Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT. FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No.: CV HRL

Transcription

1 0 0 Thomas G. Foley, Jr., SBN 0 tfoley@foleybezek.com Roger N. Behle, SBN rbehle@foleybezek.com Justin P. Karczag, SBN jkarczag@foleybezek.com FOLEY BEZEK BEHLE & CURTIS, LLP West Carrillo Street Santa Barbara, California 0 Telephone: (0) - Facsimile: (0) -0 William M. Aron, SBN 0 aron@aronlawyers.com LAW OFFICE OF WILLIAM M. ARON West Carrillo Street Santa Barbara, CA 0 Telephone: (0) - Facsimile: (0) -0 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No.: CV0-0 HRL HAYLEY HICKCOX-HUFFMAN, on behalf of herself and all others similarly situated vs. Plaintiff, US AIRWAYS, INC., US AIRWAYS GROUP, INC., and DOES through 0, inclusive. Defendants. FIRST AMENDED CLASS ACTION COMPLAINT. Breach of Self-Imposed Undertaking. Breach of Contract (Express). Breach of Contract (Implied). Breach of Contract (Federal Law). Breach of the Implied Covenant of Good Faith and Fair Dealing. Unjust Enrichment. Intentional Misrepresentation. Negligent Misrepresentation JURY DEMAND Complaint Filed: November, 00 USDC, ND, Case No.: CV-0-HRL

2 0 0 I. NATURE OF THE ACTION. This is a consumer class action for, inter alia, breach of self-imposed undertaking, breach of contract (express and implied), unjust enrichment, and misrepresentation, all arising out of Defendants handling and transportation of its passengers baggage. Plaintiff Huffman brings this action in her own right and on behalf of a nationwide class and subclass of all others similarly situated.. All allegations made in this First Amended Class Action Complaint ( Complaint ) are based upon information and belief except those allegations that pertain to the Plaintiff, which are based on personal knowledge. Each allegation in this Complaint either has evidentiary support or, alternatively, pursuant to Rules (e)() and (b)() of the Federal Rules of Civil Procedure, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. II. JURISDICTION AND VENUE. Jurisdiction is proper in this Court under U.S.C. (d), as amended by the Class Action Fairness Act of 00. In addition, under U.S.C., this Court may exercise supplemental jurisdiction over any state law claims because all of the claims are derived from a common nucleus of operative facts and are such that Plaintiff ordinarily would expect to try them in one judicial proceeding.. Venue is proper in this judicial district pursuant to U.S.C. (c) because the Defendants reside and transact substantial business within, and are subject to personal jurisdiction in, this judicial district. III. PARTIES. Plaintiff Hayley Hickcox-Huffman ( Huffman ) is a resident of Atascadero, California, in San Luis Obispo County. USDC, ND, Case No.: CV-0-HRL

3 0 0. Defendant US Airways Group, Inc. ( USAGI ) is, and at all times relevant hereto was, a Delaware corporation, with its principal place of business located in Tempe, Arizona. USAGI conducts business as US Airways, US Airways Express, and US Airways Shuttle.. US Airways, Inc. ( USAI ) is, and at all times relevant hereto was, a Delaware corporation with its principal place of business located in Tempe, Arizona. USAI conducts business as US Airways as US Airways Express, and US Airways Shuttle. USAI is an operating unit of USAGI. The Baggage Fee policy promulgated and implemented by USAGI is uniformly applicable across all US Airways flights, including USAI, US Airways Express and US Airways Shuttle and is applicable to all USAIG subsidiaries and joint venture partners. Defendants USAIG and USAI are collectively referred to herein in the singular as US Airways or Defendant.. Plaintiff Huffman is unaware of the true names, identities and capacities of the Defendants sued herein as DOES through 0. Plaintiff Huffman will amend this Complaint to allege the true names and capacities of DOES through 0 when ascertained. Plaintiff Huffman is informed and believes, and thereupon alleges, that each of the Defendants sued herein as a DOE is legally responsible in some manner for the events and happenings set forth herein, and has proximately caused injuries and damages to Plaintiff Huffman and the Class and Subclass as set forth below.. Whenever, in this Complaint, reference is made to any act, deed or conduct of Defendant, the allegation means that Defendant engaged in the act, deed or conduct by or through one or more of its officers, directors, agents, employees or representatives who was actively engaged in the management, direction, control or transaction of the ordinary business and affairs of Defendant. USDC, ND, Case No.: CV-0-HRL

