DEPT: 310 - Curt Schlesinger et al. v. Ticketmaster

Transcription

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GREENBERG TRAURIG, LLP)
JEFF E. SCOTT (SBN 126308)
1840 Century Park East, Suite 1900
Los Angeles, CA 90067-212I
Telephone: (3 1 0) 586-7700
Facsimile: (3 10) 586-7800
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GIBSON, DTINN & CRUTCHER LLP
GArL LEES (SBN 90363)
KAHN A. SCOLNICK (SBN 228686)
333 South Grand Avenue
Los Angeles, CA 90011-3197
Telephone : (213) 229 -7 000
Facsimile: (213) 229 -7 520
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Attorneys for Defendant
TICKETMASTER
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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CURT SCHLESINGER ANd PETER LO RE,
on behalf of themselves and the Class,
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Plaintiffs,
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CASE NO. BC 304565
Assigned for all putposes to Hon. Kenneth R.
Freeman - Dept. 310
TICKBTMASTER'S RESPONSE TO
VS.
OBJECTORS
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TICKETMASTER, a Delaware Corporation,
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Defendant.
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DATE:
TIME:
DEPT:
January 13,2015
10:00 a.m.
310
Date Action Filed
Trial Date:
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TICKETMASTER'S RESPONSE TO OBJECTORS
LA131922473
October 21,2003
Vacated
TABLE OF CONTBNTS
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I.
INTRODUCTION..
....... ..
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II.
ARGUMENT..........
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A.
B.
C.
D.
E.
F.
G.
The Court Should Overrule the Obj ections to the "Coupon" Structure...........
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The Court Should Overrule the Objections to Aspects of the Discount Codes
...'..',,4
The Court Should Overrule the Objections to the Free Ticket Component.....
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The Court Should Overule the Objections to the Cy Pres Component
.........6
The Court Should Overrule the Objections to the Notice
......... 8
The Court Should Overrule the Objections Regarding Release Language......
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The Court Should Overrule the Objections Regarding Attorneys' Fees and
Incentive Awards
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H.
The Court Should Overule the Other Miscellaneous Objections
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III
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CONCLUSION..........
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TICKETMASTER'S RESPON SE TO OBJECTORS
LA131922473
TABLE OF AUTHORITIES
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Paee(s)
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Cases
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Akkerman v. Mecta Corp.
(2007) t52 Cal\pp.4th 1094
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Cellphone Termination Fee Cases
(2009) 180 Cal.App.4th 1 1 10 .............
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Chavez v. Netflix, Inc.
1,3
(2008) I 62 CaL App.4th 43
Cho v. Seagate Tech. Holdings, Inc.
(2009) 17 7 Cal.App.4th 7 3 4
Consumer Privacy Cases
(2009) 175 Cal.App.4th 545
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Dunkv. Ford Motor Co.
(1 996) 48 Cal.App .4th t794
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In re Baby Prods Antitrust Litigation
(3d Cir. 2013) 708 F.3d 163...........
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In re Cathode Ray Tube (CRT) Antitrust Litigation
G\r.D. Cal. 2012) 281 F.R.D. 531...'...".'.
In re Microsoft I-V Cases
(2006) I 35 Cal.App.4th 7 06
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2,3,4,7,8
In re Relafen Antitrust Litigation
(D. Mass.2005) 23i F.R.D. 52............'.
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In re Vitamin Cases
(2003) 107 Cal.App.4th 820
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Korea Supply Co. v. Lockheed Martin Corp.
(2000) 29 Cal.4th rI34 .........
Lffitte
-(Cat.v. Robert Half
Internat. Inc.
App. 2 Dist., Oct. 29, 201 4) 201 4
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6613057
Lane v. Facebook, Inc.
(9th Cir. 2012) 696 F.3d 81 1 ...........
Munoz v. BCI Coca-Cola Bottling Co. of L.A.
(201 0) 1 86 Cal.App.4th 399
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Nachshin v. AOL, LLC
(9th Cir. 20It) 663 F.3d 1034
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Nordstrom Com. Cases
(2010) 186 Cal.App. th 576
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1A131922473
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Six (6) Mexican Works v. Ariz. Citrus Growers
(9rh Cir. 1990) 904F.2d 1301 .....
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State of Cal. v. Levi Strauss & Co.
(1 986) 4I Cat.3d 460 ...............
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Villacres v. ABM Industries Inc.
(2010) 189 Cal.App.4th 562
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Wershba v. Apple Computer, Inc,
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Other Authorities
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(2001) 91 Cal.App .4th 224
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Newberg on Class Actions (4th ed. 2002) $ 15:34
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LA131922473
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INTRODUCTION
This Settlement is fair, reasonable, and adequate, as explained in the parties' final approval
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papers. The handful of objections-l7 out of a class of more than 57,000,000 members-largely
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ignore this Court's previous guidance in the settlement context, well-established precedent, and the
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realities of this case. The objectors appear to have dusted off forms and generally contend that
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Ticketmaster should have offered more and Plaintiffs' counsel should have sought less in this
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Settlement. But the objectors have no right to renegotiate an arm's-length agreement reached after
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years of litigation and considerable input from this Court. The Court should overrule these objections
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and grant final approval to the Settlement.
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In considering these objections, the issue is "not whether the settlement agreement was the
it is 'fair, adequate, and
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best one that class members could have possibly obtained, but whether
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reasonable
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objectors offers any analysis of the merits of the litigation or Plaintiffs' likelihood of victory, which
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aïe among the "most important" factors in evaluating the fairness of a class action settlement.
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(Munoz v. BCI Coca-Cola Bottling Co. of L.A. (2010) 186 Cal.App.4th399,407, quotation marks
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omitted.) Unlike counsel for the parties, who have lived with this case for more than
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are intimately familiar with these issues, the objectors make no efforl to understand the underlying
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facts or theories of the case, or its procedural history, including this Courl's granting of summary
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adjudication of Plaintiffs' most valuable claim. On the contrary, the objectors approach this
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Settlement as if the only alternative is for Ticketmaster to refund 100% of the Class's OPFs and UPS
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Delivery Fees-with no appreciation of the considerable risks that Plaintiffs face on the merits, the
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risks of decertification, or the costs and time that they would incur if litigation continued.
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."'
