Good Vibrations: Ticketmaster Not Responsible For Fans Failure To Get Prime Seats To Beach Boys Concert

by: Peter J. Gallagher

Wouldn’t it be nice if Ticketmaster had to reimburse you every time you did not get the seats you wanted to a concert? God only knows that Ticketmaster would not be happy with this policy, but it would be fun, fun, fun for the rest of us. Unfortunately, a New Jersey court recently struck down a Beach Boys fan’s efforts to hold Ticketmaster liable under this theory. In Mierzwa v. Wal-Mart, Inc., et al., plaintiff went to a self-serve Ticketmaster kiosk located inside a Walmart store — the opinion is silent on whether he drove to the Walmart in his little Honda or little deuce coupe — to purchase “reserved seats” for an upcoming Beach Boys concert. He alleged that, because a Wal-Mart employee was not immediately available to assist him in completing the purchase, he missed out on the “reserved seats” and had to settle for “outer perimeter" tickets. Plaintiff sued Ticketmaster under the New Jersey Consumer Fraud Act (“CFA”) because he allegedly was "unable to obtain the choicest reserved seats."

The trial court dismissed the complaint, calling it the "the most frivolous complaint [it had] ever seen." Specifically, the trial judge held that "[t]here was no contract to provide [plaintiff] with specific seats, it was to provide him with an ability to enter his order and then give him the best seats available at the time his order was entered[.]" The Appellate Division affirmed, holding that the CFA requires proof of three elements — unlawful conduct by defendant, an ascertainable loss by plaintiff, and a causal relationship between the unlawful conduct and the ascertainable loss — and that Plaintiff had not offered any evidence in support of any of them.  For this reason, the court shut down plaintiff’s efforts to hold both Wal-Mart and Ticketmaster liable.

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