NOTICE OF ELECTRONIC FILINGsksettlement.noticeclass.com/Content/documents/... · AlaFile E-Notice To: KNIGHT GRIFFIN LANE [email protected] 06-CV-2010-900021.00 NOTICE OF ELECTRONIC

AlaFile E-Notice

To: KNIGHT GRIFFIN LANE

[email protected]

06-CV-2010-900021.00

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF BARBOUR COUNTY, ALABAMA

The following complaint was FILED on 2/3/2015 3:30:18 PM

HILTON COOPER CONTRACTING, INC. ET AL V. SAFETY-KLEEN SYSTEMS, INC. ET

06-CV-2010-900021.00

Notice Date: 2/3/2015 3:30:18 PM

DAVID NIX

CIRCUIT COURT CLERK

BARBOUR COUNTY, ALABAMA

CLAYTON, AL 36016

334-775-8366

[email protected]

P.O. BOX 219

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IN THE CIRCUIT COURT OF BARBOUR COUNTY, ALABAMA

CLAYTON DIVISION

HILTON COOPER CONTRACTING, INC.; JRD CONTRACTING, INC.; HARRINGTON ENTERPRISES d/b/a WAYNE CROY CAR CENTER; OTAY HYDRAULICS, INC.; EUFAULA MARINE & POWER EQUIPMENT, LLC; ROGER MILLER d/b/a ROGER’S AUTO SERVICE; AGRICON EQUIPMENT COMPANY, LLC; and JOE HOLLAND CHEVROLET,

Plaintiffs v. SAFETY-KLEEN SYSTEMS, INC.; SAFETY-KLEEN, INC.; and CLEAN HARBORS, INC., Defendants.

)))))))))))))))))))

CIVIL ACTION NO. CV-2010-900021

PLAINTIFFS’ AMENDED CLASS ACTION COMPLAINT

COMES NOW the Plaintiffs, Hilton Cooper Contracting, Inc., JRD Contracting, Inc.,

Harrington Enterprises, Inc., d/b/a Wayne Croy Car Center, Otay Hydraulics, Inc., Eufaula

Marine & Power Equipment, LLC, Roger Miller d/b/a Roger’s Auto Service, Agricon

Equipment Company, LLC, and Joe Holland Chevrolet (collectively hereinafter “Plaintiffs”),

individually and on behalf of a class of all persons or entities in Alabama, California, Missouri,

Florida, Arkansas and West Virginia who are similarly situated, file this Amended and Restated

Class Action Complaint against the Defendants, Safety-Kleen Systems, Inc., Safety-Kleen, Inc.,

and Clean Harbors, Inc. (collectively hereinafter “Safety-Kleen” or “Defendants”) and other

ELECTRONICALLY FILED2/3/2015 3:30 PM

06-CV-2010-900021.00CIRCUIT COURT OF

BARBOUR COUNTY, ALABAMADAVID NIX, CLERK

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fictitious parties as set out herein. However, allegations of wrongdoing as set out herein against

Defendant Clean Harbors, Inc. are only made with regard to Safety-Kleen Systems, Inc. and

Safety-Kleen, Inc. customers. No allegations of wrongdoing are made on behalf of direct

customers of Defendant Clean Harbors, Inc. In support thereof, Plaintiffs state the following:

NATURE OF THE CASE

1. Through a fraudulent and unlawful course of conduct, Defendants have charged

and collected improper fees from Plaintiffs and Defendants’ other Alabama, Missouri,

California, Florida, Arkansas, and West Virginia customers. These fees are fraudulent,

excessive, unnecessary, mischaracterized, unconscionable, and misleading. Further, by charging

and collecting the fees, Defendants have violated the express terms of the pre-printed, form

contract which exists between Defendants and many of their customers.

2. Defendants are in the business of leasing parts cleaning equipment, collecting and

refining used oil, and providing industrial waste disposal services to its customers, including

Plaintiffs. Defendants collect this used oil from their customers, re-refine the oil, and sell it at a

profit. For this service, Defendants agree to pay Plaintiffs and their other customers a certain

price per gallon for the used oil. Defendants also sell certain cleaning agents and solvents.

3. Often, Defendants enter into written agreements for these services. These

agreements are uniform and effectively identical in that they contain identical relevant terms and

conditions. However, Defendants also provide these services to customers without entering into

a written agreement.

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4. Defendants charge and collect misrepresented and unlawful fees, including “Fuel

Surcharges,” “Extended Service Area Fees (‘ESA’ fees),” and “Late Payment Fees.” These fees

decrease the rightful amount Defendants owe their customers for the used oil Defendants

purchase, and inflate the rightful amount Defendants charge their customers for the products

Defendants sell. Defendants have breached the contracts they have with their customers by

charging and collecting the unlawful fees.

5. Further, the terms Defendants use for these fees are misrepresentations. The

“Fuel Surcharge” is not a surcharge and is not related to Defendants’ fuel costs, to Defendants’

increased fuel costs, or to any fuel costs Defendants may incur in servicing Plaintiffs or

Defendants’ other customers. Similarly, the “Extended Service Area Fees” are not related to any

costs Defendants may incur in servicing Plaintiffs or Defendants other customers.

6. These fees are simply misrepresented profit generators which Defendants devised,

misnamed, and charged to increase their profit at their customers’ expense. The only reason

Defendants named these fees “Fuel Surcharge” and “Extended Service Area Fee”—rather than

“Profit Maximizing Fee” for example—is to cause the fees to appear to be legitimate charges

when in fact this is not the case.