4 0 0 IV. FACTUAL BACKGROUND 0. Defendant is a major commercial airline based in Tempe, Arizona. Defendant is one of the top ten domestic airlines. Defendant employs over 0,000 people worldwide and operates over,000 daily flights.. Commencing on or about July, 00, Defendant began charging passengers $ to $ for their first checked bag, $ to $ for the second checked bag and $00 to $00 each for the third through ninth checked bags. On July, 00, Defendant began charging passengers $0 to $0 for their first checked bag, $0 to $0 for their second checked bag, and $00 to $00 each for their third through ninth checked bags. Presently Defendant charges passengers $ to $ for their first checked bag, $ to $ for their second checked bag and $00 to $00 each for their third through ninth checked bags. (Prior to July, 00, Defendant did not charge a fee, provided certain weight and size requirements were met, for the first two checked bags.) Collectively, these charges are referred as the baggage fee. ). When Defendant charged these fees for baggage, it incurred the obligation to handle such baggage with care and ensure the timely delivery of the baggage to its passengers upon their arrival at their destination. Each time Defendant delays or loses baggage, but fails to return the baggage fee to the affected passenger, it breaches this obligation. Defendant is not entitled to retain baggage fees collected from passengers whose bags have been delayed or lost while in the care of Defendant.. Defendant charged a baggage fee to its passengers in addition to the amount already charged to them for their purchase of airline tickets. Defendant undertook to create a baggage fee, set the amount of the baggage fee, and required its passengers to pay the baggage fee. The undertaking was self-imposed by Defendant. In a transaction separate and apart from the purchase of airline tickets by passengers, Defendant charges passengers a baggage service fee. The price paid USDC, ND, Case No.: CV-0-HRL

5 0 0 by passengers, including Plaintiff Huffman, for their airline tickets from Defendant did not include the baggage fee. Upon acceptance of the baggage fee and baggage, Defendant incurred the obligation to deliver their bags timely their upon their arrival at their destination. Defendant expressly agreed to undertake, impose on itself, and assent to the obligations arising from payment of the baggage fee. Defendant has breached and continues to breach this obligation by delaying or losing bags; but in each such instance, Defendant has kept and continues to keep the baggage fees paid by passengers whose bags they have delayed or lost.. On or about May, 00, Plaintiff Huffman purchased a one-way airline ticket on US Airways to travel from Colorado Springs, Colorado to San Luis Obispo, California. While at the airport in Colorado Springs, Plaintiff Huffman checked one bag with the US Airways agent and paid the $ baggage fee charged by Defendant. Attached hereto as Exhibit A is a true and correct copy of Plaintiff Huffman s baggage receipt, confirming payment of the $ baggage fee to Defendant in cash.. Plaintiff Huffman boarded her flight. However, when she arrived at her destination, her bag was not there. When she notified Defendant that her bag had been delayed or lost, after memorializing her report, representatives of US Airways told her that they could not locate her bag. Plaintiff Huffman s bag remained lost until the following day, and was consequently delivered late.. Despite Plaintiff Huffman having paid Defendant $ for the safe and timely delivery of her bag to her destination, Defendant lost her bag and did not return her baggage fee. V. CLASS ACTION ALLEGATIONS. Plaintiff Huffman brings this action, on behalf of herself and all others similarly situated, as a class action pursuant to Rule of the Federal Rules of Civil Procedure. The class that Plaintiff Huffman seeks to represent is defined as: USDC, ND, Case No.: CV-0-HRL

