Bourgeois v. Live Nation Entm't, Inc.
| Decision Date | 18 January 2013 |
| Docket Number | Misc. No. 8,Sept. Term, 2012. |
| Citation | 59 A.3d 509,430 Md. 14 |
| Parties | Andre BOURGEOIS, Individually and on Behalf of a Class of Others Similarly Situated v. LIVE NATION ENTERTAINMENT, INC., et al. |
| Court | Maryland Court of Appeals |
430 Md. 14
59 A.3d 509
Andre BOURGEOIS, Individually and on Behalf of a Class of Others Similarly Situated
v.
LIVE NATION ENTERTAINMENT, INC., et al.
Misc. No. 8, Sept. Term, 2012.
Court of Appeals of Maryland.
Jan. 18, 2013.
[59 A.3d 510]
Martin E. Wolf (Benjamin H. Carney and Richard S. Gordon (Gordon & Wolf, Chtd., Baltimore, MD)), on brief, for appellants.
Patrick J. Carome (Brent R. Bickley of Wilmer Cutler Pickering Hale and Dorr
[59 A.3d 511]
LLP, Washington, DC; Lawrence J. Quinn and Kelly M. Marzullo of Tydings & Rosenberg LLP, Baltimore, MD), on brief, for appellees.
Turner D. Madden, Madden & Patton, LLC, Washington, DC, for amici curiae brief of The International Association of Venue Managers, The Baltimore Ravens Limited Partnership, and The Baltimore Orioles Limited Partnership in Support of Appellees.
Argued before BELL, C.J., HARRELL, GREENE, ADKINS, BARBERA, McDONALD and ALAN M. WILNER (Retired, specially assigned), JJ.
WILNER, J.
[430 Md. 17]Before us are four questions certified to this Court by the United States District Court for the District of Maryland pursuant to the Maryland Uniform Certification of Questions of Law Act (Md.Code, §§ 12–601–12–613 OF The courtS and judicIal proceEdings articLe (cjp)). THOSE questions arise from a class action pending in the District Court in which the defendants are alleged to have violated Baltimore City ordinances dealing with the sale of tickets to certain entertainment and sports events that take place in the City.
The defendants in the Federal action are (1) Lyric Productions LLC, which operates the Modell Performing Arts Center at the Lyric Opera House in the City (Lyric), and (2) certain entities, which for convenience we shall collectively call Ticketmaster, that, pursuant to agreements with Lyric (and other entities licensed to conduct entertainment or sports events in the City), sell tickets to those events, online, by telephone, and through outlets, and charge the customer more than the price printed on the ticket. The additional amount is denoted in the agreement with Lyric as a “service charge.”
The plaintiff, Mr. Bourgeois, purchased online from Ticketmaster a ticket to a concert held at the Lyric in November 2009. The price printed on the ticket that Mr. Bourgeois received was $52. To that amount, Ticketmaster added a “service charge” of more than $12.1 It is asserted, and so far not disputed, that Mr. Bourgeois was informed of that charge before deciding to purchase the ticket from Ticketmaster and knowingly decided to proceed. He received the ticket and attended the concert. Two years later, on behalf of himself and a proposed class of others similarly situated, he filed this action challenging the legality of Ticketmaster's collection of the service charge. 2 That challenge is based on Art. 15, [430 Md. 19]§§ 21–1 through 21–5 and Art. 19, § 55–1 of the Baltimore City Code. The complaint contains nine counts, one of which (Count I) is the “common count” for money had and received.
[59 A.3d 512]
Article 15, subtitle 21 of the 2000 version of the City Code regulates the sale of tickets to certain licensed events in Baltimore City, both by the entity putting on the event, such as Lyric, and by certain ticket agencies that also sell tickets to those events. The subtitle consists of five sections— §§ 21–1 through 21–5. Section 21–1 is a licensing provision. It states, in relevant part:
§ 21–1. License required
(a) In general
No person shall engage in the business of selling tickets ... evidencing the right of admission to exhibitions, performances, games, or sports conducted by licensees under licenses issued by the State of Maryland or City of Baltimore ... unless a license shall have been issued to such persons by the Director of Finance upon the payment of the fee herein prescribed.
(b) Exception
Provided, however, that no license shall be required of any agent duly authorized in writing by a licensed exhibitor to sell tickets for said licensee at the established price printed thereon.
(c) Scope; term; fee
(1) Each such license shall be limited to a single location or place of business and shall expire on January 1 next ensuing the grant thereof.
(2) The fee for such a license shall be $250 and the said license fee shall not be prorated.