7. Additionally, Defendants charge the “late payment fee” in the standard amount of

$25, which is far in excess of the lesser of (i) 1.5% per month or (ii) maximum rate allowed by

law. The amount of the “late payment fee” constitutes an unreasonable liquidated damages

amount or penalty. Additionally, the “late payment fee” is unfair and unlawful. The amount of

this fee, $25, is patently unreasonable given the amount that is known to be owed at the time the

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contracts are executed or the services are begun. Defendants intend and use the late fee as a

punitive profit-center, without regard to any additional costs (to the extent they exist) they incur

when processing late payment. The late fee is also substantively and procedurally

unconscionable, given that the contract is one of adhesion, and Defendants have a monopoly on

bargaining power.

8. By charging and collecting the unreasonable and excessive fees, Defendants have

engaged in unlawful, unfair, and deceptive business practices in violation of: (1) California’s

Unfair Competition Law (Cal. Bus. & Prof. § 17200, et seq.) and made false and misleading

statements in violation of California’s False Advertising Law (Cal. Bus. & Prof. § 17500, et

seq.); (2) Florida’s Deceptive and Unfair Trade Practices Act “FDUTPA” (Fla. Stat. § 501.201,

et seq.); (3) Arkansas’ Deceptive Trade Practices Act “ADTPA”, Ark. Code Ann § 4-88-101, et

seq.); and (4) West Virginia’s Consumer Credit and Protection Act, W. Va. Code, § 46A-6-104,

et seq.) For example, the “fuel surcharge” is not what Defendants—by using this term—purports

it to be. The “fuel surcharge” is neither reasonable nor is it a “surcharge.” This fee further has

no relation to the Defendant’s fuel costs or to any purported increase in those costs. Rather, it is

a profit-generating device Defendants created and charged solely to increase their revenue. The

only reason Defendants calls this fee a “fuel surcharge” rather than an “extra profit fee” is to

deceive their customers into believing that this is a legitimate, lawful charge rationally related to

Defendants’ fuel costs, when, in fact, it is not. Defendants have made a host of other

misrepresentations, and suppressed material information, regarding the fuel surcharge as well.

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9. Also, to ensure that Plaintiffs and Defendants’ other customers pay these

misrepresented and unlawful fees without complaint, Defendants engaged in a fraudulent scheme

designed to further falsely legitimize the fees in the eyes of Plaintiffs and Defendants’ other

customers. In furtherance of this scheme, Defendants made additional misrepresentations on

mailings, invoices, and on Defendants’ websites. Defendants’ fraudulent conduct is set forth in

detail below.

10. Plaintiffs and members of the class have been damaged by Defendants’ wrongful

conduct by paying the unlawful fees. Plaintiffs bring this action to recover the fees paid or

charged and to end Defendants’ unlawful practices.

JURISDICTION AND VENUE

11. This Court has jurisdiction over this action. Defendants do business in the State

of Alabama and have received and continue to receive substantial revenue and profits from the

improper fees and charges in the State of Alabama. Defendants transact business in Barbour

County, Alabama and have received and continue to receive substantial revenue and profits from

the improper fees and charges in the Clayton Division of Barbour County, Alabama and have

further made material omissions and misrepresentations, as well as engaged in other misconduct

in the Clayton Division of Barbour County, Alabama. Defendant Clean Harbors, Inc. is liable

for the actions and/or inactions of Defendants Safety-Kleen Systems, Inc. and Safety-Kleen, Inc.

with regard to Safety-Kleen Systems, Inc. and Safety-Kleen, Inc.’s customers only.

12. Venue in this case is proper in the Clayton Division of Barbour County, Alabama,

in that a substantial portion of the conduct which forms the basis of this action occurred in the

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Clayton Division of Barbour County, Alabama, and named Plaintiff Hilton Cooper Contracting,

Inc. is located in the Clayton Division of Barbour County, Alabama.

PARTIES

13. Plaintiff Hilton Cooper Contracting, Inc. is an Alabama corporation with its

principal place of business in the Clayton Division of Barbour County, Alabama. Plaintiff JRD

Contracting Inc. is an Alabama corporation with its principal place of business in Wilcox

County, Alabama. Plaintiff Harrington Enterprises Inc. is a Missouri corporation doing business

as Wayne Croy Car Center, which has its principal place of business in Clay County, Missouri.

Plaintiff Otay Hydraulics, Inc. is a California corporation with its principal place of business in

San Diego, California. Plaintiff Eufaula Marine and Power Equipment, LLC is an Alabama

corporation with its principal place of business in Eufaula, Barbour County, Alabama. Plaintiff

Roger Miller is a resident of Eufaula, Barbour County, Alabama who does business as Roger’s

Auto Repair, which is also located in Eufaula, Barbour County, Alabama. Plaintiff Agricon

Equipment Company, LLC is a Florida corporation with its principal place of business in Ocala,

Florida. Plaintiff Joe Holland Chevrolet is a West Virginia corporation with its principal place of

business in Charleston, West Virginia.

14. Defendant Safety-Kleen Systems, Inc. is a Wisconsin corporation authorized to do

business in Alabama with its principal place of business at 5400 Legacy Drive, Plano, Texas

75024. It may be served via its registered agent CT Corporation System, 2 North Jackson Street,

Suite 605, Montgomery, Alabama 36104. Defendant Safety-Kleen, Inc. is a Delaware

corporation authorized to do business in Alabama with its principal place of business at 1209

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Orange Street, Wilmington, Delaware 19801. It may be served via its registered agent CT

Corporation System, 2 North Jackson Street, Suite 605, Montgomery, Alabama 36104.

Defendant Clean Harbors, Inc. is the parent company of Safety-Kleen Systems, Inc. and Safety-

Kleen, Inc. with its principal place of business at 42 Longwater Drive, Norwell, Massachusetts,

02061. It may be served via its registered agent CT Corporation System, 2 North Jackson Street,

Suite 605, Montgomery, Alabama 36104.

