Nestlé Wants Fuel Surcharge Class Action Moved to Federal Court

Nestlé has asked for a class action lawsuit alleging the company hit water customers with an unfair and fraudulent fuel surcharge to be moved to federal court in New Jersey.

Lead plaintiff John Gumersell alleged in his class action lawsuit filed in New Jersey state court earlier this year that Nestlé included an unfair fuel surcharge for water customers.

The plaintiff claims that of the millions of dollars in fuel surcharges Nestle has received, none of the proceeds have been used to offset fuel costs. Gumersell says that makes the surcharge fraudulent and Nestlé has violated state consumer fraud laws.

In its notice removing the class action to federal court, Nestlé argues that the case meets the criteria for a federal court to hear it. Nestlé points out that the amount in controversy, or the proceeds from the fuel charges it received, is greater than $5 million. Additionally, the proposed Class Members reside in a number of states, making federal court the more appropriate place to hear the class action, says Nestlé.

According to the class action complaint, Nestlé is the largest producer of bottled water in the world and its principal place of business is in Connecticut. The company delivers bottled water to companies and individuals in exchange for a set rate. However, the plaintiff contends that an additional fee, called “Fuel Surcharge,” began showing up on the bills of New Jersey Nestlé water customers in 2011.

Gumersell, a New Jersey resident, says he paid for water and other beverage delivery service from Nestlé, but started noticing that he was being assessed a “Fuel Surcharge” by the company.

The plaintiff argues that the fuel surcharge is deceptive and fraudulent for several reasons. First, according to the complaint, the proceeds from the surcharge are not used to offset fuel costs. Additionally, the plaintiff alleges that fuel costs are already worked into the service fee charged by Nestlé.

“In actuality, the ‘Fuel Surcharge’ is unrelated to Nestlé’s actual or increased fuel costs, and certainly is not charged to defray those increased costs,” Gumersell claims.

Further “[t]he ‘Fuel Surcharge’ does not vary or fluctuate in accordance with Nestlé’s actual increased fuel costs and the method by which Nestlé determined the fuel surcharge has no relation to its increased fuel costs or any changes in those costs,” the Nestle class action states.

The plaintiff contends that his claims only arise under New Jersey state law and that he “makes no claims under Federal Law.”

The plaintiff seeks to represent a Class of New Jersey residents and businesses who paid Nestlé for the fuel surcharge starting in 2011. The plaintiff is seeking damages on behalf of himself and his proposed Class, including repayment of the allegedly fraudulent fuel surcharges, along with attorneys’ fees and costs. The plaintiff also seeks a declaration from the state court that the fuel surcharge practices are deceptive or unfair trade practices.

Gumersell is represented by Taylor C. Bartlett and Maureen V. Abbey of Heninger Garrison Davis LLC.

The Nestlé Fuel Surcharge Class Action Lawsuit is Gumersell v. Nestlé Waters North America Inc., Case No. 3:17-cv-01516-FLW-DEA, in the U.S. District Court for the District of New Jersey.