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Lawyers will still seek refund of Ticketmaster fees

Attorneys for the plaintiffs still plan to seek damages from Live Nation Entertainment Inc. for extra charges on past ticket sales, even though the Court of Appeals suggested Friday that such a recovery would be limited.

The state’s highest court was answering several questions posed by the U.S. District Court in Baltimore, where a judge is hearing a lawsuit over the fees charged by Live Nation, which merged with Ticketmaster Entertainment LLC in 2010.

The Court of Appeals said plaintiffs can sue for “money had and received” but not on contracts that have been fully completed, because the parties at that point are in pari delicto — equally at fault.

Attorneys for the class, however, plan to make the case that Ticketmaster is more at fault and will still seek damages for money had and received, said attorney Martin E. Wolf of Gordon & Wolf Chtd. in Towson.

“Whether they are at equal fault is a question for the court,” Wolf said. “We don’t believe we are at equal fault.”

The top court also said Friday that ticketing agents in Baltimore must abide by the 50-cent limit on service fees that was added to the city’s licensing code in 1949 as a response to scalpers at Naval Academy football games.

“The ordinance may be functionally obsolete in that regard,” retired Judge Alan M. Wilner wrote for the unanimous Court of Appeals, “but it is not legally so.”

The case was filed by on behalf of ticket-buyer Andre Bourgeois against Live Nation; its local ticketing agency, Landover-based Monumental Ticketing L.P.; and Lyric Productions LLC, which owns the Lyric Opera House in Baltimore.

“We are happy,” Wolf said. “We think it is a very important decision and a big decision, and we are very pleased with what the court came out with.”

Live Nation’s attorney, Patrick J. Carome of Wilmer Cutler Pickering Hale and Dorr LLP in Washington, declined to comment on the case.

Live Nation did not return calls for comment.

The suit alleged that Live Nation is violating the licensing and service-fee provisions of the Baltimore City Code.

The Court of Appeals said ticket agents need not have their own license if the exhibitor (in this case, the Lyric) is licensed; but whether it is licensed or not, the agent must abide by the terms of the law.

“The ordinance ensures that whoever is selling tickets, the price is clear, whether it’s a ticketing agency or the venue itself,” Wolf said.

Live Nation earned an average of $7.82 per ticket in 2009, according to the complaint. Ticketmaster and the Lyric have a “facility agreement” granting Ticketmaster exclusive rights to sell Lyric tickets in-person, online and by telephone.

The complaint also accuses Live Nation of giving a portion of the money it receives through service charges to the Lyric as a kickback, which it says makes the prices the Lyric advertises deceptive.

Bourgeois, of Baltimore, filed the lawsuit in July 2011 after buying tickets to a Jackson Browne concert at the Lyric about two years before. Bourgeois bought the tickets for $52, but was charged an additional $12 since he bought the tickets through Ticketmaster.

Judge Ellen L. Hollander, who is handling the case in U.S. District Court, sent certified questions to the Court of Appeals last June.

The court agreed that Live Nation did not need a separate license. Live Nation had also argued that Maryland no longer recognized the right to sue for the return of “money had and received” on an illegal contract.

The court found that Maryland still allows such suits, but only for pending contracts.

“When the contract is fully executed … the situation is different, for in that setting, the parties ordinarily are in pari delicto, and neither should be able to take advantage of the illegality,” Wilner wrote.

The lawsuit is also seeking damages for negligent misrepresentation, violation of the Maryland Consumer Protection Act, deceit by non-disclosure or concealment and six counts of violation of the Racketeer Influenced and Corrupt Organizations Act.

Wolf said they do not know at this point how much money they will ask for in damages.

With the questions answered, the case will resume in federal court.

“What the Court of Appeals has determined is the City Code has protected people buying tickets,” said Benjamin Carney, a principal at Martin Wolf. “Now, people know what the price is for their tickets.”

WHAT THE COURT HELD

Case:

Bourgeois v. Live Nation Entertainment Inc., Misc. No. 8, September Term 2012. Argued Nov. 29, 2012. Decided Jan. 18, 2013. Opinion by Wilner, J., ret’d, spec. assigned.

Issue:

On Certified Questions from the U.S. District Court. Does the Baltimore City Code exempt a ticketing agency from license requirement and service-fee limitations? Does it apply to authorized ticket agents of the exhibitor? Does Maryland recognize a cause of action for money had and received?

Holding:

No separate license is required if the ticket agent is authorized by a licensed exhibitor, but service charges still cannot exceed 50 cents per ticket, whether or not the agent is a reseller. Parties can sue for money had and received, but not if a contract has been fully executed or if both parties are equally at fault.

Counsel:

Martin E. Wolf of Gordon & Wolf Chtd., for plaintiff; Patrick J. Carome of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, for defendant.

RecordFax 13-0118-21 (46 pages).