(Chavez v. Netflix, Inc. (2008) 162
Cal\pp.4th 43,55 (Netflix).) None of the
a decade and
Moreover, as explained in Ticketmaster's hnal approval brief (see pp. 12-14), because
profits in the OPFs and UPS Delivery
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plaintiffs' theory of the
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Fees, the only restitution that
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component-that is, any positive difference between the amount Plaintiffs paid in an OPF or UPS
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Delivery Fee, and Ticketmast er's actual order processing and expedited shipping costs-not
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of the entire fee. (See also Fourth Am. Compl. T 75 fseeking "restitution and disgorgement from
case focuses on allegedly undisclosed
Plaintifß and the Class would be able to recover is the profit
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LA131922473
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refund
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Defendant in an amount representing the money which they paid Defendant in excess of the actual
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UPS delivery charges incurred by Defendant in connection with their ticket purchase"], italics
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added.) For many Class Members, however, the actual ordering processing and/or expedited delivery
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costs exceeded these fees, leaving those Class Members with zero recovery. In the aggregate, the
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settlement consideration offered here greatly exceeds the amount of restitution that the Class could
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hope to recover under a best-case scenario, and certainly much better than the Class could expect to
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fare once its risks of losing are considered too.
In shoft, the objectors have presented no reasoned basis to challenge the parties' strong
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showing that the Settlement is fair, reasonable, and adequate. And as explained below, the specific
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objections themselves are unfounded, resting on misapprehensions about the terms of the Settlement
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and misunderstandings about governing case
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grant final approval to the Settlement.l
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A.
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these objections and
ARGUMENT
The Court Should Overrule the Objections to the "Coupon" Structure
Several of the objectors complain that they would have preferred cash payments going to each
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law. The Courl should overule
individual Class Member, rather than
a discount code
to be applied toward future purchases.
(Objection Nos. 2, 6, 10,1 1.) This ignores that paying cash to each Class Member would impose
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privacy costs (claims forms, updated credit card information, bank account information for wires,
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etc.) and, at a minimum, enormous transaction costs. Nor is cash required in a case such as this, with
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alarge class of people each with relatively small claims. (See, e.g., In re Microsoft I-V Cases (2006)
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135 Cal.App.4th706,716 (In re
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action judgment to compensate class members according to their respective damages, the best
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alternative for the court is to award damages in a way that benefits as many of the class members as
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possible . . ."].)
Microsofl Cases) ["[W]hen it is not possible or practicable in a class
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Attached as Exhibit A to this brief is a chaft identifying each individual objector, the
ground(s) asserted, and Ticketmaster's general response asto éach-ground- For the qa.ke 9f clarity,
referi below to objections by numbei, and those numbers refer to the objections as
ii"t
"t.ná.ter
listed by number in the attached charl.
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LA131922473
This Settlement represents
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a reasonable compromise and provides real value
in
a case where
if the litigation proceeded further (and whatever
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Class Members may have recovered nothing at all
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they would be able to recover would need to be reduced by any award of attorneys' fees and
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administration costs). Moreover, numerous California decisions have approved of so-called
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"coupon" or voucher settlements in class actions such as this one. (See, e.g., Netflix, supra,162
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Cal.App.4thatpp.54-55;InreMicrosoftCases,supra,l35Cal.App.4thatpp.TIl-713;Wershbav.
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Appte Computer, Inc. (2001) 91 Cal.App.4th224,247; Nordstrom Com. Cases (2010) 186
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Cal.App.4th 576,590; Dunkv. Ford Motor Co. (1996) 48 Cal.App.4th 1794,1804-1805.)
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In any event, this Settlement provides substantial benefits in addition to the "coupons." As
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explained in the final approval papers, in addition to the Discount Codes and UPS Discount Codes,
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Ticketmaster will make available free, fully transferrable concefi tickets directly to Class Members
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for use at popular events across the United States-no strings aftached. These tickets are valuable, do
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not require users to buy anyhing at all in order to use them, and by themselves are worth more than
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the OPF or UPS Discount Codes at issue. (See Porter Decl. flfl 2-3 lexplaining that, on average, the
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free tickets would be wolth approximately $32.61 eachl; Geiger Decl. fl 7 l"The'value' of those
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general admission seats is the total price paid by customers who purchase the tickets and pay the
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ticket price offered at the on-sale date (provided that price is not reduced prior to the concerl date,
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which rarely occurs) and any fees associated with the purchase"].) Ticketmaster will make at least
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$5
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will
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beyond the discount codes and free tickets, Ticketmaster
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$5 million) to the cy pres beneficiary: The Consumer Law Clinic at the University of California
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Irvine ("UCI") School of Law.
million in free tickets available during the
f,rrst year after Final Approval, and these free tickets
be distributed to ensure that the total settlement value is at least $42
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million.2 In addition,
pay at least $3
million (up to
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One objector claims that it will take 180 years for the Ticket Codes to meet demand.
(Objection No. t:.; This misreads the Settlement Agleement. The Agreement provides for a.
àitritn.t--.rot a maximum-of 100 tickets at 600/o óf amphitheater events in the event of a shortfall
Ticketrnaster will make available as many fiee tickets as nècessary to make up for any shortfall
below $10.5 million per year in cumulative value.
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LA131922473
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B.
The Court Should Overrule the Objections to Aspects of the Discount Codes
Some objectors complain that the Discount Codes are not transferrable, which eliminates a
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potential secondary market in which brokers or others could purchase Discount Codes from Class
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Members. (Objection Nos. 1 ,7 , 9.) However, this objection ignores that the free tickets are fteely
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transferrable and
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alleviate concerns that the lack of a secondary market for the Discount Codes might result in a low
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submission rate. Moreover, this objection fails to appreciate the practical diff,rculties of making the
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Discount Codes freely transferable. Among other things, as the Courl recognized during the
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preliminary approval phase, if the codes were transferuable and could be used by individuals other
will
ensure a minimum settlement value of at least $42
million-which should
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than the specific Class Member making a purchase on Ticketmaster's website, then there would be a
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risk that automated programs (or other individuals) could grab up some or all of these codes, jam up
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the website, and prevent Class Members from making purchases using their Discount Codes. (See
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Joint Brief in Further Support of Preliminary Approval at pp. I-2.)
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In addition, some objectors argue that the 48-month time frame for redeeming the Discount
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Codes is too shoft, which, they claim, diminishes the value of the Settlement. (Objection Nos.
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But four years is a lengthy period (indeed, it is the statute of limitations on Plaintiffs' UCL Claim, see
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Bus. & Prof. Code section I72Og). And several features of the Settlement
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during that four-year period, including that Discount Codes are stackable, that codes will appear
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automatically in Class Members' accounts with annual reminder emails, and that free tickets (which
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are transferable)
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four-year period.