15. Defendants fictitiously described as “A,” “B,” and “C,” are otherwise unknown to

Plaintiffs at this time, or if their identities are known to Plaintiffs at this time, their identity as

proper party Defendants is not known to Plaintiffs at this time, but their true and correct names

will be substituted by amendment when the aforesaid information is ascertained. It is alleged

that all Defendants are responsible for the actions or inactions of the other Defendants and the

above fictitious parties under the doctrines of respondeat superior, joint and several liability,

conspiracy, agency and/or other doctrines. It is further alleged that the fictitious Defendants are

responsible for the actions or inactions of all Defendants and their agents and employees under

the doctrines of respondeat superior, joint and several liability, conspiracy, agency and/or other

doctrines.

16. Defendants do business in the Clayton Division of Barbour County, Alabama and

acted in concert with each other and with other, separate entities and persons to market and

collect money from the improper fees and charges through a coordinated inter-corporate

relationship. Defendants and these entities and persons were and are active participants in the

misleading, unlawful, fraudulent, improper, and unconscionable practices described herein.

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17. At all relevant times, Defendants were agents, representatives and/or employers of

fictitious Defendants. In committing the acts alleged herein, Defendants acted within the scope

of their agency and/or employment and were acting with the consent, permission, authorization

and knowledge and perpetrated and/or conspired with and/or aided and abetted the unlawful,

improper, and fraudulent acts described herein.

18. Plaintiffs bring this action as an Alabama class action pursuant to Rule 23 of the

Alabama Rules of Civil Procedure. This class is more specifically defined as follows:

“All customers of Safety-Kleen Systems, Inc. and Safety-Kleen, Inc. with locations in Alabama, Missouri, California, Florida, Arkansas, and West Virginia who paid ‘Fuel Surcharges’, ‘Extended Service Area Fees,’ and/or ‘Late Payment Fees,’ (however titled) to Safety-Kleen Systems, Inc. and/or Safety-Kleen, Inc., and/or whose total amount owed by Safety-Kleen Systems, Inc. and/or Safety-Kleen, Inc. was decreased by amounts attributable to ‘Fuel Surcharges,’ ‘Extended Service Area Fees,’ and/or ‘Late Payment Fees,’ (however titled):

Alabama Class Members: (October 20, 2004 - September 1, 2014); Missouri Class Members: (December 31, 2007 - September 1, 2014);

California Class Members: (June 26, 2008 - September 1, 2014);

Florida Class Members:

(1) If a written contract exists (September 1, 2009 - September 1, 2014); (2) If no written contract exists (September 1, 2010 - September 1, 2014);

Arkansas Class Members:

(1) If a written contract exists (September 1, 2009 - September 1, 2014); (2) If no written contract exits (September 1, 2011 - September 1, 2014);

West Virginia Class Members:

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(1) If a written contract exists (September 1, 2004 - September 1, 2014); (2) If no written contract exists (September 1, 2009 - September 1, 2014).”

19. Plaintiffs maintain the right to create additional subclasses or classes, if necessary,

and to revise these definitions to maintain a cohesive class that does not require individual

inquiry to determine liability. Plaintiffs bring no claims pursuant to any federal law and further

bring no claims which would give rise to federal jurisdiction.

20. Excluded from the proposed class are national or regional accounts,

municipalities, those customers currently in bankruptcy or which filed bankruptcy subsequent to

payment of a fee covered by this agreement, those customers whose obligations have been

discharged in bankruptcy, governmental agencies, entities, or judicial officers, Defendants, any

affiliate or parent of Defendants and any agents, employees, officers and/or directors of

Defendants or any other such entities and their representatives, heirs, successor and/or assigns,

and any person or entity which properly executes and submits a timely request for exclusion

from the Class.

21. The exact number of class members is unknown to Plaintiffs at this time, but such

information can be ascertained through appropriate discovery, specifically from records

maintained by Defendants and their agents.

EXISTENCE AND PREDOMINANCE OF COMMON QUESTIONS OF LAW AND FACT

22. There are questions of law and fact common and of general interest to the class.

These common questions of law and fact predominate over any questions affecting only

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individual members of the class. Said common questions include, but are not limited to, the

following:

a. Whether Defendants engaged in a widespread and systematic practice of charging

excessive amounts for the fees at issue in this case.

b. Whether the “fuel surcharge” is reasonable and/or in fact, a surcharge.

c. Whether the “fuel surcharge” is excessive in relation to Defendant’s purported

fuel costs.

d. Whether the fees at issue in this case are designed as profit enhancers for

Defendants.

e. Whether the charging of the fees at issue in this case constitute breaches of

contract.

f. Whether the charging of the fees at issue in this case is inconsistent with

applicable law.

g. Whether it would be inequitable and unjust for Defendants to retain the monies

received from the wrongful and excessive fees at issue in this case.

h. Whether Defendants conspired to commit the wrongful acts alleged herein.

i. Whether Plaintiffs and class members are entitled to class relief as requested

herein.

j. Whether the fees at issue herein are excessive under the terms of the agreement

and/or applicable law.

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k. Whether Defendants assessed improper and excessive “Fuel Surcharges,”

“Extended Service Area Fees,” “Late Payment Fees,” and/or other similar fees.

l. Whether the “Fuel Surcharges” and the “Extended Service Area Fees” are

charged for the same purported costs which Defendants include in other charges.

m. Whether Defendants have been unjustly enriched by assessing and collecting the

fees at issue in this case.

n. Whether Defendants have ceased charging the improper and excessive fees at

issue in this case.

o. Whether an injunction is necessary to keep Defendants from charging the

unnecessary and excessive fees in this case.

p. Whether Defendants have engaged in unfair business practices by charging and

collecting the “fuel surcharge.”

q. Whether Defendants engaged in unlawful business practices by charging and

collecting the “fuel surcharge.”

r. Whether Defendants have engaged in deceptive business practices by charging

and collecting the “fuel surcharge.”

s. Whether Defendants have made false and misleading statements regarding the

fuel surcharge and/or its fuel costs.

t. Whether the “fuel surcharge” bears any relation to Defendants’ cost of fuel.

u. Whether the improper fees charged by Defendants are rationally related to any

cost incurred by Defendants.

