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Law360 (September 22, 2020, 5:37 PM EDT ) A Capital One cardholder urged a New Jersey federal judge Tuesday not to toss her proposed class action that claims the bank misled customers about eligibility to receive travel vouchers for flights canceled amid the COVID-19 pandemic, saying despite what the bank says, the case isn't moot.
Capital One Bank (USA) NA told the judge in August that the case should be nixed because the company refunded plaintiff Ellen Fensterer the money for her canceled flights, but she said Tuesday that she hasn't been made whole, and even if she had, she could still lead the proposed class.
"Capital One cannot avoid the instant class action by attempting to 'pick off' Ms. Fensterer as class representative," the memo opposing the motion to dismiss said.
Fensterer had bought three tickets to travel on British Airways between New York and Athens, Greece, with flights on April 3, 2020, and April 13, 2020, using Capital One Venture Card Rewards to charge $4,906, according to the complaint.
When the flights were canceled due to the pandemic, a Capital One Venture Travel customer service representative told her that British Airways was only offering travel vouchers valid through Jan. 9, 2021.
Capital One Venture Travel, Fensterer said Tuesday, intentionally kept customers on hold for hours, and told customer service representatives to "furnish misleading information in hopes of confusing consumers and reducing and/or avoiding issuance of refunds" that travelers were entitled to for flights canceled due to the pandemic.
Customer service representatives lied so that customers would accept re-bookings "instead of pressing for a refund," she contended.
"Plaintiff and class members reasonably believed they would receive refunds when the flights, purchased through defendant were cancelled," Tuesday's filing said. "However, defendant informed plaintiff it would not be providing refunds."
Fensterer says British Airways said they couldn't help her because the tickets were purchased through Capital One, not the airline directly. She contacted Capital One again and learned that neither her rewards points, nor credit card charges for the tickets would be refunded, she alleges.
While Capital One argued Fensterer's claims are moot because she received a refund from the bank, she said Tuesday, "nothing in plaintiff's amended complaint states anything about such a refund. In support of that contention, defendant relies on its own affidavit which is outside the four corners of the complaint."
Fensterer doesn't concede that all her money was refunded. But even if she did, she argued, she "still has a concrete interest in the outcome of litigation" because her "damages go beyond the cash price of the airline tickets."
She seeks damages for fees, taxes and interest that Capital One charged, as well as treble damages and attorneys fees and costs.
Even if she was refunded, the proposed class action could still proceed with her as class representative, the filing argued. She could travel in the future, "making this situation capable of repetition," she said.
Counsel for the parties didn't immediately respond to requests for comment Tuesday.
Fensterer is represented by Amy L. Bennecoff Ginsburg of Kimmel & Silverman PC.
Capital One is represented by Philip A. Goldstein, Bryan A. Fratkin and Seth A. Schaeffer of McGuireWoods LLP.
The case is Ellen Fensterer v. Capital One Bank (USA) NA, case number 1:20-cv-05558, in the U.S. District Court for the District of New Jersey.
--Editing by Brian Baresch.
For a reprint of this article, please contact reprints@law360.com.
