By Bill Wichert

Law360 (August 21, 2020, 8:42 PM EDT ) Capital One Bank told a New Jersey federal court Friday that a cardholder received the refund she asked for as the bank sought to end her proposed class action over its alleged misrepresentations that customers could receive only travel vouchers for flights canceled due to the COVID-19 pandemic.

The bank urged the court to toss Ellen Fensterer's consumer fraud complaint on the grounds that her claims are moot since British Airways has provided the refund she sought in the action. Capital One processed that refund and credited her account for the cash and reward points she used to purchase plane tickets for a trip to Athens, Greece, the bank said.

The refund, which went through after Fensterer filed her initial suit, was "the product of British Airways' cancellation policies, not because Fensterer filed suit against Capital One," according to the bank's brief.

"Because Fensterer has now received a full refund paid by British Airways and processed by Capital One, she has no stake in a challenge to Capital One's purported failure to give her a refund," the brief said. "Nor would any decision on the merits of her claims for a refund affect her rights, because she already has been paid and her alleged injury has been redressed."

The timing of the refund also doesn't change the fact that the case should be dismissed as moot, Capital One argued.

Citing the Third Circuit's 1993 opinion in Rosetti v. Shalala , the bank said, "if developments occurring during the course of adjudication eliminate a plaintiff's personal stake in the outcome of a suit, then a federal court must dismiss the case as moot."

None of the narrow exceptions to that rule apply in the matter, the bank said. For instance, "a plaintiff can sometimes continue pursuing a claim if there is a 'reasonable expectation that' she 'will be subject to the same action again,'" the bank said, citing the Third Circuit's 2007 opinion in Rendell v. Rumsfeld .

"Fensterer makes clear there is no such expectation here," Capital One said. "In fact, she alleges the opposite: she wanted a refund because she bought tickets only 'to visit her child while she was studying abroad' and has no plans to travel 'for any other purpose in the future.'"

Fensterer said in an amended complaint that she used her Capital One Venture Card in January to purchase three British Airways tickets for an April 3-13 trip to visit her daughter in Athens. She charged about $4,906 to her card and used 18,214 reward points, court documents state. The flights were ultimately canceled as a result of the pandemic.

The complaint alleged that Capital One "made intentional misrepresentations to plaintiff and the class members regarding their inability to receive refunds for their cancelled travel and that the airline was only able to give travel vouchers."

"By misrepresenting that plaintiff and the class members were only entitled to travel vouchers, defendant financially damaged plaintiff and members of the class," the complaint said.

Fensterer is seeking to represent a proposed class of "all Capital One Venture Card holders in the state of New Jersey who purchased airline travel using their Capital One Venture Card for travel on flights that later were cancelled as a result of COVID-19 travel restrictions," the complaint said.

Besides the mootness argument, Capital One on Friday attacked Fensterer's New Jersey Consumer Fraud Act and related claims on various other fronts.

In fighting her CFA claim, for example, the bank noted that "she fails to explain how being told that she was only eligible for a voucher qualifies as an 'ascertainable loss.'"

"Fensterer does not identify any quantifiable or measurable loss. She alleges only that a voucher would be 'of no practical use' because she has no plans to travel in the future, that the vouchers 'included limitations and arbitrary deadlines for use,' and that travel risks 'make a travel voucher worth even less than it otherwise might be,'" Capital One said.

"Those conclusory assertions reflect Fenster's personal preference for a refund," the bank added.

Counsel for Fensterer did not immediately provide comment Friday. Counsel for Capital One did not immediately respond to a request for comment Friday.

Fensterer is represented by Amy L.B. 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 Haylee Pearl.

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