Hollywood Docket: Judge Sends Baseball Fans' Suit Against Ticketmaster, StubHub to Arbitration

General view of the field at Los Angeles Dodgers Field July 03, 2020 - Getty-H 2020
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Baseball fans unhappy about COVID-19 ticket refund policies who bought their seats on Ticketmaster or StubHub will have to arbitrate their claims, a California federal judge has ruled.

Fans in April sued the league itself; each individual team; StubHub; and Ticketmaster and its parent, Live Nation.

"As stadiums remain empty for the foreseeable future, baseball fans are stuck with expensive and unusable tickets for unplayable games in the midst of this economic crisis," writes attorney David Azar in the complaint. "Under the pretext of 'postponing' games, at the directive of MLB, Teams and Ticket Merchants are refusing to issue refunds for games which are not going to be played as scheduled — if ever; and, should any games be played this year, it is almost certain that they will be played without spectators."

The suit proposed two classes, one for people who bought regular-season tickets directly from the teams and another for people who bought them on the secondary market.

Both Ticketmaster and StubHub responded to the complaint with a motion to compel arbitration, arguing anyone who bought tickets through their sites agreed that any disputes would be resolved by an arbitrator.

U.S. District Judge Dale Fischer on Sept. 14 sided with the sites finding that the click-through agreements users interact with while signing into the site and buying tickets are sufficient to provide notice of the policy and constitute mutual assent to an arbitration agreement. Citing an unpublished 9th Circuit decision in another dispute involving Ticketmaster, Fischer notes the site's Terms of Use 'provided sufficient notice for constructive assent, and therefore' created 'a binding arbitration agreement between' the consumer and Ticketmaster." The court cites the same logic and case law in a similar order granting StubHub's motion.

Meanwhile, 25 of the teams that are based outside California and three teams within the state from which the plaintiffs don't allege any direct ticket purchases (the L.A. Dodgers, Anaheim Angels and San Diego Padres) have filed a motion to dismiss the complaint for lack of jurisdiction and deride the complaint as "the latest example of litigation 'which was filed hurriedly in an attempt to capitalize on the coronavirus pandemic' and 'is riddled with defects.'"

The Oakland Athletics and San Francisco Giants filed a motion to dismiss for failure to state a claim, or alternatively, to compel arbitration based on the  terms of service of their sites.

A hearing on the baseball defendants' motions is currently set for Oct. 5.

In other entertainment legal news:

— Kurt Eichenwald will be paid $100,000 in connection with a strobe-effect tweet that the journalist says was sent to him with the intention of triggering a seizure. Eichenwald, who has epilepsy, in 2017 sued John Ravello, who was also indicted on charges of aggravated assault with a deadly weapon over the tweet. According to a Sept. 10 order, Ravello offered to pay Eichenwald a judgment of $100,000 to resolve the matter and Eichenwald accepted.

— Tavis Smiley has been ordered to pay PBS an additional $2.6 million on top of a March jury award of nearly $1.5 million issued to the network. Smiley in Feb. 2018 sued PBS for wrongful termination after the network suspended him amid allegations of sexual misconduct. The dispute brought wide attention to morals clauses in contracts, which effectively allow a company to fire someone whose bad behavior reflects poorly on the company. Smiley's case turned on whether consensual relationships with subordinates were enough to trigger such a clause. The jury sided with PBS and the network asked D.C. judge Yvonne Williams to also award liquidated damages to help the network recoup his salary for two seasons as well as corporate underwriting costs. She agreed, awarding $1.9 in liquidated damages plus another $703,000 for those costs. (Read the decision here.) Smiley on Sept. 4 filed a notice of appeal regarding Williams' decisions to award liquidated damages and to deny Smiley the affirmative defenses of unclean hands and laches and judge Anthony Epstein's May 2018 decision to grant PBS' anti-SLAPP motion.

— Bill Cosby was ordered to pay more than $2 million in legal fees to his former lawyers at Quinn Emanuel. According to a July filing, a JAMS arbitrator in Jan. 2019 issued an award to the firm of about $2.4 million. Cosby filed a motion to vacate the award and Quinn Emanuel filed a motion to confirm it. L.A. County Superior Court judge Elaine Lu in November sided with the firm. After accruing interest the total in July was nearly $3 million, according to a writ of execution filed with the court. In a Sept. 10 filing, the firm tells Lu it hasn't received any payment, and with interest accruing at a rate of about $756 per day the amount currently owed is more than $3 million.

— Disney Destinations is facing a putative class action lawsuit from Disneyworld annual passholders who claim the company is violating the Electronic Funds Transfer Act by charging them for multiple months at one time after the park closed amid the novel coronavirus pandemic. According to the complaint filed in Federal federal court, the automatic monthly payments stopped in April when the parks closed and in July when they reopened the plaintiffs were charged multiple times their authorized monthly fee — with one couple saying they were charged more than $800 when the typical fee per month was $140. On top of this, plaintiffs say many of the benefits they were promised as passholders no longer apply. (Read the full complaint here.) After a change in judges and multiple extensions, Disney's response is expected Friday.

— A trial over a vintage Atari system is game on after a California federal judge denied a bid to dismiss a dispute over an old school joystick. Atari Interactive in January 2019 sued Hyperkin alleging its video game console and joystick controller violate the trademark in Atari's 2600 line of equipment, which it began selling in 1977. Trial is currently scheduled for Feb. 2021.