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will
will
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, 11.)
encourage redemption
be made available to make up for any shortfall, even after the expiration of that
Some objectors also claim that the Settlement discrirninates against frequent purchasers and
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brokers by imposin g a cap of 17 Discount Codes, 17 UPS Discount Codes, and 17 Ticket Codes.
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(Objection Nos. 1, 10, 11.) One objector also argues that since Ticketmaster is now involved in
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developing a secondary marketplace, it is improper for the Settlement to discriminate against ticket
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brokers. (Objection No. 1.) But the parties have appropriately accounted for ticket broker
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par"ticipation in the carefully crafted Settlement.
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As this Courl recognized previously, ticket brokers logically pass on the OPF and UPS Fees
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LA131922473
atp.2L) Also,
brokers are very sophisticated consumers of
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to their customers. (9126112 Order
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tickets and know how Ticketmaster makes its money. Thus, these ticket brokers were not likely to
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attrial. And there is no way (without
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have been injured and are not likely to recover anything
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individualized inquiries and discovery) to know for cerlain which Class Members are ticket brokers.
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Therefore, as discussed in Ticketmaster's final approval brief (at p. 1 1), there is significant risk that
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were the litigation to continue, the class would be decertifìed at the very least as to these ticket
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brokers, and they would be excluded entirely from any recovery. (See, e.g., In re Relafen Antitrust
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Litigation (D. Mass. 2005) 231 F.R.D. 52,75-76 fapproving nationwide class settlement and
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allocation plan, which had been modified to provide different levels of recovery among six groups of
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states according to the strength of each group's claim].)
Fufther, ticket brokers are able to benefit substantially from this Settlement, and they are not
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treated less favorably from other Class Members in any material way. Specifically, brokers may use
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the 34 Discount Codes and the 17 Ticket Codes in the same manner as all other Class
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garnering the same substantial value as other high-volume purchasers. And they are particularly well
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suited, given their experience in marketing tickets, to sell the 34 free tickets they receive and
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purchase free tickets from other class membets, and are likely to earn a handsome profit in doing so'
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The l7-transaction cutoff is no different from any other type of compromise on the total amount to be
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paid in a settlement, and it does not make the Settlement unfair.
Members-
It is also telling that of the hundreds of thousands of brokers in the Class (according to
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Objector Fuller), each of whom supposedly has claims worth thousands or tens of thousands of
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dollars (again, according to Objector Fuller), only one of these brokers, a convicted felon and
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disbarred attorney, even objected. And they had the ability to opt out, of course, if they felt they
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could recover more in separate litigation against Ticketmaster than they would obtain in this
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Settlement.
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C.
The Court Should Overrule the Objections to the Free Ticket Component
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Some objectors take issue with the fact that Ticketmaster gets credit, for purposes of valuing
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the Settlement, for "I00yo of sales price to members of the public (including all applicable fees)" of
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the free tickets. (Settlement Agreement 1T2(b); see Objection Nos. 1,12,13.) These objectors claim
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LA131922473
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that the actual cost to Ticketmaster is negligible, given that there is often excess inventory, and that
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Ticketmaster should not get credit for the fees it would have charged had it sold the tickets to the
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public. But these objectors offer no evidence to support this argument, and they overlook the fact
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that these tickets will be made available at the same time they go on sale to the general puålic, so this
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has nothing to do with eliminating "excess
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matter of economics that these free tickets are worth their face price (plus any fees that would
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otherwise be charged), which represents Ticketmastet's, the venue's, and the artist's best estimate of
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the amount that consumers would be willing to pay for the tickets. (See Geiger Decl. tj 5.)
inventory." (Settlement Agreement $ 2.1(d).) It is a basic
Moreover, because the free tickets will be for "genetal admission seating" (Settlement
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Agreement $ 2.1(d)), there can be no qualitative difference (obstructed view, higher rows, etc.)
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between the tickets on sale to the general public and those distributed free to Class Members that
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would make the latter somehow less valuable. In addition, these free tickets are fully transferrable,
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meaning that Class Members may gift them or sell them on the secondary market at whatever price
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that market will bear. And contrary to one objector's claim of ambiguity in the Settlement
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Agreement (Objection No. 11), when Class Members use Ticket Codes, Ticketmaster will charge no
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fees on those free tickets.
Similarly, some objectors argue that Ticketmaster may benefit from the free tickets that are
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made available to Live Nation-owned venues because it could make money on parking, food, and
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beverages. (Objection Nos. 9, 1 1.) But the relevant question is whether the Settlement delivers
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meaningful value to the Class,which it undisputedly does. The UCL (on which Plaintiffs and the
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Class brought their claims) does not permit non-restitutionary disgorgement to punish Ticketmaster
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(see Korea Suppty Co. v. Lockheed
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inherent unfairness or impropriety if Ticketmaster's parent company obtains some ancillary benehts
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on some of the free tickets distributed to Class Members.
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D.
Mørtin Corp. (2000) 29 CaI.4th 7134, 1152), so there is no
The Court Should Overrule the Objections to the Cy Pres Component
it does
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Some of the objectors take issue with the Settlement's cy pres feature, claiming that
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not directly benefit the Class; that they are dissatisfied with the recipient; and that a cy pres award is
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supposedly appropriate only from residual funds where Class Members do not claim all of the funds
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LA131922473
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allotted to the Settlement. (Objection Nos. 1, 6, 10, 12, 13, 14, 16.) These objections lack merit'
As explained in detail in the parties' preliminary approval briehng and final approval brief,rng,
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the cy pres award is appropriate in this case and readily satisfies the standards under California law.
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(12130113 Ticketmaster's Prelim. Approval
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pp.21-23; Ticketmaster's Br. in Support of Final Approval at pp. 5-6.) Indeed, this is precisely the
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type of case for which cy pres relief was designed-involving small claims (typically in the range
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$3-10) made by many millions of class members, where the costs of distributing any potential
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monetary recovery would likely exceed any potential settlement value. (See State of Cal. v. Levi
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Strauss & Co. (1986)
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Br. at pp. 14-19; l2l30l13 Pls.' Prelim. Approval Brief at
4I Ca13d460,471472; Inre
of
Microsofi Cases, supra, 135 Cal.App.4that716;
In re Vitamin Cases (2003) 107 Cal.App.4th820,826 (ln re Vitamin Cases).)3
Moreover, the work of UCI Law School's Consumer Protection Clinic is sufficiently tied to
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the absent Class Members' interests and the objectives of Plaintiffs' underlying claims, which are the
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criteria courts should apply in assessin g cy pres relief. (See 1n re Microsoft Cases, supra, I35
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Cal.App.4th at p. 722.) The minimum of $3 million in cash mustbe used to directly represent clients
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in claims for UCL violations and other unfair andlor deceptive business practices, advocate on behalf
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of consumers concerning issues of national consumer policy, comment on proposed consumer
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protection rules being promulgated by federal and state agencies, propose legislation, and create new
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educational tools to inform people throughout the country about consumer issues. (Chemerinsky
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Decl. Jffl 5-8.)