6 0 0 All US Airways passengers traveling domestic flights who were charged and paid a baggage fee or fees, and whose bags were delayed or lost, and who upon notifying Defendant of the delay or loss did not receive a refund of their baggage fee(s) from US Airways ( the Class ). A. Plaintiff Huffman also seeks to represent a Subclass defined as: All US Airways passengers traveling domestic flights who were subject to the Terms of Transportation in effect for Plaintiff Huffman and who were charged and paid a baggage fee or fees, and whose bags were delayed or lost, and who upon notifying Defendant of the delay or loss did not receive a refund of their baggage fee(s) from US Airways ( the Subclass ).. This action is brought and properly may be maintained as a class action pursuant to the provisions of F.R.Civ.P. (a)()-() and (b)(), (b)() or (b)() and satisfies those requirements.. While the exact number of members of the Class and Subclass are unknown to Plaintiff Huffman at this time and can only be determined by appropriate discovery, membership in the Class and Subclass is ascertainable based upon the billing records maintained by Defendant and by the data submitted to and compiled by the U.S. Department of Transportation. 0. At this time, Plaintiff Huffman is informed and believes that the Class and Subclass likely include thousands of members. According to the U.S. Department of Transportation, US Airways mishandled approximately,0 bags between March and May 00, corresponding to the time period when Plaintiff Huffman traveled. This extrapolates to well over 00,000 lost and delayed bags per year. Therefore, the Class and Subclass are sufficiently numerous that joinder of all members of the Class and Subclass in a single action is impracticable under F.R.Civ.P. (a)(), and the resolution of their claims through the procedure of a class action will be of benefit to the parties and the Court. Further, a refund of all fees charged to Class Members ( Class Members refers to members of both the USDC, ND, Case No.: CV-0-HRL

7 0 0 Class and the Subclass) during the relevant statute of limitations period likely exceeds the jurisdictional requirements of the Class Action Fairness Act of 00.. Common questions of law and fact exist as to the members of the Class and Subclass, as required by F.R.Civ.P. (a)(), and predominate over any questions that affect only individual members of the Class within the meaning of F.R.Civ.P. (b)().. The common questions of fact and law include, but are not limited to, the following: (a) Whether Defendant breached a self-imposed duty to timely deliver bags; (b) Whether Defendant breached its agreement(s) with passengers who paid baggage fees but had their bags delayed or lost, and did not receive a return of their baggage fees; (c) Whether Defendant was unjustly enriched by retaining the baggage fees paid by passengers whose bags were not delivered to them upon their arrival at their destinations; (d) Whether Defendant was unjustly enriched by retaining the baggage fees paid by passengers whose bags were lost; (e) Whether Defendant negligently or intentionally misrepresented to passengers by failing to inform them that if their bags were not timely delivered, Defendant would not return the baggage fee; (f) Whether Defendant is obligated to return baggage fees charged to Class Members each time they fail to timely deliver baggage to passengers upon their arrival at their destination; and, (g) Whether Defendant is obligated to refund baggage fees charged to Class Members each time they lose their baggage.. Plaintiff Huffman s claims are typical of the claims of the other members of the Class and Subclass whom she seeks to represent under F.R.Civ.P. USDC, ND, Case No.: CV-0-HRL

8 0 0 (a)() because Plaintiff Huffman and each member of the Class and Subclass were charged a baggage fee by Defendant, had their bags lost or delayed, and did not receive a return of the baggage fee.. Plaintiff Huffman will fairly and adequately represent and protect the interests of the Class and Subclass as required by F.R.Civ.P. (a)(). Plaintiff Huffman is an adequate representative of the Class and Subclass because she has no interests that are adverse to the interests of the other Class Members. Plaintiff Huffman is committed to the vigorous prosecution of this action and, to that end, Plaintiff Huffman has retained counsel who are competent and experienced in handling class action litigation on behalf of consumers.. A class action is superior to any other available methods for the fair and efficient adjudication of the claims asserted in this action under F.R.Civ.P. (b)() since: (a) The expense and burden of individual litigation make it economically unfeasible for Class Members to seek redress other than through the procedure of a class action; (b) If separate actions were brought by individual Class Members, the resulting duplicity of lawsuits would cause undue hardship and expense to the Court and the litigants by necessitating multiple trials of similar factual issues; and (c) Absent a class action, Defendant likely would retain the benefits of its wrongdoing, and there would be a failure of justice.. In the alternative, this action is certifiable under the provisions of F.R.Civ.P. (b)() and/or (b)() because: (a) The prosecution of separate actions by individual Class Members would create a risk of inconsistent or varying adjudications with respect to individual Class Members that would establish incompatible standards of conduct for Defendant; / / / USDC, ND, Case No.: CV-0-HRL

