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Law360 (April 2, 2020, 5:13 PM EDT )
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| Christopher Schmidt |
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| Douglas Thompson |
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| Jonathan Potts |
Companies can prepare themselves by reviewing their terms of service and refund exchange policies through the lens of the current limited mobility environment, and by assessing how best to satisfy their customers and keep the business afloat.
In Rutledge v. Do LaB Inc., the plaintiff alleges that he purchased a ticket to the Lightning in a Bottle music festival, an electronic music festival which takes place annually in the Central Valley region of California. Attendees were able to buy general admission or VIP tickets, as well as passes for RV camping, boutique camping and lightning buses.
The festival was scheduled to take place over Memorial Day 2020. Because of the spread of the COVID-19 and governmental mandates prohibiting large public gatherings, however, the festival was recently canceled.
According to the complaint, the defendant festival organizer refused to issue refunds for any festival tickets. As alleged, the terms and conditions of the tickets provide that "all sales are final" and that "no refunds will be granted for any reason." The terms continue to state that in the event of a cancellation, "the holder shall not be entitled to a refund except as otherwise required by law."
Instead, the refund and exchange provision states in part that:
The plaintiff alleges that the contract is unenforceable as illusory because the defendant retained "complete and unfettered control to modify or terminate the agreement without assuming any obligations towards Plaintiff and the Class."[T]he holder shall have the right ... (1) if the event is rescheduled to a date and time within twelve months of the date and time originally scheduled, to use the ticket to attend the event at the rescheduled date and time or (2) ... to exchange this ticket to another event that is designated by management to be the official replacement event for the cancelled event.
The plaintiff has asserted three causes of action against the festival organizer, for: (1) rescission under California Civil Code Section 1689, based on an alleged failure of consideration; (2) violation of California's Consumer Legal Remedies Act, by an alleged misrepresentation about the transaction and by including unconscionable provisions; and (3) violation of the California Business and Professions Code, by allegedly engaging in deceptive and misleading acts and practices by including unconscionable terms.
The plaintiff seeks to represent a nationwide class of ticket purchasers. The lawsuit was filed on March 24, so it remains to be seen whether these allegations will be successful.
The defendant company may well schedule an event later this year which will serve as the "replacement" event. The defendant may also raise a variety of legal and equitable defenses to the liability claims, as well as opposing the certification of any class.
From a broader perspective, however, the lawsuit may be seen as an early signal about the direction that plaintiffs bar may pursue in consumer fraud class actions. The quick filing of the lawsuit also rings the bell that consumers and the plaintiffs bar are unlikely to wait patiently to see what alternatives and solutions companies can offer.
In this context, terms of use, refunds and exchange policies, and consumer warranties, as well as a host of other business operations practices, are critical. Companies whose services and product production may be adversely impacted by COVID-19 may want to examine the following:
- Refund, exchange, rescheduling, substitution and cancellation policies;
- Terms of use;
- Warranty and guaranty provisions and timing;
- Customer contact and customer service;
- Automatic billing arrangements, especially where products or services are adversely impacted by production or delivery delays; and
- Consumer arbitration clauses, including how and when they may be enforced.
The Rutledge suit was filed in California, but other states' laws regarding breach of contract, rescission and consumer protection statutes may have additional or differing considerations. These considerations may impact several different sectors of the entertainment industry (and other industries), beyond festival and concert promoters and ticket brokers. In addition to the face value of tickets, companies may want to consider how they address service/processing fees, exchange fees and tickets resold on a third-party market.
In designing terms and conditions to govern future entertainment events, companies may want to consider the inclusion of force majeure clauses, which currently may not be included in terms and conditions on the back sides of paper tickets because of space limitations. In some jurisdictions, force majeure may be treated as an implied term of the contracts, but an explicit term may assist in clarifying that this defense is available.
If space limitations remain a concern, it may warrant consideration of including directions to access more fulsome terms and conditions. When revising terms and conditions, it may even be worth including a specific reference to COVID-19, pandemics or epidemics, in the event that the current outbreak subsides, but a second wave of the virus (or another disease) takes root this year or in the future.
In the event of litigation, certain potential deadlines are strictly construed and may be waived. Others can be subject to extension — for example, where the parties may be trying to resolve the dispute. In the class action context, potential federal court removal is a key consideration and may have substantial advantages in positioning the defense.
Only time will tell, but there also may be developments and pronouncements from state attorneys general, the Federal Trade Commission or other regulators regarding consumer protection issues stemming from COVID-19. Giving some thought now about how to best serve consumers and best serve your business during in this challenging environment may pay dividends in the long run.
Christopher Schmidt and Douglas Thompson are partners, and Jonathan Potts is an associate at Bryan Cave Leighton Paisner LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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