Some objectors suggest that cy pres should be available only to the extent that Class Members
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do not exhaust a settlement fund. (Objection Nos. 12, 16.) For one thing, these objectors ignore the
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Federal courts are in accord. (See, e.g., Lane v. Facebook, Inc. (9thCir.2012).696 F.3d 811,
819 ["For puïposes of the cy pres docìrine, a class-action_settlement fund is 'non-distributable' when
'of
;tft.
individual claíms would be burdensome or distribution of damages.costly"']; Nachshin
þ.oof
v. AOL, LLC (gthCir.2011) 663 F,3d 1034, 1038 ["We have recognized that federal courls
frequeátly usô the cy pres dôctrine 'in the settlement of class actions where_the proofof individual
claims wóuld be buid'ensome oï distribution of damages costly"l, citing and quoting Six (6) Mexican
'florks v. Ariz. Citrus Growers (9th Cir. 1990) 904F.2d 1301, 1305.]; Inre Baby Prods' Antitrust
Litig. (3dCir.2013) 708 F.3d I'63,113l"cy pres,distributions are most appropriate where fuither
individual distributions are economically infeasible"]')
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LA131922473
pres component" in any
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Courl's explicit suggestion that the parties should include "an automatic
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subsequent proposed settlement. (9126112 Order at p.
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only upon depletion of a settlement fund, then certain Class Members would end up being grossly
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ovetcompensated at the expense of their fellow Class Members, a result forbidden under California
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law.
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"windfall award of restitution"].) In contrast, by including an automatic
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Settlement ensures not only that Class Members will be able to receive generous benefits, but also
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that the Settlement will provide for the "next best use" of the proceeds by broadly advancing the
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underlying purpose of Plaintiffs' claims. (ln re Vitamin Cases, supra,107 Cal.App.4th at p. 826; see
(See Akkermanv.
31.) For another, if
cy
pres were available here
MectaCorp. (2007)l52Cal.App.4th1094, 1101 ftheUCLdoesnotpermita
cy
pres component, this
id. alp.832 [holding that "neither section 384 nor case law requires thala settlement allow for
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also
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individual claims before its fund can be distributed to
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E.
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cy
cy
pres relief']')
The Court Should Overrule the Objections to the Notice
A few objectors complain that the notice of the Settlement gave insufTrcient details about the
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merits of the case or the ticket program, that it was unfair to require objectors to identify previous
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objections filed by counsel or make themselves available for a deposition, or that there was too short
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a period
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to object. (Objection Nos. 6, 7,11,12.)
As discussed at the time of preliminary approval, however, both the form and'content of the
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notice satisfied and went well beyond the requirements in Department 310's Guidelines, the Rules of
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Court, the applicable case law, and the Court's prior concerns regarding notice. (See 4/30/14 Prelim.
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Approval Order fl 3 ffinding that "the forms and methods of notice constitute the best notice
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practicable under the circumstances and constitute valid, due, and suff,rcient notice to all members of
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the Settlement Class"l.) Further, pursuant to the Court's suggestion, the parties provided afour-
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month notice and opt-out/objections period here, which was the longest period in any settlement of
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which the parties are aware. And the notice itself contained links to the settlement website, which
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provided additional information about the case (including copies of the operative complaint, the
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settlement agreement, the motion for preliminary approval, etc.).
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Nor was it improper or unduly onerous to include the provision that objectors must make
themselves available for a deposition upon 10 days' written notice. (See, e.g., In re Cathode Ray
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L4131922473
.D. Cal. 2012) 281 F.R.D. 531, 534 lallowing deposition of class
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Tube (CRT) Antitrust Litigation
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settlement objectorl.) As this Court previously found, "CRC 3.768(d) permits such depositions of
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class objectors to go forward (provided that the factors under that rule were satisfied)." (9126112
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Order at pp. 10-1 1.) In any event, no depositions were taken of any objectors, and they were not put
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to any burden for having asserted their objections.
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F.
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The Court Shoutd Overrule the Objections Regarding Release Language
Cerlain objectors claim the language governing the release of claims is too broad, that the
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full release was
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release addresses claims beyond the specific fees at issue in the case, and that the
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made available only on the litigation website and not in the notice. (Objection Nos. 6, 7 , 9,
At the time of preliminary approval, Ticketmaster explained in detail how the release had
10
11
lI ')
been revised to address each
ofthe Court's stated concerns about the scope ofthe prior release. (See
I2
l2l30lI3 Ticketmaster Prelim. Approval Br. at pp. 1923.) Specifically, the parties
13
worked carefully to narrow the language in the release and to tailor it to the precise claims involved
I4
and the mediator
in this case, as the Court requested. (9126112 Order atp.9.) And Plaintiffs' Fourth Amended
15
Complaint makes clear that their theory of deceptive or misleading fees encompasses the OPF, the
16
UPS fees, and the Convenience Fee. (See Fourth Am. Compl.'1lT 8, 16, 18(c), 7I,13,79.)
t7
Accordingly, the release appropriately relates to those fees and charges that are directly at issue in the
18
litigation. (See also Villacres
T9
may release not only those claims alleged in the complaint and before the courl, but also claims
20
which could have been alleged by reason of or in connection with any matter or fact set forth or
21
refered to in the complaint"], quotation marks omitted].)
v.
ABM Industries Inc. (2010) 189 Cal.App. th 562,509 ["[A] cout't
Moreover, the objector provides no supporl for the argument that the full language of the
22
23
release must be included in the notice, especially where that
24
litigation website.
25
G.