9 0 0 (b) The prosecution of separate actions by individual Class Members would create a risk of adjudications as to them that would, as a practical matter, be dispositive of the interests of the other class members not parties to the adjudications, or substantially impair or impede their ability to protect their interests; and (c) Defendant has acted or refused to act on grounds generally applicable to the Class and Subclass, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class or Subclass as a whole and necessitating that any such relief be extended to the Class Members on a mandatory, class wide basis.. Plaintiff Huffman is aware of no difficulty that will be encountered in the management of this litigation that should preclude its maintenance as a class action.. The names and addresses of the members of the Class and Subclass are available from Defendant s records. Notice can be provided to the members of the Class and Subclass via first class mail or otherwise using techniques and a form of notice similar to those customarily used in consumer class actions arising under California state law and federal law. FIRST CLAIM FOR RELIEF (Breach of Self-Imposed Undertaking). Plaintiff Huffman on behalf of herself and the Class and Subclass, repeats and incorporates herein by reference each and every allegation in paragraphs through, inclusive, as though fully set forth herein. 0. Defendant created a self-imposed duty to, in exchange for the fees paid by its customers for baggage, timely deliver (and not lose), customers baggage and to refund baggage fees if it failed to do so. Defendant s self-imposed undertaking is independently evidenced by both its words and its conduct. USDC, ND, Case No.: CV-0-HRL

10 0 0 A. Its words are in the form of its Customer Commitment Program which states inter alia, that: US Airways has committed to. Provide on-time baggage delivery. Make prompt refunds [and] Require the same quality of service by US Airways Express partners. B. Its conduct evinced this self-imposed undertaking when it specifically sold two different products, one, the delivery of a passenger at a certain time from one location to another, in exchange for a fee, and two, the contemporaneous delivery of the baggage of that passenger to that passenger s destination, in exchange for a separate fee. It took the luggage and the fee and coded them to the passenger and ultimately to the passenger s itinerary, including both the location, flight number, and the time of arrival via the baggage tag. It tracked the flight(s) that the passenger was scheduled to fly, including any changes to those flight times, which information is tied to the passenger s updated itinerary. This information is applied as both a bar code and a human readable number, and is known in the industry as a license plate, that is applied to the baggage tag. Defendant affirmatively took steps, adopted systems and policies, both visible and invisible to the passenger, and otherwise behaved consistent with its undertaking to timely deliver the baggage in exchange for the fee. Passengers would not have paid the fee but for Defendant s undertaking of the obligation for delivery of the passengers bags at the passengers destination at the passenger s arrival.. When Defendant undertook the duty to timely deliver the Plaintiff and the Class Members baggage in exchange for a fee and failed to do so, but retained the fee, Defendant breached its self-imposed undertaking and as a consequence is obligated to timely refund each Class Members baggage fee. 0 USDC, ND, Case No.: CV-0-HRL

11 0 0 SECOND CLAIM FOR RELIEF (Breach of Express Contract). Plaintiff Huffman on behalf of herself and the Class and Subclass, repeats and incorporates herein by reference each and every allegation in paragraphs through, inclusive, as though fully set forth herein.. Plaintiff Huffman and Class Members and Defendant entered into an express contract under which Defendant agreed to timely deliver Plaintiff s and the Class Members bags to them upon their arrival at their destination and to otherwise handle their bags with care so as not to lose or delay their bags; this was a material term of the express contract. And, Plaintiff Huffman and the Class Members agreed to pay and did pay a baggage fee to Defendant.. Plaintiff Huffman and each member of the Class are parties to contracts, namely baggage fee contracts, with Defendant, that are uniform with respect to the provisions applicable to the claims asserted against Defendant.. Plaintiff Huffman and each member of the TOT Subclass are parties to identical written contracts, as embodied in Defendant s Terms of Transportation ( TOT ), Doc -, that are uniform with respect to the provisions applicable to the claims asserted against Defendant.. Plaintiff Huffman and the members of the Class and Subclass have performed all conditions, covenants, and promises required to be performed on their part in accordance with the terms and conditions of the contract, except to the extent such performance was excused, released or waived by the actions, conduct or agreement of Defendant.. Defendant breached its contractual obligations under the baggage fee contracts and TOT with Plaintiff Huffman and each member of the Class and Subclass by failing to timely deliver their baggage to Plaintiff Huffman and each member of the Class and Subclass upon arrival at their destinations. In addition, such failure constitutes a failure of consideration. USDC, ND, Case No.: CV-0-HRL

