Call (Cal. Bar No. 120483) Beatrice B. Nguyen (Cal. Bar No. 172961)

Respectfully submitted, SKADDEN ARPS SLATE MEAGHER & FLOM, LLP By: s/ Michael L. Weiner _______________ Michael L. Weiner (Pro hac vice) Four Times Square New York, New York 10036 Tel.: (212) 735-2632 Douglas B. Adler (Cal. Bar No. 130749) 300 South Grand Avenue Suite 3400 Los Angeles, California 90071 Tel.: (213) 687-5120 Sara L. Bensley (Pro hac vice) 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 Tel.: (202) 371-7000 Counsel for Defendant AVIS BUDGET GROUP, INC.

LONG, WILLIAMSON AND DELIS

By: _________________________________ T. Patrick Long (Cal. Bar No. 182394) 400 N. Tustin Ave. Suite 370 Santa Ana, California 92705 Tel: (714) 668-1400 Counsel for Defendant COAST LEASING CORP. dba ADVANTAGE RENT A CAR, erroneously sued and served herein as Coast Leasing Corp., a Texas corporation

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1 2 O MELVENY & MYERS LLP 3 4 5 6 7 8 9 10 11 12 Gerald A. Stein (Pro hac vice) 13 14 15 Times Square Tower Seven Times Square New York, New York 10036 Tel.: (212) 326-2000 Embarcadero Center West 275 Battery Street Suite 2600 San Francisco, California 94111 Tel.: (415) 984-8700 By: s/Richard G. Parker ______________ Richard G. Parker (Cal. Bar No. 62356) 1625 Eye Street, NW Washington, D.C. 20006 Tel.: (202) 383-5300 Michael F. Tubach (Cal. Bar No. 145955) Thomas P. Brown (Cal. Bar No. 182916) By: _________________________________ John H. Stephens (Cal. Bar No. 82971) 945 Fourth Avenue San Diego, California 92101 Tel: (619) 233-1888 Counsel for Defendant FOX RENT A CAR D/B/A PAYLESS RENTA-CAR WERTZ McDADE WALLACE MOOT & BROWER

16 Counsel for Defendant THE HERTZ CORPORATION 17 18 19 20 21 22 23 24 25 26 27 28 21
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1

ATTESTATION

2 I hereby attest that I have authorization for any signatures indicat 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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/ ) within this efiled document. s/ Michael L. Weiner Michael L. Weiner (Pro hac vice) Attorney for Defendant Avis Budget Group, Inc. E-mail: [email protected]