Awards
27
Several of the objections relate to
Nos.
language is easily accessible on the
The Court Should Overrule the Objections Regarding Attorneys' Fees and Incentive
26
28
full
1
,2,4,5,6,7,8,
Plaintiffs' counsel's attorneys' fees request. (Objection
10, II,72,13,14,15, 16.) These objectors claim that the clear sailing
9
LA131922473
I
provision suggests collusion, that the attorneys should be paid in credits or not at all until after the
2
redemption period; and that the procedure to object was unfair because the fee application would not
J
be filed or made available until after the objection deadline. These objections lack merit.a
In Consumer Privacy Cases (2009) 175 Cal.App.4th 545, the Cour-t of Appeal held that
4
a
5
"cIear sailing" agreement such as the one at issue here is valid under California law. The court noted
6
that,
7
discouraged."' (ld. at 553, quoting Newberg on Class Actions (4th ed. 2002) $ 15:34, italics added;
I
see also Cellphone Termination Fee Cases (2009) 180 Cal.App.4th
9
settlements frequently contain a'clear sailing' agreement, whereby the defendant agrees not to object
"' [t]o the extent it facilitates completion of settlements, this practice should not
11
be
10, 1 120 ["[Class action
10
to an attorney fee award up to a certain amount"].) Here, Ticketmaster agreed to pay, up to a cap of
11
$14.96 million, whatever the Court determines to be reasonable after conducting an independent
t2
assessment. Ticketmaster did not agree or suggest that the Court should abdicate responsibility for
13
deciding how much, when, and on what terms Plaintiffs' counsel should recover fees.
t4
Futhermore, the Settlement is not contingent on the payment of any amount of fees-and the
will not
be paid out of any settlement fund that would lessen the recovery
15
fees ultimately awarded
T6
available for the Class Members. (See Cho v. Seøgate Tech. Holdings, Inc. (2009) I77 Cal.App.4th
tl
734,144f"Defendant makes no unconditional agreement to pay plaintiff s attorneys without critical
18
evaluation of their fees. Rather, it is up to plaintiff to petition the court for approval of up to fan
r9
agreed amount] . . .
20
reasonableness of the fees and costs, and sets a maximum on the amount she
21
the "clear sailing" provision does not suggest that there was anything less than an arm's-length
22
negotiation. The Courl will have to decide what fees are appropriate, and Ticketmaster has not
23
agreed to anything in that regard (except to pay what the Court orders, up to a cap).
24
.
The agreement thus required plaintiff to demonstrate to the court the
will seek."]. Therefore,
In addition, regarding the procedure and timing for objections, the Courl of Appeal has
25
26
27
o So-" of the objectors also contend that the amount of fees soug-ht is excessive. Ticketmaster
takes no position on appropriateness of the amount of fees that Plaintiffs are seeking, and
Ticketmaster does not oppose their request.
28
10
LA131922473
1
squarely rejected the objectors' argument that it is somehow improper to require class members to
2
f,rle objections before counsel files a fee
a
J
(Cal.App. 2 Dist., Oct. 29,2014) 2014 WL 6613057 at * 5-7
4
identified the maximum amount of the fee award and incentive award. The objectors overlook that
5
pursuant toParagraph6.2(c) of the Settlement Agreement, Plaintiffs' fee application must be posted
6
to the settlement website, and objectors may oppose that application at the appropriate time.
application. (See Lffitte v, Robert Half Internat. Inc.
.) In any event,
the class notice here
A few individuals object that the incentive fees for the named Plaintiffs are excessive.
7
8
(Objection Nos. 5, 7, 8, 10, 12,13.) But, as with the attorneys' fees request,the agreement simply
9
provides that Ticketmaster will pay, up to a cap of $40,000, whatever the Court deems fair and
10
appropriate.
11
H.
T2
The Court Should Overrule the Other Miscellaneous Objections
Non-Disoarasement
Limited Press Releases'. One objector takes issue with the non-
13
disparagement and limited press releases as raising "freedom of speech issues." (Objection No. 6.)
T4
But this ignores that the non-disparagement and press release provisions apply only to named parties
15
and counsel, who have agreed to be bound by
t6
t7
them. (Settlement Agreement $$ 9.1, 9.2.) These
provisions do not bind the absent Class Members and thus do not raise free speech concerns.
P
otential for Ticketmaster to Rai.se Price,s'. Two o bjectors argue that the Settlement is
18
improper because Ticketmaster can raise fees or ticket prices to cover the cost of the discounts being
T9
provided in the Settlement. (Objection Nos. 1, 6.) This is a red hening. Ticketmaster could always
20
raise prices, irrespective of the Settlement,
2I
the sake of argument that Ticketmaster raised its fees or ticket prices, and this caused some Class
22
Members not to use the Discount Codes, the result would be an increase in the number of free concert
23
tickets that Ticketmaster will make available to class members. And if the prices and fees go up, that
24
makes the free ticket component of this Settlement that much more valuable. Lastly, these objectors
25
overlook that if a sufficient number of Discount Codes and free tickets are not redeemed, for
26
whatever reason, then Ticketmaster would provide up to an additional $2 million in cy pres payments
2l
to the UCI Law School Consumer Protection Clinic. Thus, the Settlement has several backstops to
28
ensure it provides substantial value.
if the market would bear
it.
Moreover, even assuming for
11
14131922473
1
AEG Venues Not Included: One objector complains that AEG venues are not included in the
2
Settlement. (Objection No. 8.) But Ticketmaster does not sell tickets for, or own, any AEG venues.
J
Ticketmaster, therefore, has no control over AEG, a third party not bound by the Settlement
4
Agreement, and it cannot force AEG to provide discounts or free tickets.
Live Nation SEC Settlement Valuation: One objector claims that the true value of the
5
6
Settlement is reflected in Live Nation's estimate in its SEC filing, which estimates that the Settlement
7
wouldcostLiveNation$35.4million. (ObjectionNo. 13.) ButtheestimateinLiveNation'sSEC
8
hlings does not include the value of the tickets that Ticketmaster is giving away to make up for any
9
shortfall in Discount Code redemptions, because for accounting purposes the value of those tickets is
10
not required to be accrued in advance as they are treated as lost revenue when the show occurs, for
11
accounting purposes. Moreover, this estimate was not reflective of the value of the Settlement to the
12
Class, which is the only perspective that matters here.
No Permanent InÌunctive Relief: Contrary to one objector's claim that there is no provision
13
"lasting remedy" because Ticketmaster is not required to use specif,rc language in the future
t4
for
15
(Objection No. 16), Section 2.3(b) of the Settlement Agreement provides that Ticketmaster is
16
required to maintain for seven years the disclosures that convey "the same basic message" that
I7
Ticketmaster's fees may contain a profit component. (Settlement Agreementl2.3 (b).) If Plaintiffs
18
believe Ticketmaster is inadequately conveying this message,"they may seek appropriate relief from
t9
the Coud." (Ibid.)