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v. Whether the fees at issue in this case are unconscionable.

w. Whether Defendants practice of charging and collecting the fees at issue in this

case is consistent with the terms and language of the customer agreements.

x. Whether the late payment fee Defendants charge is unreasonable and excessive.

y. Whether Defendants have engaged in unfair and deceptive conduct by charging

the late payment fee.

z. Whether Defendants have made false and misleading statements regarding the late

payment fee.

aa. Whether the late fee is procedurally and/or substantively unconscionable.

bb. Whether the late payment fee bears any relation to any costs, actual or reasonably

anticipated, that Defendants incur in processing a late payment.

cc. Whether the amount of the late payment fee is excessive.

TYPICALITY AND NUMEROSITY

23. The claims of the named Plaintiffs are typical of the claims of the putative class

and Defendants’ defenses to the Plaintiffs’ claims are typical of their defenses to the claims of

the putative class. The total number of members of the putative class exceeds one-thousand

(1,000) members.

ADEQUATE REPRESENTATION

24. The Plaintiffs will fairly and adequately protect the interests of the members of

the class and have no interest antagonistic to those of other class members. Plaintiffs have

retained class counsel competent to prosecute class actions and such class counsel are financially

able to represent the class.

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SUPERIORITY

25. The class action is superior to other available methods for the fair and efficient

adjudication of this controversy since individual joinder of all members of the class is

impracticable. The interests of judicial economy favor adjudicating the claims for the class

rather than on an individual basis. The class action mechanism provides the benefit of unitary

adjudication, economies of scale, and comprehensive supervision by a single court.

PREDOMINANCE

26. Questions of law and fact predominate over any questions affecting only

individual members.

FACTUAL ALLEGATIONS

27. Defendants tout themselves as a “leading provider of environmental services, oil

re-refining and responsible cleaning solutions.” In essence, they lease parts cleaning equipment,

collect and process used motor oil, and provide waste disposal services. Defendants operate

throughout the United States, including throughout Alabama, Missouri, California, Florida,

Arkansas, and West Virginia. Defendants provide such services to Plaintiffs and putative class

members (hereinafter collectively referred to as “customers”).

28. Often, Defendants use contracts or “Service Agreements” to establish agreements

with customers for these services. Defendants use pre-printed, form contracts, which contain the

same relevant provisions. Defendants also provide services to customers without entering into

written contracts. Defendants pay their customers a per-gallon rate for the used oil, which

Defendants re-refine and then sell. Defendants also occasionally sell specialized cleaning

products.

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29. Defendants’ pre-printed, form contracts state that Defendants will provide agreed

upon services, and that their customers will pay for those services at an agreed upon rate. The

agreements also contain stringent enforcement provisions (including liquidated damages, a

“termination fee,” and attorney’s fees) and are auto-renewing unless advanced, written notice of

cancellation is provided. The form agreements are integrated; expressly providing that each

comprises the entire agreement between the parties, and that the agreement cannot be changed

unless in writing and signed by both parties.

30. Additionally, in violation of the uniform contractual language, Defendants charge

customers unearned and excessive fees after the contracts are executed. These fees include, but

are not limited to, “Fuel Surcharges,” “Extended Service Area Fees,” and “Late Payment Fees”

(hereinafter collectively referred to as the “improper fees”). Importantly, Defendants’ customers

are effectively “locked-in” to the contracts due in substantial part to provisions allowing for

attorney’s fees and costs for any perceived breach.

31. Many of the pre-printed, form contracts do not mention fuel surcharges, extended

service area fees, late payment fees, or any other costs which will be assessed to customers after

the contract is executed. Under the form agreements, Defendants may only charge and collect

the agreed-upon price from each customer. After locking customers into these agreements,

Defendants force-place the improper fees on customers’ invoices and require them to pay these

fees. Defendants know before they enter into the agreements that they will charge the improper

fees, but do not disclose this fact or include it in the form agreements which it drafts. This is a

violation of California’s § 17200 et seq., and § 17500 et seq., Florida’s § 501.201, et seq.,

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Arkansas’ § 4-88-101, et seq., and West Virginia’s § 46A-6-104, et seq., by which Plaintiffs and

putative class members have been damaged in that they have been forced to pay the unlawful and

improper fees. If the contracts do specifically mention the fees, the fee amounts charged to

customers are excessive.

32. In fact, the name “fuel surcharge” is a misrepresentation itself because the fee is

not designed to, nor does it affect, a recovery of Defendants’ fuel cost. It is not a passed-through

cost which Defendants incur and in turn directly charge their customers. This is evidenced by

the fact that the Fuel Surcharge is the same amount (at any given time) for each of Defendants’

customers, regardless of where they reside or what Defendants’ cost of fuel may be. Thus, a

customer which resides fifty yards from Defendants’ nearest location is charged the same Fuel

Surcharge as the customer which resides fifty miles from that location. The fuel surcharge is

simply a hidden rate increase which Defendants do not disclose to their customers before

contracting, and which Defendants then misrepresent as a legitimate charge related to their fuel

costs. Similarly, the “extended service area” fee is a hidden rate increase which Defendants

likewise do not disclose to their customers and which Defendants misrepresent as a legitimate

charge related to the increased cost of serving the particular customer who incurs the fee.

