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Law360 (September 18, 2020, 5:34 PM EDT ) Ticket reseller Viagogo is looking to exit a Florida woman's proposed class action accusing it of refusing to refund consumers for events canceled due to the pandemic, saying her claims are moot because she accepted a voucher and they don't apply to other events.
The Switzerland-based company, which recently acquired StubHub, argued in a motion to dismiss filed Thursday in Florida federal court that Lauren Shiflett cannot pursue her claims because she accepted a voucher worth 125% of her purchase price.
That leaves no meaningful relief for the court to offer Shiflett, the company said, adding that her aim of representing a nationwide class of Viagogo customers left holding tickets for events canceled by COVID-19 also falls short because she lacks authority to bring claims for any events other than the April 19 Tool concert she purchased tickets to attend.
The company also argued that Shiflett's Aug. 12 suit — which alleged violations of Florida's Deceptive and Unfair Trade Practices Act and brought claims of breach of contract, conversion and unjust enrichment — also fails on various legal grounds.
Shiflett has alleged that Viagogo is trying to retroactively discontinue its guarantee that customers can receive a full refund for tickets to any canceled event purchased through the company's website, but the company said in its motion that the guarantee only applies when a buyer has not received her tickets before the event has occurred.
Viagogo called Shiflett's breach of contract claim "implausible," because its terms and conditions give it "absolute discretion" whether to provide a refund, and it said her conversion and unjust enrichment claims are "simply breach of contract claims by another name."
The company also argued that Shiflett failed to allege that it engaged in any deceptive or unfair practices to support her claim under FDUTPA.
"It is hard to fathom that Viagogo's refusal to offer any refund is deceptive or unfair when the very terms and conditions grant Viagogo discretion in doing so and inform buyers of that potentiality," the company said. "Buyers agree that they may not ultimately receive any refund when they use Viagogo's services. And far from 'forcing' buyers to take a voucher, Viagogo offers them a choice: a voucher or a refund."
The company said that once the spread of COVID-19 began to delay and postpone events, it unilaterally updated its website to enact COVID-19 policies — separate and distinct from its guarantee — that said tickets would be presumed valid for postponed events but, in the event of a cancellation, a buyer could choose to receive either a refund or a voucher worth 125% of the purchase price.
Shiflett claims she used Viagogo on March 3 to buy two tickets to a Tool concert scheduled for April 19 in Tampa. She paid about $410 for the tickets and never heard from Viagogo when the concert was canceled, according to the suit.
Despite contacting Viagogo multiple times from April through July, Shiflett claims Viagogo just informed her that the tickets would remain good for the concert once it was rescheduled. She was told that Viagogo could not cancel her order or give her a refund, according to the suit.
Shiflett is seeking to represent a nationwide class of all people who used Viagogo to buy tickets to any event that was subsequently canceled due to COVID-19 and who have not received any refund, as well as a Florida subclass.
Representatives for the parties did not immediately respond to requests for comment Wednesday.
The suit is one of several that have been filed over refunds in the wake of the coronavirus pandemic. Baseball fans filed a proposed class action in California against Major League Baseball, its teams and online ticket seller. Ticketmaster and Live Nation also were hit with a proposed class action in California federal court over their refund policies for events postponed due to COVID-19.
The organizers of the SXSW festival in Texas and the Ultra Music Festival in Miami also have been sued over denied refunds.
Shiflett is represented by Scott Edelsberg of Edelsberg Law PA and Gary F. Lynch, Jamisen A. Etzel and Nicholas A. Colella of Carlson Lynch LLP.
Viagogo is represented by Emily Y. Rottmann and Frank Talbott V of McGuireWoods LLP.
The suit is Lauren Shiflett v. Viagogo Entertainment Inc., case number 8:20-cv-01880, in the U.S. District Court for the Middle District of Florida.
--Additional reporting by Lauren Berg. Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