— Two lawsuits over profits from the Judge Judy library have been moved to the same courtroom. The complaint from Rebel Entertainment Partners, successor in interest to the talent agency that claims to have originally packaged the series, on Aug. 24 was designated as related to one filed by Kaye Switzer and the Sandi Spreckman Trust. L.A. Superior Court Judge Patricia Nieto will be handling the disputes, with the Switzer-Spreckman matter designated as the lead case.

In settlement news:

— Reese Witherspoon's company Draper James seems to have reached a settlement with a group of teachers who were leading a putative class action lawsuit over a promotion to give free dresses to teachers. Three teachers in June sued claiming an Instagram post and subsequent media promotion prompted over a million teachers to enter the contest, but only 250 dresses were available. Witherspoon's lawyers at Gibson Dunn argued that no reasonable person would believe she had an endless supply of dresses to give away and "the words 'apply,' 'winners,' and the phrase 'offer valid while supplies last' made clear that entrants had an opportunity to receive a free dress—an opportunity that they received." Nonetheless, it appears they came to a deal. The three named plaintiffs on Sept. 11 voluntarily dismissed their individual claims with prejudice, but their claims on behalf of other class members were dropped without prejudice.

— Children's online learning site ABCmouse has agreed to pay $10 million to the FTC to settle charges of illegal billing and marketing practices. “ABCmouse didn’t clearly tell parents that their subscriptions would renew automatically, and then the company made it very difficult for them to cancel,” said FTC consumer protection bureau director Andrew Smith, in a Sept 2 statement. “People are relying more than ever on remote learning and other online services, and companies need to be up-front about automatic renewals and get permission before charging customers.” (Read the complaint here.)

— VidAngel has settled its legal battle with the major studios over its family-friendly filtering service, which Hollywood heavyweights argued was no more than an unlicensed streaming platform. Disney, Fox, Warners sued in 2016 and last summer a California jury awarded them $62 million in damages, which the Utah-based startup appealed. VidAngel filed for Chapter 11 relief during the course of the proceedings and on Sept. 4 U.S. Bankruptcy Judge Kevin Anderson issued an order approving a $9.9 million settlement, which resolves the pending appeal and includes a strike system in the event the filtering company is found to be offering a copyrighted work without a license and doesn't fix the issue within three business days. (Read the details here.)

— Mercedes Benz has quietly settled a string of lawsuits against street artists over murals depicted in the background of its Detroit-set commercials. The luxury carmaker in March sued James Lewis, Daniel Bombardier, Jeff Soto and Maxx Gramajo after they sent cease-and-desist letters in response to seeing their work in the ads. Mercedes had asked the court for a declaration that its use didn't infringe their copyrights in the works.

— A legal fight over the upcoming film King Richard, which centers on the father-slash-coach of tennis icons Venus and Serena Williams has settled. TW3 Entertainment and Power Move Multimedia in June sued Richard Williams, Warner Bros. and Will Smith's Overbrook Entertainment, along with several others, claiming it optioned the rights to Williams' memoir Black and White: The Way I See It through his son, Chavoita Lesane, in 2017. A joint stipulation of dismissal was filed on Aug. 7.

— NBC has settled a wrongful death lawsuit filed by the family of a woman who they alleged died as a result of a wheelchair crash near the set of America's Got Talent in 2017.

In hiring news:
— Corporate and entertainment attorney Robyn L. Sandak has joined New York boutique firm Alter, Kendrick & Baron. Her transactional practice spans music, film, television, theatre and live events. Sandak, a Benjamin N. Cardozo law grad, joins from Fox Rothschild. The firm's clients include Primary Wave Music Publishing, Steve Miller, Foreigner and the Ira Gershwin estate.

— Susman Godfrey has named Kalpana Srinivasan as a managing partner following the death of founder and longtime managing partner Steve Susman. Srinivasan, a Stanford Law Grad, joined the firm in 2005 after serving as a judicial clerk in U.S. Court of Appeals for the Ninth Circuit. “I am honored and grateful to help guide our incredible firm — where I have spent my entire professional career — into the future,” said Ms. Srinivasan. “We have an unparalleled group of lawyers, who will expand on the firm’s long history of success.” She's the first female to serve in the position in the firm's history and will co-manage with veteran Neal Manne.

— Fox Rothschild has hired a pair attorneys from Lewis Brisbois to increase its presence in Georgia. Leron E. Rogers will join the firm's entertainment and sports law group as a partner in its Atlanta office. Rogers' clients include actors, recording artists, new media companies and professional athletes such as Mo’Nique, Rick Ross, Migos, Steve Harvey and the Miami Marlins. Associate John T. Rose is also joining the firm. “Georgia has become a center for the arts and entertainment industries and has long been a hub for the hip-hop and rap scene," said Marc H. Simon, chair of the entertainment and sports group. "Expanding our reach with boots on the ground in Atlanta will benefit our client roster nationwide and provide increased opportunities for collaboration and growth."

— Carrie Casselman is joining Davis Wright Tremaine as a partner in its New York office. Her transactional practice spans media, sports and entertainment with a specialty in live stage productions. “The proliferation of new platforms, and the world’s intensifying appetite for entertainment, have expanded opportunities for rights holders of all kinds,” said Allie Nicholson, chair of DWT's media, entertainment and intellectual property practice. “Carrie’s deep expertise with the content side of M&A, licensing, financing and other strategic transactions significantly expands our capacity to support clients in these areas.” Casselman, who also guest lectures at Columbia Law School and Brooklyn College, joins from Paul Weiss.