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1 STATE OF MINNESOTA COUNTY OF HENNEPIN AMY JOHNSON, on behalfofherselfand all others similarly situated, Plaintiff, vs. BP AMERICA, INC., a Texas corporation, and CALHOUN BEACH ENTERPRISES, INC. d/b/a CALHOUN BEACH AUTOMOTIVE, individually and as representative ofa defendant class, DISTRICT COURT FOURTH JUDICIAL DISTRICT Case Type: Other Civil (14) Court File No Judge: CLASS ACTION COMPLAINT AND JURY DEMAND _ Defendants. Plaintiff, on behalf of herself and other similarly situated individuals, by and through her undersigned counsel, files this Class Action Complaint l and avers as follows: NATURE OF ACTION I. This is a Class Action Complaint brought to obtain monetary and equitable relief on behalf of a class of individuals who purchased car wash certificates from BP America, Inc. ("BP") at any of its various retail locations in the State of Minnesota, including Calhoun Beach Enterprises, Inc. BP car wash I This action was originally filed in the United States District Court for the District of Minnesota. Plaintiff initially alleged violations of federal and Minnesota law. Plaintiff has removed the federal cause ofaction from this lawsuit thereby eliminating the federal jurisdiction.

2 certificates are sold and issued by BP and its franchisees and include expiration dates that are deceptive and illegal under Minnesota law. Plaintiff alleges violation ofminn. Stat Defendant BP is a North American subsidiary of BP PIc.; it operates automotive service retail outlets throughout the United States. At many locations, BP offers self-serve automated car washes to its customers. Upon information and belief, Defendant BP requires that BP car washes and service stations (including Defendant Calhoun Beach Enterprises, Inc.) participate in a marketing plan that includes, but is not limited to, the BP logo and brand colors displayed throughout the station premises and BP marketing materials (including car wash advertisements) are displayed on fuel pumps. 3. Defendant Calhoun Beach Enterprises, Inc. is a Minnesota corporation and BP franchisee that uses BP's business model and trademarks and offers self-serve automated car washes to its customers. 4. BP car wash facilities 2 utilize numeric access codes to verify that a customer has purchased a car wash service. When a customer purchases a car wash, either at an electronic gasoline pump or from a clerk, the customer receives a receipt with a car wash access code. The customer then drives his or her car to the car wash entrance and inputs the access code into an electronic controller; the customer receives the car wash service once the electronic controller verifies the access code. 2 "BP car wash facilities" and "BP car wash" refer to self-serve automated car washes operated by BP or Calhoun Beach Automotive. 2

3 5. The access code printed on the customer's receipt is valid for only a very short period oftime that is typically several days long. The expiration date ofthe access code is printed on the receipt. The receipt and access code constitute a gift certificate under Minnesota law because it is a tangible record evidencing a promise, made for consideration, by the issuer of the record that services will be provided to the receipt's owner. 6. Upon information and belief, Defendant BP and Defendant Calhoun Beach Automotive sell and issue gift certificates with illegal expiration dates knowing that many consumers will not use the gift certificate prior to its expiration date, and most consumers will not know to take action to enforce the transaction. Defendants collect a monetary windfall from the sale of gift certificates that are not redeemed before expiration, which is precisely the type of harmful business conduct that the Minnesota Legislature intended to prohibit. 7. Minnesota Statutes section 325G.53 prohibits the sale and issuance ofgift certificates with an expiration date ofany kind. 8. The chief author ofthe law, Representative Joe Atkins has recently stated in a February 22, 2012 Pioneer Press article, "Yes, a carwash receipt like the one described in your article falls under (Minnesota Statutes Section) 325G.53. Notably, this is not just my conclusion, but the conclusion of nonpartisan House research staffas well." 9. This action challenges the legality of BP's car wash access code expiration policy in light ofminnesota law. Plaintiff seeks damages and equitable relief on behalf of herself and the Class, including but not limited to 3

4 compensatory and punitive damages; an order enjoining Defendants from selling and issuing gift certificates with expiration dates; Plaintiffs reasonable attorneys' fees, costs and expert fees; and any additional relief that this Court determines to be necessary or appropriate to provide complete reliefto Plaintiffand the Class. PARTIES 10. Plaintiff Amy Johnson is, and has been, a resident of Hennepin County at all times relevant to this lawsuit. Plaintiff purchased a car wash certificate from BP at Calhoun Beach Automotive, one of its retail partners. The car wash certificate that Plaintiff purchased was subject to an expiration date of 30 days. 11. Defendant BP is a wholly owned subsidiary of BP, PIc., one ofthe largest energy companies in the world. Upon information and belief, Defendant BP operates thousands ofretail outlets (gas stations) throughout the United States, many of which are located in the State of Minnesota and Hennepin County. Upon information and belief, thousands of Minnesota consumers purchase car was certificates from BP each year. 12. Defendant Calhoun Beach Enterprises, Inc. does business as Calhoun Beach Automotive and prominently holds itself out to be a BP automotive service retail outlet. Defendant Calhoun Beach Enterprises participates in Defendant BP's marketing plan such an extent that, to an ordinary consumer, it is virtually impossible to determine that the retail outlet is not owned 4