12 0 0. As a direct and proximate result of Defendant s failure to timely deliver their baggage, Plaintiff Huffman and each member of the Class are entitled to a return of the consideration that they paid Defendant, in the form of their baggage fees. THIRD CLAIM FOR RELIEF (Breach of Implied Contract). Plaintiff Huffman on behalf of herself and the Class and Subclass repeats and incorporates herein by reference each and every allegation in paragraphs through, inclusive, as though fully set forth herein, and expressly pleads this Claim in the alternative to their Breach of Express Contract Claim. 0. Contracts may be made by a writing, orally, or by the conduct of the parties, or by a combination of any of the aforementioned. Each such contract is equally valid and enforceable, with the chief difference between them the manner of proof of the terms of the contract. Plaintiff Huffman and the Class Members and Defendant entered into a contract that was partly written and partly implied by conduct, under which Defendant agreed to timely deliver their bags to them upon their arrival at their destination and to otherwise handle their bags with care so as not to lose or delay those bags; this was a material term of the express contract. And, Plaintiff Huffman and the Class Members agreed to pay and did pay a baggage fee to Defendant in exchange.. The express terms were the payment of a specific fee by Plaintiff and the Class Members in exchange for delivery by Defendant of their bags. The implied terms of the contract were that Defendant and Plaintiff and the Class Members agreed that Defendant would deliver Plaintiffs and the Class Members bags timely to Plaintiff and the Class Members upon their arrival at their destination. / / / USDC, ND, Case No.: CV-0-HRL

13 0 0 A. Plaintiffs and Class Members demonstrated their clear intent and understanding that their bags be delivered to them timely upon their arrival by their conduct when they either: () arrived with the bags at airport, identified themselves and their flight itinerary to Defendant at the time of check-in (either via a human representative or by way of first an airline check-in Kiosk and then a human representative), and paid a bag fee for transportation of their bag as part of the trip that they were embarking upon; or () paid their bag fee at the time that they purchased their ticket online or through a ticket/travel agency, paying the baggage fee at the same time and as part of the same transaction as their payment for their flight, thus linking the times of transportation of their bags to their flights. B. Defendant demonstrated its clear intent and understanding that the bags were to be timely delivered to Plaintiff and the Class Members when it: () made the offer to transport their bags at the time that they purchased their tickets or when the passenger arrived at the airport to travel with luggage in hand; () accepted their baggage fees; () assigned each passenger s bags to the passenger who checked them in and that passenger s itinerary; () applied a baggage tag that contained a bar code and license plate linking it with the passenger s flight information including arrival time and destination; () had a system, custom and practice, of presenting their passengers with their baggage at the time of their arrival in a baggage pick-up area on a carousel or other specified location, along with the baggage of all others flying that customers flight; / / / USDC, ND, Case No.: CV-0-HRL

14 0 0 () implemented a system whereby a passenger could report a bag as being delayed or lost to a representative to document, or in a computerized self-entry system; and/or () never informed its passengers that it was not agreeing to deliver their baggage to them when they arrived at their destination.. Plaintiff Huffman and each member of the Class are parties to these contracts with Defendant that are uniform with respect to the provisions applicable to the claims asserted against Defendant. Plaintiff Huffman and each member of the Subclass are parties to these contracts, which written terms also include the TOT, an express covenant of which is the timely delivery of baggage, and which are uniform with respect to the provisions applicable to the claims asserted against Defendant.. Plaintiff Huffman and the members of the Class and Subclass have performed all conditions, covenants, and promises required to be performed on their part in accordance with the terms and conditions of the baggage fee contract, except to the extent such performance was excused, released or waived by the actions, conduct or agreement of Defendant.. Defendant breached its contractual obligations under these contracts and with Plaintiff Huffman and each member of the Class and Subclass by failing to timely deliver their baggage to Plaintiff Huffman and each member of the Class and Subclass upon their arrival at their destinations. In addition, such failure constitutes a failure of consideration.. As a direct and proximate result of Defendant s failure to timely deliver the baggage, Plaintiff Huffman and each member of the Class are entitled to a return of the consideration that they paid Defendant in the form of their baggage fees. / / / USDC, ND, Case No.: CV-0-HRL

