What’s with the Flying J surcharge?

by Sandi Soendker, Managing Editor and Amy Washburn, The Cullen Law Firm, PLLC

Isn't it a "thing of the past?"

On Feb. 1, 2000, the Tennessee Court of Appeals entered a summary judgment in favor of four OOIDA members; Laurel Barrick; Harold Landry; Richard Kershman and Jimmy Hux against Flying J, Inc. and Pilot Corporation truckstops; for the improper imposition of surcharges on fuel purchased with Visa and MasterCard credit cards. For more details, see "Surcharges..." in the March 2000 Land Line.

QUESTION I tried to use MasterCard at Flying J in Oak Grove, KY, and a surcharge of three cents was still imposed. What's the scoop? I thought the surcharges were a thing of the past?

Bob Elmore
Cheyenne, WY

ANSWER The easy answer is, unfortunately, there is no easy answer. It all relates back to the definition of a surcharge. Under the contracts at issue in OOIDA's litigation against the truckstops, they can charge more than the cash price - what they cannot do is charge more than the posted price (the price posted on the sign at the side of the road or on the pump). So, if they are posting the credit price and charging less for cash, that's a discount, and they can do that, under both the contract and federal law.

If they post the cash price and charge more for a credit purchase, that's a surcharge. Note that while surcharging is not illegal under any statute, it is a breach of their contract with the merchant bank. If they post a price and charge less than that price for cash and more than that price for credit, the cash discount is fine but the surcharge is not. But in that case, the damage done is the difference between the posted price and the surcharge amount, not the difference between the cash price and the surcharge amount.

From what some of OOIDA's members have been describing since the previous issue of Land Line, it looks like the practice at some Flying J and Pilot truck stops now is to post the credit price and let you know also that you will pay less if you pay cash. That's a discount, and that's OK. But if they only post the cash price and you pay more than that, that's a surcharge, and it's not OK.

QUESTION I read the proceedings on the Flying J and Pilot fuel charge for credit card use, but what I'm concerned about now is why American Express card users weren't involved in it, too. I used to fuel with my American Express card and was charged an extra three cents per gallon. Is anything going to be done about this problem or do I need to start a class action suit? I don't use my card anymore at these truckstops. I know of other people who also have been charged the surcharge.

Name withheld

ANSWER The American Express contracts do not contain the same "no-surcharge" provision that the VISA and MasterCard contracts contain. According to OOIDA's Chris West, however, the AMEX contract (which we have not seen) does have a provision that says that merchants accepting all three cards must treat purchases with AMEX in the same way they treat VISA and MC transactions. So, if the surcharge cannot be imposed on VISA and MC transactions, under the AMEX equality provision, it cannot be imposed on AMEX transactions either. Any injunction that we get from the Tennessee court regarding the VISA and MC transactions should therefore apply to AMEX transactions also, but there won't be refunds to AMEX users as a result of OOIDA's lawsuit.

QUESTION I was wondering if you could give me a little information on the final outcome of the lawsuit against Pilot and Flying J. I read the article in Land Line about the outcome of the lawsuit. I went to purchase fuel at the Pilot in Stanfield, OR. When I got ready to fuel I noticed a sign on the pump that read there was a three-cent charge for credit cards (Visa, Amex, MasterCard). I called in my info to get the pump turned on, when I did, the woman inside told me that there was a three-cent charge for credit cards (she said not to worry, it usually didn't amount to much). I purchased 50 gallons (enough to get to Montana and to get a free shower). I proceeded to go inside to pay for the fuel. To make a long story short, I argued with the manager about it. He stated that the lawsuit had been reworked by the attorneys so that they could charge the surcharge again. I paid the bill and left.

Mike Long, president
Left Lane Express, Inc.

ANSWER We believe the "reworking" of the lawsuit to which the Pilot employee referred is the petition for re-hearing that the truckstop chains filed with the Court of Appeals. The Court of Appeals granted the petition, and substituted a new opinion, in which the trial court is still reversed, but the individual plaintiffs were not granted summary judgment (which means we can either take it up on appeal to the Tennessee Supreme Court or go back to the Chancery Court and go forward with a trial in the case).

No injunction against the practice has been issued yet - the Court of Appeals remanded the case to the trial court. So, technically, Pilot and Flying J can impose surcharges - but doing so increases their damages in the long run.

In the meantime, we would advise truckers who are charged the surcharge to continue keeping receipts and take pictures of the price advertised on the pump and the signs whenever possible and forward those records to OOIDA for use as evidence in the litigation. n

Editor's note: Amy Irene Washburn is an attorney with the Cullen Law Firm PLLC in Washington, DC. The firm is OOIDA's legal counsel. Washburn and OOIDA General Counsel Paul D. Cullen Sr. are representing the plaintiff truckers in the litigation against Flying J.