5 by Defendant BP. Defendant Calhoun Beach Enterprises, Inc. is located at 3012 Excelsior Blvd, Minneapolis, Minnesota. JURISDICTION AND VENUE 13. Plaintiff purchased the gift certificate at issue in this litigation in Hennepin County, State of Minnesota. 14. The acts or omission that give rise to this lawsuit occurred in the State of Minnesota and the cause of action arises under Minnesota Statutes, Law, and Rules. 15. Defendant BP transacts business in this judicial district and throughout the State ofminnesota and has its principal place ofbusiness in Texas. 16. Defendant Calhoun Beach Automotive is a Minnesota corporation located at 3012 Excelsior Blvd., Minneapolis, MN Plaintiff purchased a car wash gift certificate from Calhoun Beach Automotive on November 12, 2011 and the certificate expired on December 12, This court has jurisdiction over the parties pursuant to Minn. Stat and Venue is proper in this judicial district because Defendant transacts business in this judicial district, and Defendant BP is subject to personal jurisdiction in this judicial district, and therefore is deemed to reside in the judicial district within this State. Most of the acts and transactions alleged herein occurred in this judicial district. 5

6 19. This Court is appropriate for this litigation of the claims of all members of the proposed class because Defendant BP conducts business in this judicial district and most of the managers whose conduct gives rise to this action office in this judicial district. Additionally, Defendant Calhoun Beach Enterprises is a citizen of Minnesota with its principal place of business in Hennepin County. Minnesota law governs this action and no other state's governmental policies or interests with the litigation outweigh those ofthis State. FACTUAL BASIS 20. Defendant BP and Defendant Calhoun Beach Automotive jointly offer car wash services at their retail locations throughout the State ofminnesota. 21. Most customers, including Plaintiff, purchase car wash services from Defendants at an electronic gasoline pump after fueling their vehicle. Other customers purchase car was services from Defendants from a store clerk inside the retail location using an electronic point ofsale system. In either case, after the customer pays for the service, he or she receives an access code printed on a car wash certificate receipt The access code printed on the car was certificate is subject to an expiration date thirty days after purchase. 3 Additionally, Defendants offer customers without a car wash access code the ability to purchase a car wash using a payment device located at the entrance of the car wash. These purchasers are excluded from the class definition because they did not purchase a car wash access code. 6

7 23. Upon information and belief, Defendant BP is responsible for dictating the car wash code expiration policy employed at BP car washes throughout Minnesota. Defendant BP collects a fee or royalty from each car wash sold. 24. A valid access code is required to activate the car wash machine and receive a car wash. 25. If a consumer attempts to enter an expired access code, the car wash controller unit rejects the code and does not permit the customer to enter the car wash stall. 26. Often, consumers cannot redeem the car was certificate before the expiration date imposed by Defendants. This results in a substantial windfall for Defendants. 27. On or about November 12, 2011, Plaintiff Amy Johnson purchased a car wash certificate from a gas station operated by Defendant BP and Defendant Calhoun Beach Enterprises, Inc. located at 3012 Excelsior Blvd., Minneapolis, MN Plaintiffpaid $12.00 for the car wash certificate. 29. The car wash certificate stated that the access code expired on December 12, Plaintiff was unable to use the car wash certificate until after December 12, Plaintiff returned the gas station at which she purchased the car was certificate and attempted to redeem the certificate for a cash wash on or about 7

8 December 19,2011. The controller did not accept her access code and displayed a notice that the car wash certificate expired on December 12, Plaintiff did not receive the car wash service for which she paid. CLASS ACTION ALLEGATIONS 32. Plaintiff brings this action as a class action pursuant to Rule 23 of the Minnesota Rules of Civil Procedure on behalfofa class defined as follows: All individuals who purchased a car wash access code with expiration date shorter than five years from a BP retail outlet in Minnesota on or after August 1, Plaintiff reserves the right to redefine the class pnor to class certification, including the addition of subclasses, if discovery and further investigation reveal that the Class should be modified. 33. Numerosity: Members of the proposed class are so numerous that their individual joinder is impracticable. The precise number of members is unknown to Plaintiff at this time. However, upon information and belief, it is several thousand individuals. The true number of proposed class members is, however, likely to be known by Defendants, and thus, class members may be notified of the pendency of this action by first class mail, electronic otice, and published notice. 34. Commonality: There are numerous questions of law and fact common to Plaintiffand the proposed class; those questions predominate over any questions that may affect individual Class members, and include the following: 8