15 0 0 FOURTH CLAIM FOR RELIEF (Breach of Contract Federal Common Law). Plaintiff Huffman on behalf of herself and the Class and Subclass, repeats and incorporates herein by reference each and every allegation in paragraphs through, and through, inclusive, as though fully set forth herein.. Federal common law recognizes a breach of contract between contracting parties Plaintiff Huffman and Class Members and Defendant and Plaintiffs and Class Members entered into a uniform express contract as alleged in paragraphs through or in the alternative a uniform express and implied contract as alleged in paragraphs 0 through, under either of which Defendant agreed to timely deliver Plaintiff s and the Class Members bags to them upon their arrival at their destination and otherwise handle their bags with care so as not to lose or delay their bags; this was a material term of the contract. And, Plaintiff Huffman and the Class Members agreed to pay and did pay a baggage fee to Defendant.. Plaintiff Huffman and the members of the Class and Subclass have performed all conditions, covenants, and promises required to be performed on their part in accordance with the terms and conditions of the contract, except to the extent such performance was excused, released or waived by the actions, conduct or agreement of Defendant.. Defendant breached its contractual obligations under these contracts with Plaintiff Huffman and each member of the Class and Subclass by failing to timely deliver their baggage to Plaintiff Huffman and each member of the Class and Subclass upon their arrival at their destinations. In addition, such failure constitutes a failure of consideration. 0. As a direct and proximate result of Defendant s failure to timely deliver their baggage, Plaintiff Huffman and each member of the Class and USDC, ND, Case No.: CV-0-HRL

16 0 0 Subclass are entitled to a return of the consideration that they paid Defendant, in the form of their baggage fees. FIFTH CLAIM FOR RELIEF (Breach of the Covenant of Good Faith and Fair Dealing). Plaintiff Huffman on behalf of her self and the Class Members repeats and incorporates herein by reference each and every allegation in paragraphs through, and through, inclusive, as though fully set forth herein.. Implied in every contract is the covenant of good faith and fair dealing, which will be enforced if it does not contradict the express rights of the parties. Plaintiffs and Class Members entered into a uniform express contract as alleged in paragraphs through and in the alternative, a uniform express and implied contract as alleged in paragraphs 0 through, under either of which Defendant agreed to timely deliver Plaintiff s and the Class Members bags to them upon their arrival at their destination and otherwise handle their bags with care so as not to lose or delay their bags; this was a material term of the express contract. And, Plaintiff Huffman and the Class Members agreed to pay and did pay a baggage fee to Defendant.. Here, under the implied covenant, Defendant was obligated to refund the baggage fee if it did not timely deliver Plaintiffs and Class Members bags to them upon their arrival at their destination.. Plaintiff Huffman and the members of the Class and Subclass have performed all conditions, covenants, and promises required to be performed on their part in accordance with the terms and conditions of the baggage fee contract, except to the extent such performance was excused, released or waived by the actions, conduct or agreement of Defendant.. By failing to refund the baggage service fee, Defendant breached the covenant of good faith and fair dealing under both state and federal common law. USDC, ND, Case No.: CV-0-HRL