20
a
Fixed Percentase Discount or Cash Credit: One objector complains that the Settlement does
2I
not contain a f,rxed percentage discount on future ticket purchases or a credit to Class Members'
22
checking accounts, which were suggestions that the Court made for possible settlement structures in
/.J
its Septemb er 2012 order denying final approval of the prior Settlement. (Objection No. 12.) But
24
those were simply suggestions. This Court gave preliminary approval to the
25
which the parlies have accomplished the same goals that those suggestions were meant to
26
accomplish-namely, Ticketmaster agreed to place the Discount Codes and Ticket Codes directly
27
into Class Members' "my account" webpages without the need for a claims process. Not only is this
28
far more practical, it is also far more likely to provide real value to the Class, compared with
12
L¡.131922473
curent Settlement, in
1
attempting to credit Class Members' checking accounts or credit cards more than a decade after the
2
fact and assuming that the account numbers would have remained constant over time.
J
Lack qf Reporting-for Redemption Rates: Finally, two objectors complain that there is no
4
mechanism for the Court to track the redemptions made under the Settlement. (Objection Nos. 9,
5
13.) But Plaintiffs have already provided details about the anticipated redemption rates. And in any
6
event, section 9.7 of the Settlement Agreement requires Ticketmaster to provide the Court with
7
annual reporls on redemption rates.
III.
8
9
10
CONCLUSION
For these reasons, the Court should find that the Settlement is fair, reasonable, and adequate;
it should overrule the objections; and it should grant final approval.
11
t2
DATED: December 8,2014
GREENBERG TRAURIG, LLP
GIBSON, DLTNN AND CRUTCHER LLP
13
I4
15
By:
t6
E. Scott
Attorneys for D
T7
18
19
20
2l
22
23
24
25
26
2l
28
13
LA131922473
Exh¡bit A
Objection
Name of
Objector
#1
Eric Fuller
(through
attorneys
Christopher
Conant and
Michael Flynn)
Nature of Objection(s)
Ticketmaster’s Response
1. Settlement does not adequately address
losses suffered by “ticket brokers.”
1. Mr. Fuller acknowledges that “[t]here is no legal
requirement that all members of the Class
participate equally in any settlement” if
distinctions are based on legitimate
considerations. (Fuller P&A in Support of
Objection, p. 8.) Here, the cap of 17 transactions
is reasonable given the unique risks that ticket
brokers face on the merits; ticket brokers will be
entitled to substantial benefits just like all Class
Members; only one self-identified ticket broker
has objected.
2. Settlement provides inadequate value to
injured Class Members.
2. This objection fails to account for the risks
Plaintiffs face on the merits; between discount
codes and free tickets, Class Members receive
consideration that is likely far more valuable than
any amount of restitution they would have
received following a trial.
3. Ticketmaster could increase prices or fees
to offset the value of the coupons.
3. Even if Ticketmaster raised its prices, that would
only make the free ticket component of this
settlement more valuable.
4. Real value of the settlement is disclosed
in Live Nation’s SEC filings.
4. The estimate in Live Nation’s SEC filings does
not include the value of the tickets that
Ticketmaster is giving away to make up for any
shortfall in code redemptions, because for
accounting purposes the value of those tickets is
not required to be accrued in advance as they are
treated as lost revenue when the show occurs for
accounting purposes; moreover, this estimate was
not reflective of the value of the Settlement to the
Class, which is the only perspective that matters
1
LA131922573
Exhibit A
Objection
Name of
Objector
here.
5. Attorney’s fees are “unfair when the class
receives no money.”
5. The Court will decide the proper amount of
attorneys’ fees to award, based on a consideration
of established factors; courts commonly award
fees in cases where the Class receives non-cash
settlement benefits.
6. Cy pres fund “fails to satisfy the [cy pres]
goals articulated by the California
legislature,” and should “at a minimum”
be funded with “cash . . . which can be
distributed to charities.”
6. The cy pres payments here are in the form of
cash; the cy pres beneficiary is appropriate under
California law because the work of UCI’s
Consumer Law Clinic is sufficiently tied to the
objectives of Plaintiffs’ underlying claims.
7. Court should create subclass of ticket
brokers with Mr. Fuller as the class
representative.
7. Ticket brokers are adequately compensated and
there is no legal basis to create a subclass;
because most ticket brokers do not identify
themselves as such, any subclass would not be
ascertainable; if there were a subclass created of
ticket brokers, Ticketmaster would be entitled to
seek decertification of that subclass on the
grounds, among others, that individualized
inquiries are needed to determine the knowledge
of these more sophisticated consumers about
whether Ticketmaster earns a profit for its
services and whether each subclass member
merely passed the disputed fees on to his or her
customers; Mr. Fuller is not an adequate class
representative because he is a convicted felon and
disbarred attorney who admits he made hundreds
of purchases long after he knew all of the
allegations in this case, and thus he would not
2
LA131922573
Exhibit A
Objection
Name of
Objector
have standing as the Court found in connection
with its summary judgment ruling on Plaintiffs’
OPF claim.
#2
#3
Hawk100482@
aol.com
Rick Asherton
1. “Coupon-only” settlement is insufficient;
Class Members should be awarded
“cash.”
1. Objectors are not entitled to rewrite settlement
terms; paying cash would implicate significant
privacy concerns and impose substantial
transaction costs; California courts commonly
approve “coupon” settlements in cases like this
where a large class of people each has relatively
small claims; this is not a pure “coupon”
settlement because of the free ticket vouchers, cy
pres component, and injunctive relief; this
objection fails to account for the risks Plaintiffs
face on the merits; between discount codes and
free tickets, Class Members receive consideration
that is likely far more valuable than any amount
of restitution they would have received following
a trial; this Court previously overruled the
objection that the settlement must provide cash.
2. Attorney’s fees should not be awarded
until Ticketmaster “changes its policies
and stops preventing other companies
from selling tickets (anti-monopoly
laws).”
2. This case has nothing to do with anti-monopoly
laws; Ticketmaster has changed its website
language in response to the claims in this
litigation; the Court will decide the proper
amount of attorneys’ fees to award, based on a
consideration of established factors.
1. Settlement offers “no value” to the extent
that Class Member plans to never do
business with Ticketmaster again.
1. Class Members may benefit from free tickets
without ever having to do business with
Ticketmaster again; substantial cy pres payment
provides additional settlement value.
3
LA131922573
Exhibit A
Objection
#4
#5
Name of
Objector
Raymond
Leeper
James Tindall
(objector is an
2. Requests “direct financial compensation
for a situation I tried to resolve, without
any success and expending a lot of time,
for over 1 year.”