33. Additionally, Defendants’ charging and collecting of the fuel surcharge is

fraudulent and unfair, and Defendants have made false and misleading statements regarding the

fuel surcharge. Indeed, to make the fuel surcharge appear to be a legitimate charge, Defendants

engage in a host of deceptive conduct. Defendants misrepresent the nature, purpose and effect of

the fuel surcharge to Plaintiffs and their other Alabama, California, Missouri, Florida, Arkansas,

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and West Virginia customers. In fact, the term “fuel surcharge” itself is a misrepresentation as

this fee is neither a “surcharge” nor is it related to Defendants’ cost of “fuel.” The fuel surcharge

is not reasonable and bears absolutely no relationship to Defendants’ cost of fuel. Defendants

only named this fee a “fuel surcharge” to create the false impression among their customers that

the fee is a legitimate charge rationally and reasonably related to the fuel costs they incur in

providing services. Defendants make this misrepresentation on every invoice they send to their

Alabama, California, Missouri, Florida, Arkansas, and West Virginia customers. Plaintiffs have

paid the invoices, including the fuel surcharge fees. Plaintiffs have reason to believe that

identical misrepresentations were made to each member of the putative class by Defendants

when Defendants sent or presented each with similar if not effectively identical invoices.

34. Defendants also misrepresented and suppressed other material facts to Plaintiffs,

putative class members, and the general public. For example, on its website Defendant Safety-

Kleen Systems, Inc., represents that the fuel surcharge is applied “to ensure our customers get the

best value in service and price.” This is false; the fuel surcharge is charged and collected solely

to increase Defendants’ profits. Defendants suppress material facts from Plaintiffs, putative class

members, and the general public, including that the fuel surcharge is a profit device, that the fuel

surcharge is not related to its costs of fuel, that Defendants will charge the fuel surcharge

regardless of the price of fuel, and that Defendants do not pay the retail price of diesel fuel.

35. Additionally, by charging the fuel surcharge, Defendants are engaging in the

unlawful, unfair, and fraudulent practice known as “double-dipping.” Fuel costs, like other

overhead, are built into the prices Defendants charge its customers. These costs are inherent in

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the nature of Defendant’s business (which requires Defendant to drive to customers’ locations),

and Defendants previously did not attempt to charge customers separately for these costs.

Defendants cannot, under the terms of the uniform agreement or instances where there is no

agreement, charge its customers specifically for fuel, just as it cannot charge its customers for

increased labor wages, or the purchase of a new truck. Defendants take into account the cost of

fuel when determining what prices they charge customers, just as Defendants take into account

other overhead. Thus, Defendants are double dipping: charging for the cost of fuel in the rate,

and then charging for the alleged cost of fuel again through the unlawful “fuel surcharge.

Defendants are also double dipping by charging both “Extended Service Area Fees” and “Fuel

Surcharges.” This is a breach of Defendants’ contract.

36. Defendants also charge its customers a “late payment fee” when payment is made

more than 30 days after it is due. The late fee is charged in the uniform amount of $25. The

uniform agreements provide that, if a customer does not remit payment within 30 days,

Defendants may charge an amount equal to the lesser of “(i) 1.5% per month (18% per annum);

or (ii) the maximum rate allowed by law….” However, Defendants do not charge the lesser of

the two amounts. By charging a different, higher amount, Defendants have violated applicable

law and the terms of the uniform agreements.

37. Further, the $25 late fee Defendants charge is unfair and unlawful. Additionally,

it is both procedurally and substantively unconscionable. It bears no relation to any costs

Defendants have, or anticipated having when the contract was executed, in processing late

payment. This fee is patently unreasonable under the circumstances, both when the contract was

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made and when the fee is charged to Plaintiffs and members of the putative class. Notably,

Defendants have tremendously more bargaining power when entering into contracts than do its

customers. The form agreement is a contract of adhesion, and the agents presenting the

agreements to customers do not have authority to alter those agreements’ terms. Plaintiffs and

putative class members cannot reasonably avoid the $25 late fee as it is not disclosed in the

contract or anywhere else in writing, except on the invoice. Defendants’ offer relatively unique

services and their customers have limited other choices. For putative class members without

contracts, the late fee also constitutes an unfair and unlawful charge.

38. When entering into the contracts, or when charging late fees on invoices,

Defendants know that the damages incurred by late payment are much less than $25. Defendants

incur almost no costs when a customer remits payment late. The processing costs are minimal,

and do not effectively differ from the standard costs of processing payment. Further, the time

value of money costs Defendants incur could be easily calculated by the application of interest.

The $25 late fee is punitive in design and is unreasonable under the common circumstances

surrounding the execution of the form agreements.

39. From their unfair, unlawful, and fraudulent business practices—and their false

and misleading statements—Defendants have wrongfully collected fuel surcharges, extended

service area fees, and late payment fees from Plaintiffs and members of the putative class for

years. This conduct has reaped windfall profits for Defendants at their customers’ expense. The

harm caused by Defendants’ wrongful conduct outweighs any benefit from such conduct.

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Plaintiffs bring this action to recover the entirety of these ill-gotten gains and all other relief

which the Court or jury find to be appropriate.

FIRST CAUSE OF ACTION UNLAWFUL, UNFAIR AND FRAUDULENT BUSINESS PRACTICES

(CAL. BUS. & PROF. § 17200, ET SEQ.)

40. Plaintiffs adopt, re-allege and incorporate herein each and every allegation in

Paragraphs 1 through 39, as though fully set forth herein.

41. Plaintiffs bring this claim individually, on behalf of the class and on behalf of the

general public.

42. Through the conduct described herein, and particularly through the charging and

collecting of unlawful, misrepresented and excessive fees to Plaintiffs and members of the

public, Defendants have engaged in unlawful, deceptive, and unfair business acts within the

meaning of California Business and Professions Code § 17200 et seq. Defendants’ actions and

practices offend an established public policy, and Defendants have engaged in immoral,

unethical, oppressive, and unscrupulous activities that are substantially injurious to consumers

including Plaintiffs.