17 0 0. Defendant failed to refund the baggage fee to Plaintiff Huffman and each member of the Class and Subclass, despite having failed to deliver their baggage timely upon arrival at their destination. By failing to refund the baggage fees, Defendant breached the covenant of good faith and fair dealing.. As a direct and proximate result of Defendant s failure to timely deliver the baggage, Plaintiff Huffman and each member of the Class and Subclass are entitled to a return of the consideration that they paid Defendant, in the form of their baggage fees. SIXTH CLAIM FOR RELIEF (Unjust Enrichment). Plaintiff Huffman on behalf of herself and members of the Class repeats and incorporates herein by reference each and every allegation in paragraphs through, inclusive, as though fully set forth herein, pleading this Claim in the alternative to their breach of contract Claims, and will not seek to recover upon this Claim in the event they recovery on any contract Claim.. Plaintiff Huffman and each member of the Class conferred a benefit upon Defendant when they paid the baggage fees. Defendant acknowledged receipt of the benefit when it accepted the baggage fees. 0. By accepting the baggage fees, Defendant was enriched and its revenue increased, as was Defendant s intention. By accepting the baggage fees from customers, Defendant was obligated to deliver their baggage timely to them upon arrival at their final destination. This obligation was self-imposed be Defendant.. Defendant was unjustly enriched, however, when it retained the baggage fees paid by those passengers, including Plaintiff Huffman and each member of the Class, whose bags were delayed or lost while in the care of Defendant. By not refunding the baggage fees to such passengers, Defendant was USDC, ND, Case No.: CV-0-HRL

18 0 0 unjustly enriched under both state and federal common law.. As a direct and proximate result of the foregoing, Plaintiff Huffman and each member of the Class are entitled to disgorgement by Defendant of the baggage fees that they paid in an amount to be determined according to proof at trial. SEVENTH CLAIM FOR RELIEF (Intentional Misrepresentation). Plaintiff Huffman, on behalf of herself and members of the Class and Subclass repeats and incorporates herein by reference each and every allegation in paragraphs through, inclusive, as though fully set forth herein, pleads this Claim in the alternative to the breach of Express Contract Claim, and if that one succeeds will not seek to recover on this Claim.. At all times herein mentioned, Defendant represented to Plaintiff Huffman and each Class Member that an important fact was true, namely, that it would timely deliver their baggage to them upon their arrival at their destination. This representation was made to Plaintiffs: A. expressly in Defendant s TOT to provide on-time baggage delivery, make prompt refunds, and require the same service by US Airways Express partners and B. impliedly to deliver the baggage to the passenger upon his or her arrival at their destination when it: () made the offer to transport their bags at the time that they purchased their tickets or when the passenger arrived at the airport to travel with luggage in hand; () accepted their baggage fees; () assigned each passenger s bags to the passenger who checked them in and that passenger s itinerary; USDC, ND, Case No.: CV-0-HRL

19 0 0 () applied a baggage tag that contained a bar code and license plate linking it with the passenger s flight information including arrival time and destination; () had a system, custom and practice, of presenting their passengers with their baggage at the time of their arrival in a baggage pick-up area on a carousel or other specified location, along with the baggage of all others flying that customers flight; () implemented a system whereby a passenger could report a bag as being delayed or lost to a representative to document, or a computerized self-entry system; and () never informed them that it was not agreeing to deliver their baggage to them when they arrived at their destination. The true facts were that not all bags would be delivered timely and that some bags would be lost, and that in either event, upon a Class Member informing Defendant of the delay or loss, Defendant would not refund the baggage fee. These facts were known to Defendant and unknown to Plaintiff and Class Members. Failure to inform the Class Members of the true facts made the representations regarding baggage delivery materially misleading.. Defendant made these representations to Plaintiffs and Class Members with the intent that they rely upon on them in paying the baggage fees and they did reasonably rely upon them, as evidenced by their payment of the fees.. Defendant s conduct was a substantial factor in causing Plaintiffs and the Class Members subsequent harm.. When Plaintiff and the Class Members paid their baggage fee and Defendant failed to deliver their bags on time but did not refund their baggage fees, they were harmed in the amount of their baggage fees not refunded, to be proven at trial. USDC, ND, Case No.: CV-0-HRL

