O/O's WIN SUIT AGAINST FLYING J AND PILOT

OOIDA PRESS RELEASE

Surcharges on credit purchases of diesel fuel a thing of the past
Owner-operators win suit against Flying J and Pilot over credit card surcharges

Feb. 8, Grain Valley, MO -- On Feb. 1, 2000, the Tennessee Court of Appeals entered summary judgment in favor of OOIDA members Laurel Barrick, Harold Landry, Richard Kershman, and Jimmy Hux against Flying J, Inc. and Pilot Corporation truck stops for the improper imposition of surcharges on fuel purchased with Visa and MasterCard credit cards. The lawsuit, filed by OOIDA and four individual members, seeks damages and an injunction to stop the truck stops' practice of charging more for diesel fuel when truckers used MasterCard or Visa credit cards. The contract created by the credit card companies, the banks, and the merchants specifically included the promise not to impose surcharges on credit card purchases, and the complaint alleges that the cardholders should be able to enforce the promises made in those contracts (see December/January 2000 issue of Land Line).

"This is an important victory for truckers' rights," said Jim Johnston, president of OOIDA. "There are very few places where merchants attempt to impose surcharges on credit transactions. Truck stops like Flying J and Pilot must learn to respect the rights of their customers - the small business trucker."

Noting that the truck stops did not dispute the fact that surcharges had been imposed, the court found that Flying J and Pilot are liable for the claims of the trucker cardholders. In finding that the plaintiff truckers have standing to bring the action as MasterCard and Visa cardholders, the appellate court stated:

With respect to the merchants (Pilot and Flying J) we think that the truckers were clearly third-party beneficiaries of the merchants' contract with the merchant bank [EFSNB]. In that agreement the merchants said in effect, "We promise not to add a surcharge to purchases made with your credit cards." Only if the merchants now say "Well, we never intended to keep that promise" can they escape the conclusion that the benefit of the agreement was intended for the card holders. They do not insist that they were that cynical.

According to Paul D. Cullen, Sr., OOIDA's general counsel, "the appellate court's grant of summary judgment against truck stops represents an important new application of the third-party beneficiary doctrine to credit cardholders on a class-wide basis." Cullen went on to note that "the appellate court's ruling means that the cardholders, such as the individual truckers who are plaintiffs in this action, are intended to benefit from the merchants' promises not to impose surcharges on credit transactions and can therefore enforce those promises."

Although holding that OOIDA lacked standing to be a plaintiff, the appellate court ruled that OOIDA could "continue to support its members in their attempt to obtain redress." Johnston added that OOIDA will continue to support the interests of the small business trucker regardless of whether or not the courts permit OOIDA to join as a party to individual suits. The parties have until Mar. 31, 2000, to seek review of the Court of Appeals' decision by the Supreme Court of Tennessee.

Assuming no further appellate review, the case has been returned to the Chancery Court of Williamson County for class certification and a determination of the amount of damages to be awarded to individual truckers who had surcharges imposed on credit transactions by Flying J or Pilot.

"All MasterCard or Visa cardholders who purchased diesel fuel from either Pilot or Flying J will have a right to a refund of such surcharges once class certification is made by the trial court following remand," said Cullen.

Paul D. Cullen, Sr. and Amy Irene Washburn, attorneys of The Cullen Law Firm, PLLC in Washington, DC, are representing the plaintiff truckers in this litigation.

Revised:
April 09, 2000 03:09 PM