(Bolding of text added)
Sections 21–2 through 21–5 are regulatory statutes. In pertinent part, they provide as follows:
§ 21–2. Maximum service charge
[430 Md. 20]A licensee under this section, or any officer or employee thereof, shall not directly or indirectly exact, accept, or receive for any ticket or token of admission to an exhibition, performance, game, or sport conducted by a licensee under a license granted by the State of Maryland, or the City of Baltimore, any greater amount than 50¢ in excess of the sum of the regular or established price or charge therefor printed on the face of such ticket, plus the amount of any tax imposed by the Government of the United States or by the State of Maryland upon such ticket or the right of admission thereunder.
(Bolding of text added).
§ 21–3. “Scalping” prohibited
(a) Price to be on ticket
Whenever the right of admission to any licensed exhibition or performance or to any game or sport where a charge is made is evidenced by a ticket ... the regular or established price or charge therefor shall be conspicuously printed thereon.
(b) Sale for more prohibited; penalties
(1) If such licensee, or any of his officers or employees, shall exact, accept, or receive, directly or indirectly, any greater amount than such regular or established price or charge, plus the amount of any tax imposed by the Government of the United States or the State of Maryland:
(i) the license of such licensee may be revoked and annulled; and
(ii) such licensee, officer, or employees shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than $500 for each such violation.
(2) The sale of each ticket in violation thereof shall constitute a separate offense.
(Bolding of text added).
Section 21–4 permits the Director of Finance to revoke the license issued under
[59 A.3d 513]
the subtitle for any violation of the [430 Md. 21]subtitle. Section 21–5 makes it a misdemeanor, subject to imprisonment for six months and a $500 fine for any person to engage in the business without a license.
Article 19 of the City Code contains what the Code calls “Police Ordinances.” Subtitle 55 deals with ticket sales. Sections 55–1(a) and (b), under the caption “Ticket scalping,” provide:
(a) Prohibited conduct.
It shall be unlawful for any person ... to sell or exchange, or offer to sell or exchange, for more than the price stated thereon or for remuneration in any form greater than such price, any ticket or tickets for admission to a public amusement, athletic, educational, or other event in the City of Baltimore.
(b) Exception
Nothing in this section shall be construed to make illegal or invalidate the excess sum which is permitted to be charged for certain tickets by a person engaged in the business of selling tickets under the provisions of Article 15, Subtitle 21 {“Ticket Agencies”} of the City Code.
(Bolding of text added).
Section 55–1(c) makes a violation of the section a misdemeanor, subject to a fine of $1,000 for each ticket sold or exchanged, or offered to be sold or exchanged, in violation of the section.
Ticketmaster and Lyric are parties to a Facility Agreement, under which, in relevant part:
(1) Lyric granted to Ticketmaster “exclusive Outlet Sales and Telephone Sales rights for all Events.” Under the definitions of those terms, that gave Ticketmaster the exclusive right to sell tickets through outlets other than Lyric, by telephone, over the Internet, and by other electronic means to all events held at Lyric, other than performances by the Baltimore Opera.3 Lyric retained the exclusive right to sell [430 Md. 22]tickets to its events to persons who appear personally at its box office (Facility Box Office Sales), although it utilizes Ticketmaster's ticketing system to conduct those sales.
(2) With respect to tickets it sells, Ticketmaster is “authorized” to collect, in addition to the price established by Lyric and printed on the ticket, a service charge and certain other charges.4 Section 5(B) of the Facility Agreement authorizes Ticketmaster to “impose a per Ticket Service Charge on all Outlet Sales and Telephone Sales.” The service charge on telephone sales must “include a per order handling fee.” The amount of the service charges, including the handling fee “shall be determined solely by [Ticketmaster]” and may be increased from time to time.
(3) Section 2 of Exhibit A to the Facility Agreement provides further detail regarding service charges. It requires that “[a]ll Tickets to an Event sold through Outlet Sales or Telephone Sales shall be sold at
[59 A.3d 514]
the Gross Ticket Price.” “Gross Ticket Price” is defined as “the purchase price for a Ticket for an Event, as established by Principal or the Promoter of the Event (Lyric), plus all taxes and other charges paid by the Ticket purchaser, including the Service Charge and per Ticket credit card surcharge if applicable.” 5 To close the loop, “Service Charge” is defined as “the amount charged by [Ticketmaster] to Ticket purchasers for the use of the [430 Md. 23]System, including per Ticket charges and per order charges.” “System” means “the equipment, software and procedures established and maintained by [Ticketmaster] for the purpose of selling, auditing and controlling the sale of Tickets for Attractions.”
(4) For each Lyric-event ticket sold by telephone or other electronic means, or through an outlet other than Lyric, Ticketmaster remits to Lyric the entire amount of the face value of the ticket plus, pursuant to a provision in Rider C to the Facility Agreement, a designated portion of the service charge...
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