20 0 0 EIGHTH CLAIM FOR RELIEF (Negligent Misrepresentation). Plaintiff Huffman, on behalf of herself and members of the Class and Subclass, repeats and incorporates herein by reference each and every allegation in paragraphs through, inclusive, as though fully set forth herein, pleading this Claim in the alternative to the breach of Express Contract Claim, and if successful on that Claim will not seek to recover on this one. 0. At all times herein mentioned, Defendant represented to Plaintiff Huffman and each Class Member that an important fact was true, namely, that it would timely deliver their baggage to them upon their arrival at their destination. This representation was made to Plaintiffs: A. expressly in Defendant s TOT to provide on-time baggage delivery, make prompt refunds, and require the same service by US Airways Express partners and B. impliedly to deliver the baggage to the passenger upon his or her arrival at their destination when it: () made the offer to transport their bags at the time that they purchased their tickets or when the passenger arrived at the airport to travel with luggage in hand; () accepted their baggage fees; () assigned each passengers bags to the passenger who checked them in and that passenger s itinerary; () applied a baggage tag that contained a bar code and license plate linking it with the passenger s flight information including arrival time and destination; () had a system, custom and practice, of presenting their passengers with their baggage at the time of their arrival in a baggage pick-up area on a carousel or other specified location, along with the baggage of all others 0 USDC, ND, Case No.: CV-0-HRL

21 0 0 flying that customers flight; and () implemented a system whereby a passenger could report a bag as being delayed or lost to a representative to document, or a computerized self-entry system.. But, the true facts were that not all bags would be delivered timely and some bags would be lost, and that in either event, upon a Class Member informing Defendant of the delay or loss, Defendant would not refund the baggage fee. These facts were known or should have been known to Defendant and were not disclosed to Plaintiffs. This failure to inform made the representations regarding baggage delivery materially misleading. But, even if Defendant believed that the representations were true, Defendant had no reasonable grounds for believing the representations were true when Defendant made them.. Defendant made its representations to Plaintiffs and Class Members with the intent that they rely upon on them in paying the baggage fees and they did reasonably rely upon them, as evidenced by their payment of the fees.. Defendant s conduct was a substantial factor in causing Plaintiffs and the Class Members subsequent harm, which was foreseeable to Defendant.. When Plaintiff and the Class Members paid their baggage fee and Defendant failed to deliver their bags on time but did not refund their baggage fees, they were harmed in the amount of their baggage fees not refunded, to be proven at trial. PRAYER FOR RELIEF WHEREFORE, Plaintiff Huffman, and all others similarly situated, demand judgment against Defendant and pray for:. A permanent injunction enjoining Defendant, its officers, successors, agents, assigns, and all persons in active concert or participation with it, from retaining any baggage service fee paid by a domestic airline passenger traveling on USDC, ND, Case No.: CV-0-HRL

22 0 0 Defendant s airline when that passenger s baggage has been delayed or lost.. Order Defendant to make Plaintiff Huffman and each member of the Class whole by immediately refunding all baggage service fees charged for baggage that has been delayed or lost by Defendant.. Order Defendant to make an accounting of profits and/or expenses saved by their unlawful practices and to provide full restitution to Plaintiff Huffman and each member of the Class.. Order Defendant to make Plaintiff Huffman and each member of the Class whole by providing appropriate prejudgment and post-judgment interest. appropriate.. For costs and attorney s fees, as provided by law.. For any and all other relief the Court deems necessary, just or. For certification of the proposed Class pursuant to Fed. R. Civ. P... For a declaration that Defendant is financially responsible for notifying all Class members about this litigation.. For leave to amend these pleadings to conform to the evidence adduced during discovery and/or presented at trial. Dated this st day of January, 0. FOLEY BEZEK BEHLE & CURTIS LLP LAW OFFICE OF WILLIAM M. ARON By: /s/ Justin P. Karczag Thomas G. Foley, Jr. Roger N. Behle Justin P. Karczag William M. Aron Attorneys for Plaintiff and the Putative Classes USDC, ND, Case No.: CV-0-HRL

23 0 0 action. JURY DEMAND Plaintiff demands a trial by jury of all issues and claims so triable in this Dated this st day of January, 0 FOLEY BEZEK BEHLE & CURTIS LLP LAW OFFICE OF WILLIAM M. ARON By: /s/ Justin P. Karczag Thomas G. Foley, Jr. Roger N. Behle Justin P. Karczag William M. Aron Attorneys for Plaintiff and the Putative Classes USDC, ND, Case No.: CV-0-HRL