9 34.1. whether a car wash certificate is a gift certificate under Minnesota law; whether Defendants sold gift certificates subject to illegal expiration dates; whether Defendants' imposition ofexpiration dates on car wash certificates violates Minnesota law; whether Plaintiff and the Class are entitled to compensatory damages, including actual and statutory damages and attorneys' fees; and Whether Plaintiff and the Class are entitled to declaratory, injunctive, or equitable relief. 35. Typicality: Plaintiffs claims are typical of the other members of the proposed class. Plaintiff is informed and believes that Defendants imposed illegal expiration dates on car wash certificates purchased by all members of the proposed class. 36. Adequacy: The named Plaintiff will adequately represent the interests of the proposed class. She has been treated in the same manner as other proposed class members by Defendants and has been damaged by this treatment in the same manner as other proposed class members by Defendants' imposition ofillegally short expiration dates. Plaintiff is committed to vigorously prosecuting this action and Plaintiff has retained attorneys who are well qualified to handle lawsuits of this type. Plaintiff has no interests that are adverse to those of the proposed class. 9

10 37. Predominance: This case should be certified as a class action because the common questions of law and fact concerning Defendants' liability for unredeemed car wash certificates predominate over any other issues. 38. Superiority: A class action is the only realistic method available for the fair and efficient adjudication ofthe claims ofthe proposed class. The expense and burden of individual litigation makes it impracticable for members of the proposed class to seek redress individually for the wrongful conduct alleged in this Complaint. Were each individual member required to bring a separate lawsuit, the resulting multiplicity ofproceedings would cause undue hardship and expense for the litigants and the Court, and create the risk of inconsistent rulings, which would be contrary to the interest of justice and equity. Litigating these claims in a single action will streamline discovery and avoid needless repetition of evidence at trial. Additionally, the small value of individual damages makes individual litigation economically unfeasible because amount of recovery would be eclipsed by the expense oflitigation COUNT ONE Violation ofminn. Stat Plaintiff incorporates by reference all proceeding paragraphs as if set forth herein. 40. Section states, in pertinent part: It is unlawful for any person or entity to sell a gift certificate that is subject to an expiration date or a service fee of any kind, including, but not limited to, a service fee for dormancy. 10

11 The statute defines a "gift certificate" as "a tangible record evidencing a promise, made for consideration, by the seller or issuer ofthe record that goods or services will be provided to the owner ofthe record to the value shown in the record..." 41. The car wash certificate and access code is a gift certificate because it is a tangible record in the fonn ofa paper receipt evidencing a promise to provide car wash service made for the consideration of a cash payment by the owner, operator, or licensorofthe car wash service and machine. 42. Defendants violated section 325G.53 each time they sold a car wash certificate to Plaintiff or any member of the Class because all car wash certificates issued by Defendantscontain expiration dates. 43. The legislative policy ofthe Minnesota law, as stated by State Rep. Joe Atkins, the bill's chiefauthor is: Expiration dates and fees eroded the value of [gift certificates], sometimes leaving the recipient with nothing. That's why we needed this law. By putting an end to gift card expiration dates and onerous fees, we made sure Minnesota consumers are getting what they paid for. 44. As a direct result of Defendants' violations of law as described herein, Plaintiff and the Class have suffered actual harm and seek recovery as provided by Minn. Stat. 8.31, including but not limited to all damages recoverable at law and attorneys' fees and costs. 11

12 PRAYER FOR RELIEF 45. WHEREFORE, Plaintiff requests ofthis Court the following relief on behalfofherselfand all members ofthe proposed class: An Order certifying the proposed class, appointing Plaintiff as Class Representative, and appointing the undersigned counsel ofrecord as Class Counsel; An Order declaring the Defendant's practices and policies to be illegal and enjoining the further sale of car wash access codes with expiration dates; An Order requiring Defendant to compensate Plaintiff and the other members of the proposed class for the value of unused car washes; Payment of any penalties or other amounts under any applicable laws, statutes or regulations; Judgment in favor ofeach class member for damages suffered as a result of the conduct alleged herein, to include prejudgment and post-judgment interest; Award Plaintiffs reasonable attorneys' fees and costs; and Grant such other and further legal and equitable relief as this Court deems just and necessary. 12

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