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Law360 (July 16, 2021, 2:51 PM EDT ) A woman suing StubHub's parent company over its pandemic-related refund policy can't bring a class action representing ticket buyers in over 50,000 transactions because the case would be unwieldy, a Florida federal court determined Friday.
Lauren Shiflett claims Viagogo Entertainment's offer of a 125% voucher for canceled events is inadequate because the ticket resale marketplace previously guaranteed full refunds. But Viagogo has argued that some customers might want the voucher since they stood to profit from the deal.
U.S. District Judge James S. Moody Jr. agreed with the company that a class action would pose "glaring" issues related to damages and liability.
"For example, if a buyer prefers a voucher to a refund, how could she have been deceived ... and how would that amount to any breach of contract or unjust enrichment?" the judge wrote Friday. "The court agrees with defendant that all of these uncertainties render the proposed classes unmanageable."
When events were canceled, Viagogo sent ticket holders an email offering the voucher immediately or a cash refund several months down the road. But 30% to 40% of people opted for the coupon, suggesting some preferred it to the cash, Judge Moody said.
That shows that Shiflett, who is seeking a refund, cannot represent all Viagogo customers in the estimated 50,208 transactions at issue, according to the ruling.
Shiflett proposed two classes for her breach of contract, breach of implied contract and unjust enrichment claims: one for those who did not receive cash refunds within 30 days of an event cancellation, and another for those whose events were marked postponed but not "canceled" within 90 days, the opinion says.
She also proposed a subclass for Florida residents who were members of either of the primary classes to bring a claim under Florida's Deceptive and Unfair Trade Practices Act.
Judge Moody noted a number of other issues, including that ticket holders for postponed events would have to return the passes or otherwise prove to Viagogo that they had not been transferred.
"Plaintiff's definition also requires an assessment of whether someone in any class 'affirmatively indicated' her preference to receive a voucher without explaining what it means to express such an affirmation," the judge noted. "The survey email informed buyers that they did not need to take any action if they preferred a voucher."
The judge also found arbitrary the 30- and 90-day windows Shiflett outlined in her proposed classes.
Viagogo's attorneys declined to comment.
Lawyers for Shiflett did not immediately respond.
Shiflett is represented by Gary F. Lynch, Jamisen A. Etzel and Nicholas A. Colella of Carlson Lynch LLP and Scott Adam Edelsberg of Edelsberg Law.
Viagogo is represented by Emily Y. Rottmann and Frank Talbott V of McGuireWoods LLP.
The case is 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 Nathan Hale. Editing by Philip Shea.
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