Citation Edit

Druyan v. Jagger, 508 F.Supp.2d 228 (S.D.N.Y. 2007) (full-text).

Factual Background Edit

Ticketholders brought a class action suit against the Rolling Stones' lead singer (Mick Jagger) and online vendor Ticketmaster, for breach of contract, fraud, tort, and violation in truth in advertising under New York law. The plaintiff claimed that the defendants intentionally withheld timely notice of postponement of a concert, and continued to sell tickets, until 4 p.m. the day of the concert, causing the class members to incur expenses such as food, travel, and hotels.

Plaintiff claimed that the information was intentionally withheld in order to prevent concert goers from cancelling their travel to Atlantic City. Plaintiff claimed that the class members relied on the ticket vendor's Terms of Use, ticket disclaimer, and email alerts to their detriment. Defendants moved to dismiss under Rule 12(b)(6).

Trial Court Proceedings Edit

The Terms of Use on the vendor's website stated that events such as the Concert occasionally "are cancelled or postponed by the promoter, team, band or venue." The Terms of Use further provide that in the event of any such cancellation "Ticketmaster will not be liable for travel or any other expenses that [plaintiff] or anyone else incurs." In addition, the Terms of Use include a limitation on liability clause stating in capital letters that they will not be responsible for such damages even if notified of them. Ticketmaster issued tickets that also provided on the back “Date and Time are subject to change. If the event is rescheduled management is not required to issue a refund.”

Although Plaintiff did not attach these documents to the complaint he did attach an email alert from Ticketmaster stating the concert will be happening soon and advertising hotel accommodations and other entertainment in Atlantic City.

The court found that purchasing tickets from a website manifests assent to the Terms of Use and creates a binding contract so long as the terms are "sufficiently conspicuous." The website provided notice of the Terms of Use and required a purchaser to click a square stating they agreed to the terms, making these terms conspicuous. The enforcement of these terms does not require Plaintiff to have actually read them. Both the ticket stub and Terms of Use stated that concerts may be cancelled or postponed and did not require that notice be given sufficiently early. The contractual terms were held enforceable.

The fraud claim was also viewed as "absurd" and was duplicative of the breach of contract claim. Ticketmaster did not to have any extracontractual duties to a buyer. Plaintiff's asserted "unique" or "special" relationship did not exist in a traditional buyer-seller transaction online where advertisements exist.

Looking at all the evidence for the 12(b)(6) motion and drawing all reasonable inferences in favor of the plaintiff the court granted the motion to dismiss.

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