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Bourgeois v. Live Nation Entm't, Inc.

United States District Court, D. Maryland

March 10, 2014

ANDRE BOURGEOIS, Plaintiff,
v.
LIVE NATION ENTERTAINMENT, INC., et al., Defendants

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[Copyrighted Material Omitted]

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For Andre Bourgeois, On behalf of himself and a Class of others similarly situated, Plaintiff: Benjamin Howard Carney, LEAD ATTORNEY, Martin Eugene Wolf, Richard S Gordon, Gordon and Wolf Chtd, Towson, MD.

For Live Nation Entertainment, Inc., Defendant: James D Mathias, LEAD ATTORNEY, DLA Piper LLP US, Baltimore, MD; Melissa Rubin Roth, LEAD ATTORNEY, Robert J Mathias, DLA Piper U.S. LLP, Baltimore, MD.

For Monumental Ticketing Limited Partnership, Defendant: Heather T Mowell, WilmerHale, Washington, DC; Patrick J Carome, PRO HAC VICE, Wilmer Cutler Pickering Hale and Dorr, Washington, DC.

For Lyric Productions, LLC, d/b/a Lyric Opera House, Defendant: Lawrence Joseph Quinn, LEAD ATTORNEY, Kelly M Marzullo, Tydings and Rosenberg LLP, Baltimore, MD.

OPINION

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MEMORANDUM OPINION

Ellen Lipton Hollander, United States District Judge.

Andre Bourgeois, plaintiff, on behalf of himself and a proposed class of others similarly situated, filed suit against Live Nation Entertainment, Inc. (" Live Nation" ); its licensee, Monumental Ticketing Limited Partnership (" Monumental" ) (collectively with Live Nation, " Ticketmaster" ); and Lyric Productions, LLC, d/b/a Lyric Opera House (the " Lyric" ), defendants.[1] The Lyric operates the Arthur and Patricia Modell Performing Arts Center. The litigation is rooted in plaintiff's purchase of a ticket in 2009 through Ticketmaster's website for a concert held at the Lyric; plaintiff was charged $52 for the ticket and an additional $12 in " service charges."

In particular, plaintiff now challenges the legality of Ticketmaster's collection of such " service charges" in connection with its sales of tickets to entertainment events in Baltimore City (hereinafter sometimes referred to as " Baltimore" or the " City" ). For events held at the Lyric, Ticketmaster remits a portion of the " service charges" to the Lyric, pursuant to a Facility Agreement.[2]

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The Complaint contains ten counts. Generally, plaintiff asserts three substantive allegations of wrongdoing. First, plaintiff contends that Ticketmaster's collection of service charges violates two provisions of the Baltimore City Code. Second, plaintiff alleges that Ticketmaster engaged in fraud and/or misrepresentation by falsely representing that the service charges it collected were legal. Third, plaintiff alleges that Ticketmaster engaged in fraud and/or misrepresentation by concealing and/or failing to disclose that it remits to the Lyric a portion of the service charges it collects.

The first four counts, asserted against all defendants, are as follows: (I) " Money Had and Received" ; (II) " Negligent Misrepresentation" ; (III) " Violation of the Maryland Consumer Protection Act", Md. Code (2005 Repl. Vol., 2011 Supp.), § § 13-101 et seq. of the Commercial Law Article (" C.L." ); and (IV) " Deceit by Non-Disclosure or Concealment" . The other six counts allege claims against various combinations of the defendants for violations of several provisions of the federal Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. § § 1961 et seq. [3] In particular, Bourgeois alleges that Ticketmaster represented that the $12 fee it charged Bourgeois was for its services when, in reality, a portion of that $12 was " secretly" remitted to the Lyric as an undisclosed " kickback."

Initially, each defendant moved to dismiss for failure to state a claim, see ECF 18, 19, 21, while plaintiff moved to certify questions of law to the Maryland Court of Appeals. ECF 25. All of the motions were fully briefed. See ECF 24, 30, 33, 34, 39. Because plaintiff alleged that defendants had violated two Baltimore City ordinances that had not been interpreted by the Maryland appellate courts prior to plaintiff's suit, I certified several questions to the Maryland Court of Appeals. ECF 53. In an opinion of January 18, 2013, the court answered those questions. See Bourgeois v. Live Nation Entm't, Inc., 430 Md. 14, 17, 59 A.3d 509, 511 (2013).[4]

Thereafter, defendants filed a joint, second Motion to Dismiss (" Motion," ECF 60), along with a Memorandum (" Memo," ECF 60-3), and exhibits. Plaintiff opposes the Motion (" Opp.," ECF 63), and has also filed exhibits.[5] No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons set forth below, I will deny the Motion as to Count I and will grant the Motion as to Counts II-XI.

Factual Summary[6]

Ticketmaster operates a nationwide ticket business through which it conducts original ticket sales to events on behalf of

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performance venues and promoters, pursuant to written agreements with the venues and promoters. The ticket sales relevant to this lawsuit are Ticketmaster's ticket sales to events in Baltimore City, including events at the Lyric, which operates a theater for live performances in Baltimore City.[7]

The Lyric and Ticketmaster are parties to an agreement (" Facility Agreement," ECF 18-7) under which Ticketmaster has the exclusive right to sell tickets by telephone or over the internet to events held at the Lyric (except for performances of the Baltimore Opera). Compl. ¶ ¶ 6-8. Although the Lyric retains the exclusive right to sell tickets in person at the Lyric's box office, it utilizes Ticketmaster's ticketing system to conduct such sales. See Facility Agreement.

In addition to the " face value" price charged for each ticket purchased by telephone or over the internet, Ticketmaster assesses what plaintiff refers to as " service charges." Id. ¶ 13. Pursuant to the Facility Agreement, the amount of the service charges is set by Ticketmaster. For each ticket to a Lyric event sold by telephone or over the internet, Ticketmaster remits the entire face value of the ticket to the Lyric, along with a portion of the service charges.[8] The remitted portion of the service charges is characterized in the Facility Agreement as a " rebate" ; plaintiff characterizes it as a " kickback." Id. ¶ ¶ 14, 28, 46.[9]

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Bourgeois purchased a ticket from Ticketmaster to a concert by the singer-songwriter Jackson Browne, which was held at the Lyric on November 9, 2009. Id. ¶ 40. Bourgeois bought the ticket over the internet, using Ticketmaster's website (www.ticketmaster.com). Id. The face value of the ticket--the price that Bourgeois alleges was publicly advertised and that was printed on the ticket--was $52. Id. ¶ 41. However, Bourgeois was also charged more than $12 in what he refers to as " service charges." Id. ΒΆ 42. The amount of the service charges was disclosed to Bourgeois during the purchase process, before he agreed to purchase the ...


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