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Pollard v. Aeg Live, LLC

United States District Court, D. New Jersey

September 16, 2014

JESSICA POLLARD, on behalf of herself and the putative class, Plaintiff,
v.
AEG LIVE, LLC, AEG LIVE NJ, LLC, CONCERTS WEST, Defendants.

OPINION

STANLEY R. CHESLER, District Judge.

This matter comes before the Court upon the motion filed by Defendants AEG Live, LLC, AEG Live NJ, LLC and Concerts West (collectively "Defendants" or "AEG") to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Jessica Pollard ("Plaintiff" or "Pollard") has opposed the motion. The Court has considered the papers filed by the parties. For the reasons that follow, the Court will grant the motion to dismiss but will grant Plaintiff leave to file a further amended complaint.

I. BACKGROUND

This lawsuit arises out of the marketing and sale of tickets to a Bon Jovi concert held at MetLife Stadium in East Rutherford, New Jersey and to a Justin Bieber concert held at the Prudential Center in Newark, New Jersey. It implicates a provision of the New Jersey Consumer Fraud Act ("NJCFA") that limits how many tickets to concerts may be withheld from sale to the general public. The Court has jurisdiction over this putative class action suit pursuant to 28 U.S.C. ยง 1332(d). The following facts giving rise to named Plaintiff Pollard's claims are drawn from her Amended Complaint, and the Court assumes them to be true for purposes of this motion only.

On April 21, 2010, Pollard, a resident of New York, purchased four tickets, at $175 apiece, for Bon Jovi's May 29, 2010 concert at MetLife Stadium, which was one of the shows on the band's "The Circle" tour. On April 8, 2013, she purchased three tickets, at $213 apiece, to a July 2013 Justin Bieber concert at the Prudential Center, part of Bieber's "Believe" tour. Plaintiff alleges that in both instances, she paid far in excess of the tickets' face value. She claims that the ticket prices were inflated as a result of the wrongful withholding of tickets for sale to the general public by tour promoter AEG.

Pollard filed this lawsuit on February 21, 2014. Her Amended Complaint sets forth two claims under the NJCFA. She asserts that Defendants violated that statute's ticket withholding provision, N.J.S.A. 56:8-35.1, in connection with the Bon Jovi concert (Count I) and with the Justin Bieber concert (Count II). She also seeks relief under the equitable theory of unjust enrichment (Count III).

II. DISCUSSION

Defendants move for dismissal of the Amended Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. A complaint will survive a motion under Rule 12(b)(6) only if it states "sufficient factual allegations, accepted as true, to state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (citing Twombly, 550 U.S. at 556.) Following Iqbal and Twombly, the Third Circuit has held that, to prevent dismissal of a claim, the complaint must show, through the facts alleged, that the plaintiff is entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). While the Court must accept all factual allegations as true and construe the complaint in the light most favorable to the plaintiff, it need not accept a "legal conclusion couched as a factual allegation." Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007); Fowler, 578 F.3d at 210-11; see also Iqbal, 556 U.S. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, will not suffice." Iqbal, 556 U.S. at 678.

A. NJCFA Claims

At the heart of this action is a single provision of the NJCFA prohibiting those with access to tickets to performances and other public events from restricting the supply of tickets and thus unfairly driving up the price of admission to the general public. The provision, N.J.S.A. 56:8-35.1 (hereinafter, "Section 35.1") states as follows:

It shall be an unlawful practice for a person, who has access to tickets to an event prior to the tickets' release for sale to the general public, to withhold those tickets from sale to the general public in an amount exceeding 5% of all available seating for the event.

According to the October 31, 2001 Ticket Broker Report (the "Report") issued by the Ticket Brokering Study Commission (the "Commission") established by New Jersey's governor, tickets would be routinely held back from the initial sale to the general public by event promoters, venues and artists. Report at 14, 20-22, attached to Nagel Cert. as Ex. A. The Commission found that tickets were diverted to the secondary market for re-sale by brokers or given to sponsors and other insiders and never put on sale to the general public. Id. at 20-22. The report noted that this withholding "robs the general public of the chance to get tickets by dramatically decreasing the number of seats initially available to ordinary citizens at the lowest available prices." Id. at 14. The Commission recommended that legislation be enacted to curtail this conduct. Id. at 26. The New Jersey State Legislature enacted Section 35.1 as a provision of the Anti-Scalping Act, including it generally in the state's consumer protection statute, the NJCFA.

Before turning to a Rule 12(b)(6) analysis of Pollard's claim under Section 35.1, the Court must address the choice of law issue raised ...


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