43. Defendants’ acts of unlawful, unfair, and fraudulent business practices include

violations of the California Civil Code §§1572, 1573, 1709, 1711, 1770, 1670.5, and the

common law. Such acts include, but are not limited to,

a. charging Plaintiffs and/or members of the public unreasonable fuel

surcharges and ESA fees which are excessive, unnecessary, and unlawful;

b. misrepresenting to Plaintiffs and/or members of the public the purpose and

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nature of the fuel surcharges and ESA fees;

c. misrepresenting, and/or omitting to reveal, to Plaintiffs and members of

the public that the fuel surcharges bear no relation to Defendants’ cost of

fuel;

d. failing to reveal to Plaintiffs and/or members of the public, that the fuel

surcharges and ESA fees are used to create profit for Defendants;

e. misrepresenting or failing to reveal that the “fuel surcharge” is neither

reasonable, nor is it a surcharge;

f. charging Plaintiffs and members of the public “late payment fees” which

are excessive, punitive, unreasonable, and unlawful;

g. charging Plaintiffs and members of the public “late payment fees” which

are procedurally and/or substantively unconscionable; and

h. charging Plaintiffs and members of the public “late payment fees” which

are not, and were not anticipated to be, reasonably related to Defendants’

costs associated with late payment.

44. Upon information and belief, Defendants’ wrongful conduct in violation of §

17200, et seq. is ongoing and continues to this date.

45. There were reasonably available alternatives to further Defendants’ legitimate

business interests, other than the conduct described herein.

46. Defendants’ actions, nondisclosures, and misleading statements, as alleged in this

Complaint, were and are likely to deceive Plaintiffs and the public, and are intended to deceive

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Plaintiffs and members of the public. Plaintiffs have in fact been deceived and have relied on

Defendants’ representations and omissions. This reliance has caused harm to Plaintiffs and

Plaintiffs have suffered injury in fact and lost money as a result of Defendants’ unlawful, unfair,

and fraudulent practices. Plaintiffs have paid the unlawful fees.

47. As a result of their unlawful, unfair, and fraudulent practices, Defendants have

been able to reap unjust revenue and profit. Further, upon information and belief, unless

restrained and enjoined, Defendants will continue to engage in the above-described conduct.

Accordingly, injunctive relief is appropriate here.

48. Defendants’ actions also constitute “unfair” business acts or practices because, as

alleged above, inter alia, Defendants engage in false advertising, misrepresent and omit material

facts regarding the improper fees, and thereby offend an established public policy, and engage in

immoral, unethical, oppressive, and unscrupulous activities that are substantially injurious to

consumers including Plaintiffs.

49. Plaintiffs, on behalf of themselves, all others similarly situated, and the general

public, seek restitution of all money improperly obtained from Plaintiffs and the class members

which Defendants collected or received as a result of unlawful, unfair, or fraudulent practices, an

injunction prohibiting Defendants from continuing such practices, and all other relief the Court

deems proper and just, consistent with, inter alia, Business & Professions Code §17203.

SECOND CAUSE OF ACTION FALSE AND MISLEADING STATEMENTS (CAL. BUS. & PROF. § 17500, ET SEQ.)



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51. Plaintiffs bring this claim individually, on behalf of the class and on behalf of the

general public.

52. Through the conduct described herein, and particularly through the charging and

collecting of unreasonable fuel surcharges, ESA fees, and late payment fees from Plaintiffs

and/or members of the public, Defendants have engaged in unfair, deceptive, and misleading

advertising within the meaning of California Business and Professions Code § 17500 et seq.

Defendants’ acts and practices offend an established public policy, and Defendants have engaged

in immoral, unethical, oppressive, and unscrupulous activities that are substantially injurious to

consumers including Plaintiffs.

53. Defendants made and disseminated false and misleading statements to Plaintiffs

and members of the public regarding the nature, purpose, and effect of the fees, as well as

regarding the costs Defendants incur in providing service and processing late payment.

Defendants created false impressions which Defendants failed to correct, and concealed material

information regarding the fees.

54. Upon information and belief, Defendants’ wrongful conduct in violation of

Business & Professions Code § 17500, et seq. is ongoing and continues to this date. There were

reasonably available alternatives to further Defendants’ legitimate business interests, other than

the conduct described herein.

55. Defendants’ actions, claims, nondisclosures, and misleading statements, as

alleged in this Complaint, are likely to deceive Plaintiffs and the public, and were intended to

deceive Plaintiffs and members of the public. Plaintiffs have in fact been deceived and have

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relied on Defendants’ misrepresentations and omissions. This reliance has caused harm to

Plaintiffs and Plaintiffs have suffered injury in fact and lost money as a result of Defendants’

unlawful, unfair, and fraudulent practices. Plaintiffs have paid the unlawful fees.

56. As a result of its deception, Defendants have been able to reap unjust revenue and

profit. Further, upon information and belief, unless restrained and enjoined, Defendants will

continue to engage in the above-described conduct. Accordingly, injunctive relief is appropriate.

57. Plaintiffs, on behalf of themselves, all others similarly situated, and the general

public, seeks restitution of all money improperly obtained from Plaintiffs and class members; an

injunction prohibiting Defendants from continuing such practices; and all other relief the Court

deems proper and just, consistent with, inter alia, Business & Professions Code §17203.

THIRD CAUSE OF ACTION VIOLATION OF FLA. STAT. § 501.201, ET SEQ. (“FDUTPA”)


Paragraphs 1 through 57 as though fully set forth herein.

59. Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201, et seq.

(“FDUTPA”), prohibits “unfair methods of competition, unconscionable acts or practices, and

unfair or deceptive acts or practices in the conduct of any trade or commerce.”

60. The stated purpose of FDUTPA is to protect consumers from “those who engage

in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the

conduct of any trade or commerce.” §501.202.

61. Plaintiffs are “consumers” as defined by FDUTPA. § 501.203(7).

62. Defendants characterize the improper “fuel surcharges,” “extended service area

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fees,” and “late payment fees” as legitimate charges, but such fees are nothing more than profit

enhancers for Defendants and are otherwise improper. Defendants have deceived and misled

Plaintiffs and putative class members in that the improper fees serve no purpose other than to

increase Defendants’ profits and because such improper fees are excessive and bear no relation

to any actual cost incurred by Defendants. Defendants have done no cost analysis to determine

whether the fees actually charged bear any relation to the costs incurred by Defendants.