2. Objector does not identify the “situation” to
which he refers or whether it has any relation to
the claims in this lawsuit; objectors are not
entitled to rewrite settlement terms; paying cash
would implicate significant privacy concerns and
impose substantial transaction costs; this Court
previously overruled the objection that any
settlement here must provide cash.
1. Settlement does not “fully [indemnify] the
class for damages.”
2. Attorney’s fees are excessive.
of established factors; regardless of what the
Court rules, that is no reason to delay approval of
the settlement.
3. Attorney compensation should come in
the form of “ticket credits,” rather than
cash.
3. The objectors may not rewrite the terms of the
settlement; courts commonly compensate
attorneys in cash even when their efforts result in
non-cash settlement benefits; the Court will
decide how much, when and how to compensate
Class counsel for their fees.
1.
1. Class Members receive consideration that is
likely far more valuable than any amount of
Settlement provides nothing to
individuals who were harmed by
4
LA131922573
Exhibit A
Objection
Name of
Objector
attorney)
#6
Michael Booker
(through
attorney
Lawrence
Schonbrun)
Ticketmaster, but requires future
purchases with Ticketmaster.
restitution they would have received following a
trial; Class Members may benefit from free
tickets without ever having to do business with
2. Objects to attorney’s fees and incentive
payment for Class representatives (to the
extent that representatives are receiving
cash while the Class Members are
receiving coupon codes).
2. Courts commonly compensate attorneys in cash
even when their efforts result in non-cash
settlement benefits; the Court will decide how
much, when and how to compensate Class
counsel for their fees.
1. Settlement requires Class Members to
make future ticket purchases in order to
obtain “anything” from the settlement.
Ticketmaster again.
2. Settlement should contain a “cash option”
payment that enables Class Members who
do not wish to purchase additional tickets
from Ticketmaster to receive a cash
refund (before any money is disbursed to
the University of California Irvine).
2. Objectors may not rewrite terms of settlement;
Class Members receive consideration that is
trial; Class Members may benefit from free
tickets without ever having to do business with
Ticketmaster again; free tickets are transferable
and may be sold for cash; paying cash would
implicate significant privacy concerns and
impose substantial transaction costs; this Court
previously overruled the objection that the
settlement must provide cash.
3. Attorney’s fee request is excessive.
5
LA131922573
Exhibit A
Objection
Name of
Objector
the settlement.
4. Procedure for objecting to attorney’s fees
is inappropriate (e.g., because objection
must be made prior to filing of the fee
application).
4. The California Court of Appeal has squarely
rejected this proposed rule.
5. Settlement does not contain sufficiently
detailed information to allow Class
Members to determine the fairness,
adequacy, and reasonableness of the terms
5. Class notice directs Class Members to settlement
website, which contains all pertinent information
about the settlement and allows Class Members
to evaluate its fairness.
6. Settlement is insufficiently detailed
concerning “how many events class
members typically attended, what seating
they purchased, how many events are
typically offered each year, [and] what
clubs are to be included.”
6. Ticketmaster identified the approximate
percentage of repeat customers (61%) in its
papers (see also Boone Declaration ¶ 9); the free
tickets are for general admission seating;
Ticketmaster has identified the types of artists
and venues that will be “of similar caliber and
quality” to the shows for which free tickets will
be made available (see Campana Declaration ¶ 4
& Ex. A.)
regarding how the value of $42 million
was calculated.
7. Settlement Agreement details exactly how $42
million is to be calculated at paragraphs 2.1 and
2.2.
8. Terms of release are unclear.
8. Terms of release are sufficiently clear and reflect
the benefits of this Court’s guidance in
connection with the prior settlement.
9. Settlement benefits are “illusory” because
9. Even if Ticketmaster raised its prices, that would
6
LA131922573
Exhibit A
Objection
Name of
Objector
the settlement contains no provisions
preventing Ticketmaster from raising
future ticket prices, future ticket service
orders, or future delivery prices and
“thereby nullifying the purported
discounts and credits” provided to Class
Members; and Ticketmaster may change
the website language.
only make the free ticket component of this
settlement more valuable; any changes to website
language must still convey same “basic message”
and the Court retains jurisdiction to enforce this
provision.
10. Settlement contains “several indicia of
structural collusion” (e.g., clear sailing
provision regarding attorney’s fees,
judicially reduced attorney’s fees will
“benefit [Ticketmaster] rather than class
members”).
10. California courts routinely approve settlements
with clear-sailing fee agreement; settlement was
the product of arm’s-length negotiation and there
was no collusion; fee award paid by Ticketmaster
and does not reduce benefits for Class.
11. Notice is defective because the Notice
contains language that is “misleading”
and/or “untrue,” and a Class guardian
should be appointed by the court to “cure
the deficiencies in the Notice.”
11. Specific objections to notice language are
erroneous on their face and inconsistent with the
plain language of the notice itself.
12. An accounting directly to the Class should
be required each year for four years.
12. Section 9.7 of the settlement agreement already
provides annual reporting requirements.
13. Cy pres is inappropriate because no
information is provided concerning the
selection of University of California
Irvine as the fund recipient.
13. The parties’ preliminary and final approval briefs,
and the Declaration of Erwin Chemerinsky,
provide extensive detail about the cy pres
recipient; all of this information is available on
the settlement website.
14. Settlement places an inappropriate burden
14. There was no requirement to appear at a hearing
7
LA131922573
Exhibit A
Objection
#7
Name of
Objector
Cara Patton
Glenn Kassiotis
(through
attorneys
John Davis,
Marcus
Merchasin
and Steven
Helfand)
Brooke Everly
Russell
Cunningham
Brice Johnson
George
Mattison IV
(through
attorney
Steven
on Class Members (to identify previous
objections by counsel, to appear at
hearings, to make oneself available for
deposition).
in order to object; California law permits
depositions of class members in appropriate
cases; identifying prior objections by counsel
allows the Court and the parties to identify socalled professional objectors; in any event, no
depositions were noticed or taken; the Court
previously overruled objections on this ground.
15. Non-disparagement and/or limited press
release provisions constitute
impermissible, unconstitutional speech
restraints.
15. Non-disparagement and limited press release
provisions do not bind Class Members, only the
parties who agreed to these provisions are bound.
1. Notice is defective because it discourages
objectors by requiring them to make
themselves available for depositions and
identify previous objections filed by their
attorneys.
1. California law permits depositions of class
members in appropriate cases; identifying prior
objections by counsel allows the Court and the
parties to identify so-called professional
objectors; in any event no depositions were
noticed or taken.
2. Release language is overly broad.
2. Terms of release have been narrowed from prior
settlement and reflect the benefits of this Court’s
guidance.
