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
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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