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March 15, 2013

Consumer's "Tying" Claim Against LiveNation over Included Parking Fee Dismissed

By Jeffrey May, J.D.

A customer of Live Nation, Inc.—the concert promoter and ticket seller—failed to state a "tying" claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) based on LiveNation's practice of including the cost of parking in the price of concert tickets, the federal district court in Chicago has decided (Batson v. Live Nation Entertainment, Inc., March 13, 2013, Feinerman, G.).

The plaintiff alleged that he "lost $9 of money as a direct and proximate result of Defendants' practice of forcing consumers to purchase parking by including the parking fee in the price of the ticket." The plaintiff had purchased a ticket from LiveNation to attend a concert by the musical group O.A.R. at the Charter One Pavilion in Chicago. He walked to the concert from downtown Chicago and purchased his ticket from the box office window immediately before the show. The ticket stated, "$9 PRK PAID." The plaintiff's suit challenges the practice of including the parking fee in the cost of the ticket as unfair.

According to LiveNation, the plaintiff's case failed because antitrust-style claims cannot be brought under the ICFA. The court decided, however, that there was no need to resolve that issue because the plaintiff's ICFA unfairness claim did not and could not satisfy any of the three factors considered in evaluating such claims.

For purposes of an ICFA unfairness claim, conduct is "unfair" if: (1) it violates public policy; (2) it is so oppressive that the consumer has little choice but to submit; and (3) it causes consumers substantial injury.

The plaintiff unsuccessfully contended that including the price of parking in the cost of concert tickets violated the public policy against "tying." Under certain circumstances, a tying arrangement—where a business agrees to sell one product (the tying product) on the condition that the buyer also purchase another product (the tied product)—can violate the antitrust laws, the court explained. However, the circumstances of this case were not among those where tying violated antitrust law.

The plaintiff could not plausibly allege facts that LiveNation had sufficient power in the large-venue concert market to restrain free competition in the parking market. In addition, the challenged practice did not affect a "not-insubstantial amount of interstate commerce" in the parking market.

Because the practice did not violate federal or state antitrust law, it did not violate the public policies embodied in antitrust law, the court ruled. The plaintiff's other public policy arguments also were rejected.

Moreover, LiveNation's inclusion of the parking fee in the ticket price did not satisfy the second and third factors for evaluating unfairness under the three-factor test. Consumers could have avoided the $9 parking fee simply by choosing not to purchase a ticket to the O.A.R. concert, in the court's view.

The complaint was dismissed with prejudice because the plaintiff did not request a chance to replead and because any attempt to plead an ICFA unfairness claim would be futile.

This is Case 11 C 1226.

Attorneys: Christopher V. Langone for James Batson. Sean M. Berkowitz (Latham & Watkins LLP) for Live Nation Entertainment, Inc. Companies: Live Nation Entertainment, Inc.

MainStory: TopStory Antitrust StateUnfairTradePractices IllinoisNews

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