63. Defendants’ misrepresentations, omissions, and deceptive practices as set out

herein are likely to mislead reasonable consumers under the circumstances.

64. Among the misrepresentations Defendants make to Plaintiffs and their other

customers in furtherance of this scheme are the naming of the fees themselves. The term “fuel

surcharge” is deceptive because it is, in fact, neither a surcharge nor is it related to Defendants’

fuel costs.

65. Through the use of these misleading terms, Defendants have deceived their

customers as to the nature and purpose of these fees. Defendants make these misrepresentations

every time they send an invoice to Plaintiffs, and their other customers, charging the fees.

66. Defendants make additional misrepresentations regarding the nature and purpose

of the fees, and have omitted material facts regarding the fees. These omissions, as well, are

likely to deceive reasonable customers under the circumstances, and have detrimentally caused

Plaintiffs and Defendants’ other Florida customers to pay the improper and excessive fees.

67. Also, Defendants know when they enter into an agreement with their customers

that they will charge a much higher amount on the monthly invoices than the amount agreed

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upon. Defendants misrepresent the amount Plaintiffs and putative class members will be

required to pay under the terms of the form agreements.

68. As a result of the deceptive and unfair practices described above, Plaintiffs and

the putative class paid the improper “fuel surcharges” and “late payment fees” at issue to their

detriment.

WHEREFORE, premises considered, Plaintiffs and putative class members demand an

award against Defendants for violation of Section 501.201, et seq., and demand as damages the

repayment of all purchase monies, including fees, interest, a declaration that the practices

described above are deceptive or unfair trade practices under Section 501.201, and the attorneys’

fees and costs incurred in bringing this action. Plaintiffs further demand all remedies and

damages available under FDUTPA.

FOURTH CAUSE OF ACTION VIOLATION OF ARK. CODE ANN. § 4-88-101, ET SEQ. (“ADTPA”)



70. Arkansas’ Deceptive Trade Practices Act, Ark. Code Ann § 4-88-101, et seq.

(“ADTPA”), prohibits “unconscionable, false, or deceptive acts or practice in business,

commerce, or trade.”

71. Plaintiffs constitute a “person” as defined by ADTPA § 4-88-102(f).




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to any actual cost incurred by Defendants. Defendants have done no cost analysis to determine

whether the fees actually charged bear any relation to the costs incurred by Defendants.






fuel costs.







Plaintiffs and Defendants’ other Arkansas customers to pay the improper and excessive fees.





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78. As a result of the deceptive and unfair practices described above, Plaintiffs and

the putative class has suffered actual injury by paying the improper “fuel surcharges,” “extended

service area fees,” and “late payment fees” at issue.


award against Defendants for violation of Section 44-88-101, et seq., and demand as damages

the repayment of all purchase monies, including fees, interest, a declaration that the practices

described above are deceptive or unfair trade practices under Section 44-88-101, et seq., and the

attorneys’ fees and costs incurred in bringing this action. Plaintiffs further demand all remedies

and damages available under ADTPA.

FIFTH CAUSE OF ACTION VIOLATION OF THE WEST VIRGINIA CONSUMER CREDIT

AND PROTECTION ACT, § 46A-6-104



80. West Virginia’s Consumer Credit and Protection Act, § 46A-6-104, states that

“unfair methods of competition and unfair or deceptive acts or practices in the conduct of any

trade or commerce are hereby declared unlawful.”






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to any actual cost incurred by Defendants. Defendants have performed no cost analysis to

determine whether the fees actually charged bear any relation to the costs incurred by

Defendants.






fuel costs.







Plaintiffs and Defendants’ other West Virginia customers to pay the improper and excessive fees.





87. As a result of the deceptive and unfair practices described above, Plaintiff and the

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putative class paid the improper “fuel surcharges,” “extended service area fees,” and “late

payment fees” at issue to their detriment.


award against Defendants for violation of Section 46A-6-101, et seq. and demand as damages the

repayment of all purchase monies, including fees, interest, a declaration that the practices

described above are deceptive or unfair trade practices under Section 46A-6-101, et seq., and the

attorneys’ fees and costs incurred in bringing this action. Plaintiffs further demand all remedies

and damages available.

SIXTH CAUSE OF ACTION BREACH OF CONTRACT

88. Plaintiffs adopt, re-allege and incorporate each and every allegation in Paragraphs

1 through 87, as though fully set forth herein.

89. A valid agreement exists between Plaintiffs and Defendants, and between each

putative member of the class set forth above and Defendants.

90. Plaintiffs and putative class members have performed their obligations under their

respective contracts. Defendants’ improper practices as set out herein constitute a breach of

contract from which Plaintiffs and putative class members have been damaged. Such breaches

of contract occurred in the past and are ongoing and continue today. Defendants’ practices

caused Plaintiffs and putative class members to pay excessive, unearned and unnecessary fees

and charges as set out herein. Plaintiffs and putative class members are entitled to damages

stemming from Defendants’ breach of contract, including interest.

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WHEREFORE, premises considered, Plaintiffs on behalf of themselves and putative

class members, seek to recover all damages stemming from such violations, including all

applicable compensatory damages.

SEVENTH CAUSE OF ACTION UNJUST ENRICHMENT/CONSTRUCTIVE TRUST


Paragraphs 1 through 90, as though fully set forth herein. Defendants, by suppressing from

Plaintiffs and putative class members the material facts set forth herein, by misrepresenting the

material facts set forth herein, and by engaging in the other unlawful and wrongful conduct set

out herein:

a. created or confirmed an impression in Plaintiffs and putative class members

which was false and which Defendant did not believe to be true; and/or

b. failed to correct a false impression which Defendants previously created or

affirmed; and/or

c. failed to correct a false impression which Defendants were under a duty to

correct; and/or

d. prevented Plaintiffs and putative class members from acquiring material facts;

and/or

e. engaged in the improper actions and/or inactions set out herein.

