                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 5 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 JANET SOBEL and DANIEL DUGAN,                   No.    14-17349
 PhD.,
                                                 D.C. No.
                 Plaintiffs-Appellees,           3:06-cv-00545-LRH-RAM

   v.
                                                 MEMORANDUM *
 HERTZ CORPORATION,

                 Defendant-Appellant.



 JANET SOBEL and DANIEL DUGAN,                   No.    14-17408
 PhD.,
                                                 D.C. No.
                 Plaintiffs-Appellants,          3:06-cv-00545-LRH-RAM

   v.

 HERTZ CORPORATION,

                 Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                    Argued and Submitted December 12, 2016

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.


         Hertz Corporation (Hertz) appeals the district court’s orders (1) holding that

Hertz violated Nevada Revised Statutes § 482.31575,1 (2) awarding restitution and

prejudgment interest as remedies for the statutory violation, (3) holding that Hertz

was liable for unjust enrichment, (4) rejecting Hertz’s argument that § 482.31575

violates the First Amendment, (5) rejecting Hertz’s argument that the voluntary

payment doctrine applies as an affirmative defense in this case, and (6) certifying

the class. Plaintiffs Janet Sobel and Daniel Dugan (plaintiffs) cross-appeal the

district court’s dismissal of its Nevada Deceptive Trade Practices Act (DTPA)

claim. For the following reasons, we REVERSE the district court’s holdings that

Hertz violated § 482.31575 and is liable for unjust enrichment. We VACATE the

district court’s restitution and prejudgment interest awards, and its holdings on

Hertz’s First Amendment and voluntary payment doctrine defenses. We AFFIRM

the district court’s orders certifying the class and dismissing plaintiffs’ DTPA

claim.

         “[W]hen a statute is facially clear, [we] should not go beyond its language in

determining its meaning.” Nev. State Democratic Party v. Nev. Republican Party,


1
  Section 482.31575 was amended in 2009. Unless otherwise indicated, all
references to § 482.31575 are to the pre-2009 version, enacted in 1989.

                                            2
256 P.3d 1, 5 (Nev. 2011). Section 482.31575 provided:

      A short-term lessor shall advertise, quote and charge a rate for
      leasing a passenger car that includes the entire amount except the
      taxes, any fees paid to airports and any charges for mileage, that
      a short-term lessee must pay to lease the car for the period to
      which the rate applies.

Hertz “unbundled” Airport Concession Recovery Fees (ACRFs) from its base

rental rates, and it argues that this practice was permissible because ACRFs are

“any fees paid to airports.” Plaintiffs argue, and the district court held, that this

practice violated § 482.31575 because ACRFs are not “any fees paid to airports”

within the meaning of the statute. The district court and plaintiffs point to

perceived limitations on the types of fees included in “any fees paid to airports,”

such as whether the fees are imposed on a per-customer basis or as a percentage of

gross revenue, or whether the fees are imposed by ordinance or contract.

However, the statute is clear on its face; it covers any fees paid to airports, without

limitation. Thus, to determine whether a charge falls into the airport fees

exception, we need only ask (1) is it a fee?, and (2) is it paid to airports? For

ACRFs, the answer to both questions is yes. ACRFs have been recognized by the

Nevada legislature as fees, see, for example, § 482.313(8)(g) (2003), and Hertz

paid ACRFs to airport authorities. Pursuant to the unambiguous language of the



                                            3
statute, Hertz did not violate § 482.31575.

      Because there was no statutory violation, we vacate the district court’s

restitution and prejudgment interest awards. Further, we vacate the district court’s

holdings on Hertz’s affirmative defenses (First Amendment and the voluntary

payment doctrine) because consideration of those defenses is no longer necessary.

      We also reverse the district court’s holding that Hertz was unjustly enriched.

“Unjust enrichment exists when [1] the plaintiff confers a benefit on the defendant,

[2] the defendant appreciates such benefit, and [3] there is acceptance and retention

by the defendant of such benefit under circumstances such that it would be

inequitable for him to retain the benefit without payment of the value thereof.”

Certified Fire Prot., Inc. v. Precision Constr., Inc., 283 P.3d 250, 257 (Nev. 2012)

(internal quotation marks omitted). The district court based its liability finding on

the premise that “Hertz benefitted from an unjustified windfall,” as it “was without

legal power to collect the unbundled ACRF.” Because we hold that Hertz had

legal power to collect the unbundled ACRFs, Hertz did not receive an “unjustified

windfall.” It would not be inequitable for Hertz to retain the benefit, because Hertz

fully disclosed all rental charges to plaintiffs and passed the ACRFs to the airport

authorities as required.

                                          4
      The district court did not abuse its discretion in certifying the class. Hertz

challenges certification on (1) predominance of common issues, and (2) adequacy

of class representatives. As to the first ground, the district court did not abuse its

discretion in concluding that common questions of law or fact predominate over

individual issues. See Fed. R. Civ. P. 23(b)(3). The case primarily concerns a

question of law common to all; namely, whether Hertz’s rental rate disclosures

violated § 482.31575. As to the second ground, the district court did not abuse its

discretion in concluding that Sobel and Dugan’s previous professional connections

with class counsel were not so extensive as to make them inadequate

representatives. Because we affirm class certification, the class certified by the

district court is bound by our holdings, including that Hertz did not violate

§ 482.31575 and was not unjustly enriched.

      On cross-appeal, we affirm dismissal of plaintiffs’ DTPA claim. Plaintiffs’

claim requires a finding that Hertz knowingly violated § 482.31575. See

§§ 41.600, 598.0923(3). Because Hertz did not violate § 482.31575, this claim

fails. Moreover, as the district court found, Hertz’s practices were not misleading

within the meaning of the DPTA because Hertz quoted a rate including the ACRFs

when plaintiffs made reservations, and did not increase the fees beyond the initial

                                           5
quote. Thus, any alternative theories of liability for deceptive trade practices under

the DPTA that plaintiffs advance fail, because Hertz did not engage in deceptive

practices.

      Each party shall bear its own costs on appeal.

      REVERSED IN PART, VACATED IN PART, AND AFFIRMED IN

PART.




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