MANHATTAN (CN) - A baseball fan struck out against the Yankees, eBay and StubHub in a proposed class action over ticket resales to baseball games.
In the process, online ticket reseller StubHub won a key game in its series against anti-scalping efforts in New York state, which allowed a law removing price caps on ticket resales to expire in 2010.
An attorney for the woman suing the Yankees told Courthouse News that he plans to appeal.
"If you want to know the truth, I knew we were in trouble when oral argument started and the judge leaned back in his chair and said, 'I was never a Yankees fan until the Giants moved to San Francisco,'" attorney Randall Newman wrote in an email.
The New York Giants moved their franchise in 1957.
"The judge's decision makes New York's ticket law meaningless," Newman wrote. "Why would anyone bother to get licensed when they can sell tickets anonymously on StubHub?"
On June 14, 2010, Newman's client Andrea Weinstein says, she surfed the Yankees website looking for tickets to a game against the Kansas City Royals. She says the Yankees page redirected her to StubHub, where she bought six tickets in the outfield grandstand from an unknown seller.
Weinstein says the tickets cost her $33 each, plus a $19.80 service charge and a $4.95 fee to receive the tickets electronically. She says she found out later that their face value was $20.
Weinstein sued StubHub, its parent company eBay and the New York Yankees on Nov. 3, 2010, alleging deceptive business practices. She said the resellers should cite the prices on their tickets.
But in a blistering 23-page opinion, U.S. District Judge John F. Keenan said that her claim presumes that consumers have "a level of stupidity that the Court cannot countenance."
Keenan cited the ruling dismissing Chistie v. Hotel.com, in which a customer sued the reservation website for not disclosing that it made profits from reservation fees.
Attorney Newman said that he has spoken to "hundreds of people" since filing the lawsuit, and few knew the difference between primary and secondary ticket markets.
"Consumer confusion means higher profits and after all, isn't that what America is about?" Newman asked.
As for the Yankees, Judge Keenan wrote that the team cannot be held liable for every ticket a third party sells.
"Under plaintiff's reading of the statute, the Yankees would be liable any time a scalper standing on a street corner sells a ticket with altered or no established price information," Keenan wrote. "There is simply no way the Yankees can police each and every third party ticket sale to ensure that the final purchaser receives the ticket in the same form, and with the same face value information, as when it was originally issued by the Yankees."
Newman said the judge misstated his client's position.
"We are not claiming that the Yankees have to police each third party ticket sale," Newman said. "We are claiming that the Yankees and StubHub expressly agreed that StubHub could remove the face value from the ticket when the ticket is electronically issued."
But Keenan wrote that even the plaintiff Weinstein acknowledged that StubHub repeatedly warns customers about third-party transactions.
"Every single page of the website to which plaintiff was redirected included a disclaimer that 'You are buying tickets from a third party; neither StubHub.com nor StubHub, Inc. is the ticket seller,'" Keenan wrote.
"Similarly, every page on StubHub's website includes a disclaimer that 'Ticket prices are set by sellers and may differ from face value.'"
Keenan then gave the Yankees fan a primer in market economics.
"If a consumer is forced to pay more than face value for a Yankees ticket, it is due to the economic forces of supply and demand, not StubHub's business practices," Keenan wrote. He also dismissed claims accusing StubHub and eBay of "intentionally aiding and abetting unlicensed ticket resellers," such as the John Doe that sold her the ticket.
"The very nature of StubHub and eBay's business is to aid and abet third party ticket sales by sellers who are most likely unlicensed," Keenan wrote.
Newman, in response, blasted the judge for giving "the 'steal' signal to StubHub and essentially allow them to knowingly provide a platform for people to engage in illegal activity."
But Keenan said New York state law knowingly made exceptions for StubHub and eBay.
"If the Legislature wished to regulate eBay and StubHub's conduct, it could have simply required the companies to obtain reseller licenses for themselves," Keenan wrote.
He said that any efforts for Weinstein to amend her claim would be "futile."
"There is no need to embark on costly and time intensive briefing of a motion to amend because neither proposed amendment would overcome the Amended Complaint's legal defects," Keenan wrote. "The plaintiff has struck out."
Nonetheless, Newman said he will step up to the plate again, in appeals court.
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