SEATTLE (CN) – A federal judge refused to certify a class action that claimed Expedia misled customers with bogus discounts and lowballed luggage fees, finding the lead plaintiff has no reliable method to identify class members.
Jeffrey Weidenhamer claimed he had to pay $650 in baggage fees because Expedia falsely promised one free checked bag with online airfare purchases, and failed to give mobile application users the 5 percent discount it promised in its pop-up ad.
He sued the travel service in July 2014 alleging consumer law violations, unjust enrichment and violation of the Washington Sellers of Travel Act, and asked for class status.
U.S. District Judge Richard Jones found that Weidenhamer was actually proposing two class certifications, arising from the baggage-fee claims and “Mobilego” pop-up ad.
On Friday, Jones ruled that Weidenhamer failed to meet the burden for class certification in several ways. He found it was not “administratively feasible” to identify members of the proposed baggage-fee class.
“At this juncture, the Court finds that Plaintiff has not demonstrated that the baggage fee class is ascertainable and has serious reservations as to whether such a potentially large and unwieldy class could be ascertained,” Jones wrote.
He agreed with Expedia’s argument that identifying customers who paid baggage fees that had been misrepresented would be “inordinately difficult.”
“The crux of Defendant’s argument is that it would be inordinately difficult to identify individual class members due to: (1) incomplete records of past baggage fee estimate ‘rules’ and the actual baggage fee policies for the carriers at the time, (2) the astronomical number of permutations created by the mix of carriers, flights, and fare classes offered by Expedia over the relevant period, (3) individual customer variations, such as whether a refund or waiver of baggage fees was issued by the airline, and (4) purportedly incomplete or insufficient records from the airlines who actually charged the baggage fees,” Jones wrote.
He called Weidenhamer’s solution: looking at Expedia’s internal records for customers’ baggage fees that did not match disclosures, “nothing more than throwing the proverbial spaghetti at the wall to see what sticks.”
“First, Plaintiff presupposes that historical baggage fee display information exists, despite Defendant’s representations and all evidence to the contrary. Second, Plaintiff does not identify what he plans to do with any of this information or how it identifies actual class members – that can only be done with some method of identifying the customers who potentially received the problematic baggage fee displays,” Jones wrote.
He found that Weidenhamer failed to show a class action is superior to an individual lawsuit, as “individual issues predominate over any common issues.”
Jones found “no administratively feasible means” to identify the mobile app class.
He said that while Expedia knows how many mobile devices downloaded the app, it has no way to tie the specific devices to flight purchases and no way to know whether any individual purchased a flight after viewing the Mobilego coupon.
“Plaintiff has not met that burden, given the monumental manageability issues presented by the proposed class, and his failure to explain how to meaningfully take this case to an eventual conclusion,” Jones wrote.
He denied class certification without prejudice and gave Weidenhamer 10 days to try again.
Weidenhamer’s attorney, Duncan Turner with Badgley Mullins Turner in Seattle, did not immediately return an emailed request for comment sent after business hours.
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