92. Such excessive and wrongful fees charged to Plaintiffs and putative class

members by Defendants have resulted in Defendants obtaining money, which in equity and good

conscience, belong to Plaintiffs and putative class members.

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93. Plaintiffs and putative class members further request that the Court impose a

constructive trust on such monies and require Defendants to repay such monies to Plaintiffs and

putative class members.

94. As a direct result thereof, Defendants have been unjustly enriched, and Plaintiffs

and putative class members have been injured and damaged and seeks recovery of all monies

improperly procured, plus interest.

WHEREFORE premises considered, Plaintiffs, on behalf of themselves and putative

class members, seek to recover all damages resulting from such violations.

EIGHTH CAUSE OF ACTION MISREPRESENTATION



96. At all times material hereto, Defendants were under a duty not to misrepresent the

amount paid or owed under the contracts and the purpose and nature of the improper fees. In

breach of this duty, Defendants intentionally, recklessly or negligently misrepresented that the

fees and charges set out herein were legitimate charges, when in fact, such charges were

unlawful and inflated. Defendants further misrepresented what rates would be paid and charged

under the contract. Also, Defendants misrepresented the fees as “fuel surcharges” and “extended

service area” fees, when these fees were simply profit devices, entirely unrelated to any costs

Defendants might incur in providing services or selling products. Defendants made these

misrepresentations on their website and on invoices and contracts provided to Plaintiffs.

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97. Plaintiffs received such misrepresentations when its contracts were executed, on

dates when it received invoices and receipts, as well as other times which can be determined

from documents currently in Defendants’ sole possession.

98. Defendants made these misrepresentations, including in the naming of the

misrepresented fees, the creation of the other misrepresentations set out herein, and the collecting

and processing of payments. The purpose of Defendants’ misrepresentations is and was to

induce customers to pay the improper charges and, for those customers with contracts, to cause

such customers to enter into contracts based upon improper rate and cost information.

99. By intentionally, recklessly or negligently misrepresenting the nature of the fees

alleged herein, Defendants have taken advantage of Plaintiffs and other putative class members,

who based upon such misrepresentation of material facts, were misled into paying such fees and

charges and, where applicable, into entering into agreements with Defendants. Defendants

conduct constitutes a fraudulent scheme whereby Defendants have intended to defraud each of

their Alabama, California, Missouri, Florida, Arkansas and West Virginia customers.

100. Defendants’ misrepresentations of material facts have damaged Plaintiffs and

other putative class members for which damages are sought.

WHEREFORE, premises considered, Plaintiffs, on behalf of themselves and putative


applicable compensatory and punitive damages.

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NINTH CAUSE OF ACTION SUPPRESSION

101. Plaintiffs adopt, re-allege and incorporate each and every allegation in Paragraphs

1 through 101, as though fully set forth herein.

102. At all times material hereto, Defendants were under a duty to communicate the

actual rates which would be paid and charged under the contract and the true nature of the fees

and charges set out herein. In violation of this duty, Defendants suppressed or concealed from

their customers the true nature of the fees and charges and, for those customers with written

contracts, the rates which would be paid and charged under such contracts. As a direct and

proximate result, Defendants’ customers paid the improper charges. Defendants suppressed

these material facts when they entered into the agreement with Plaintiffs and each time

Defendants sent an invoice to Plaintiffs. At the time Defendants suppressed this information

from Plaintiffs, Defendants knew or should have known that they were under a duty to

communicate the true nature of their fees and charges.

103. By suppressing the true nature of the fees and charges and not disclosing material

information concerning such fees and charges, Defendants have taken advantage of Plaintiffs and

putative class members, who based upon such omissions, were misled into paying such fees and

charges.

104. Defendants’ suppression of material facts have damaged Plaintiffs and putative

class members as set out herein.

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WHEREFORE, premises considered, Plaintiffs, on behalf of themselves and putative


applicable compensatory and punitive damages.

PLAINTIFFS DEMAND A TRIAL BY JURY

Respectfully submitted, /s/ Robert G. Methvin Jr. Robert G. Methvin, Jr. (MET009) James M. Terrell (TER015) Patrick C. Marshall (MAR207) Richard A. Harrison (HAR176) L. Shane Seaborn (SEA027) Christy D. Crow (CRO064) Attorneys for Plaintiffs

OF COUNSEL: MCCALLUM, METHVIN & TERRELL, P.C. The Highland Building 2201 Arlington Avenue South Birmingham, Alabama 35205 (205) 939-0199 - telephone (205) 939-0399 – facsimile

Law Offices of Richard A. Harrison 104 East Broad Street Eufaula, Alabama 36027

(334) 687-4824 (334) 687-4826 Penn & Seaborn 1442 S. Eufaula Ave. Eufaula, Alabama 36027

(334) 687-5555 (334) 687-5111

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Jinks Crow and Dickson, P.C. 219 North Prairie St. Union Springs, Alabama 36089 (334) 738-4225 (334) 738-4229

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CERTIFICATE OF SERVICE I hereby certify that on this day February 3, 2015, I filed the foregoing using the AlaFile system, which will send notice to all counsel of record. Service perfected on additional Defendant, Clean Harbors, Inc., through its counsel Gregory C. Cook and G. Lane Knight, who have agreed to accept service on its behalf. /s/ Robert G. Methvin, Jr.

Documents

NOTICE OF ELECTRONIC FILINGsksettlement.noticeclass.com/Content/documents/... · AlaFile E-Notice To: KNIGHT GRIFFIN LANE [email protected] 06-CV-2010-900021.00 NOTICE OF ELECTRONIC