Monday, March 05, 2018

Falsity claim isn't the ticket for cancelled concert

Universal Attractions, Inc. v. Live Nation Entertainment, Inc., 2018 WL 1089747, No. 17 Civ. 3782 (S.D.N.Y. Feb. 12, 2018)

Universal, an entertainment company, produced the I Love the 90’s tour, a series of concerts by various artists from the 1990s. Universal engaged promoters throughout the US to work with Ticketmaster to market and sell tickets to the show. Prices for the tickets ranged from “the low $20s to hundreds of dollars depending on seating and perks offered[.]” For the Vina Robles Amphitheatre in Paso Robles, tickets were priced to be sold for $65, $75, and $150, along with a group of VIP tickets set to be sold for the PR Venue, which ranged from $250 to $375 per ticket.

Ticketmaster sold tickets in two phases: pre-sales (before availability to the general public) and general sales.   For pre-sales, “a select group of consumers were given codes through e-mail, social media, or other means that could then be used to unlock the relevant pre-sales offer.”  For at least two venues, Ticketmaster only listed VIP tickets in the pre-sale period; those with the codes could access and buy the cheaper tickets, but members of the general public only saw the VIP tickets.  As a result, Universal alleged, fans were “turned off” and the number that left Ticketmaster’s site without purchase was uniquely high, and the conversion to sales was uniquely low.  The Pasa Robles operator ultimately cancelled the show due to the lower than expected volume of ticket sales.

The court rejected Universal’s argument that Ticketmaster deceived members of the general by presenting them with only the VIP tickets during presales, causing them to leave without purchasing any tickets and not return because they believed that the VIP ticket prices were the only ones available.  Failing to disclose information isn’t literally false, and it isn’t misleading unless it renders any affirmative statements false or misleading. But “the lack (or presence) of tickets at prices lower than the VIP tickets on Ticketmaster’s website during presales has no bearing whatsoever on the veracity of the VIP ticket prices themselves.” 

This reasoning seems to me to avoid the challenge of Universal’s argument, which is that the list of available tickets for a particular show implicitly (mis)represents that these are not just the available tickets, but the full range of tickets that will be available, especially for members of the general public who believe, correctly, that they can’t buy tickets at present.  That is, the listed prices implicitly represent that these are the only sets of tickets which members of the public may be able to buy once general sales begin.  Thus, the listed prices became misleading because of the context.   That is certainly plausible—most events, after all, want you to come, and it seems logical that they’d advertise the cheap available tickets if there were any to be had.  Sufficient disclosure could have come in other ways than in listing all the different prices that tickets would be available at in the future, though that’s one way to do it.  But the key point, reinforced by the alleged behavior of consumers in not bothering to return to the site after sales began, is that ticket-buying consumers presume that information about what tickets will be available when the sales begin is complete information.

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