3. Settlement inappropriately authorizes
3. Settlement designed to provide at least
$42 million in settlement value; the Court will
payment of attorney’s fees regardless of
decide the proper amount of attorneys’ fees to
how many Class Members actually submit
award, based on a consideration of established
“claims.”
factors.
4. Actual value of the Settlement is
“substantially less than the purported
4. Settlement designed to provide at least $42
million in settlement value; there are several
8
LA131922573
Exhibit A
Objection
Name of
Objector
Helfand)
#8
Michael
Wasserman
backstops, including additional free tickets and cy
pres, to ensure value.
value.”
5. Settlement fails to specify which
concerts/venues the coupons codes can be
redeemed for.
5. Ticketmaster has identified the types of artists
and venues that will be “of similar caliber and
quality” to the shows for which free tickets will
be made available (see Campana Declaration ¶ 4
& Ex. A.)
6. Coupons represent inadequate
compensation for Class Members because
“non-transferability” renders benefits
largely illusory.
6. Free tickets are fully transferable and may be sold
for cash; it would be impracticable to make
discount codes transferable.
7. Coupons cannot be “meaningfully
stack[ed]” to “enhance the savings.”
7. Discount codes may be stacked.
8. Four-year coupon redemption period is
unreasonably short.
8. Four years is the statute of limitations on
Plaintiffs’ claims; several features of the
Settlement will encourage redemption during that
four-year period.
9. Incentive awards are excessive.
incentives to award, based on a consideration of
established factors; regardless of what the Court
rules, that is no reason to delay approval of the
settlement.
1. Settlement does not provide for AEG
venues to be eligible for coupon code
discounts.
1. Ticketmaster is not related to AEG and AEG is
not a defendant in this action.
9
LA131922573
Exhibit A
Objection
#9
Name of
Objector
obtain value from the Settlement.
Ticketmaster again.
3. Providing “free tickets” to events
(excluding AEG owned or operated
venues) if Class Members “fail to use all
of the Discount Codes” offers “no benefit
to the class.”
3. This objection is illogical: Even if a Class
Member does not want to use a free ticket, the
free tickets are transferable and may be sold for
cash.
4. The OPF were “several times” the amount
of the coupon code discount authorized
under the Settlement.
Plaintiffs face on the merits; between the discount
codes and the free tickets, Class Members receive
received following a trial; in fact the OPFs were
not several times more than the Discount Codes.
5. Attorney’s fees and incentive payments
are excessive.
attorneys’ fees and incentives to award, based on
a consideration of established factors; regardless
of what the Court rules, that is no reason to delay
approval of the settlement.
1. “Coupon-only” relief offers “no relief at
Rhadiante Van
all,” because the coupons “have little to
De Voorder
no value” since they are “not transferable
(through
attorney
whatsoever” and “are not convertible into
Donald Greene)
cash by redemption.”
received following a trial; free tickets are fully
transferable and may be sold for cash.
10
LA131922573
Exhibit A
Objection
#10
Name of
Objector
G. Kimberly
Carey
(through
attorney
William
Sowders)
2. “Free ticket” relief offers “no relief at
all,” because “[t]his is a nationwide
settlement and [Ticketmaster] does not
have venues in every state.”
2. By virtue of their membership in the Class, Class
Members necessarily purchased tickets from
Ticketmaster before, so free tickets should have
value for all Class Members; in any event, the
free tickets are fully transferable and can be sold
for cash.
obtain value from the settlement.
Ticketmaster again.
4. Purported settlement value is “inflated.”
4. Settlement is designed to provide at least
$42 million in settlement value; there are several
5. Overly-broad release that is also
“defective” because it was “not included
in the Class Notice.”
guidance; Class notice directed Class Members to
settlement website, which contained full language
of release.
1. Settlement fails to reasonably make Class
Members whole because Class Members
must secure a code in order to qualify for
a “minimal” discount on future purchases
“from the defendant who took advantage
of them,” and those codes are allegedly
already available to the “general public”
via the Internet).
received following a trial; discount codes
provided in this settlement are not available to
general public on the Internet.
11
LA131922573
Exhibit A
Objection
Name of
Objector
Members whole because coupon
distribution is capped at 17 per Class
Member.
2. Cap of 17 transactions is reasonable given the
likelihood that customers making more than 17
purchases during class period are ticket brokers,
and the risks that ticket brokers face on the
merits; ticket brokers and other high-volume
purchasers will be entitled to substantial benefits;
only one self-identified ticket broker has
objected.
3. Settlement does not provide for any cash
payment to Class Members.
pres component, and injunctive relief; this Court
previously overruled the objection that any
settlement here must provide cash.
4. Settlement inappropriately establishes a
claims process when Ticketmaster already
knows how to locate individual Class
Members.
4. There is no claims process; discount codes are
automatically placed in Class Members’ “my
account” pages on Ticketmaster’s website.
5. Cy pres is defective because the identity
of the Class is known to Ticketmaster,
cash payments could be made directly to
Class Members, and the program to be
funded at University of California Irvine
is unrelated to the issues in dispute.
5. California law permits cy pres awards even where
the identity of the Class Members is known; the
objector ignores the Court’s suggestion in
connection with the prior settlement that there
should be a cy pres component; the cy pres
beneficiary is appropriate under California law
12
LA131922573
Exhibit A
Objection
Name of
Objector
because the work of UCI’s Consumer Law Clinic
is sufficiently tied to the objectives of Plaintiffs’
underlying claims.
#11
Thomas Groom
6. Attorney’s fees and incentive payments
are excessive.
attorneys’ fees and incentives to award, based on
a consideration of established factors; regardless
of what the Court rules, that is no reason to delay
make future purchases from Ticketmaster
in order to obtain value from the
Settlement, which will “likely” result in a
“direct financial benefit” to Ticketmaster.
Ticketmaster again.
2. Class Members must “return to the
Ticketmaster website multiple times to
purchase multiple tickets in order to claim
the full value [to which they are entitled]
under the terms of the Settlement.”
received following a trial; the free ticket
component of this settlement does not require the
Class Members to make any purchase.
Members whole in any event because
coupon code and discount code
distribution are both capped at 17 per
Class Member.
3. Cap of 17 transactions is reasonable given the
likelihood that customers making more than 17
purchases during class period are ticket brokers,
and the risks that ticket brokers face on the
merits; ticket brokers and other high-volume
purchasers will be entitled to substantial benefits;
only one self-identified ticket broker has
13
LA131922573
Exhibit A
Objection
Name of
Objector
objected.
4. “Unreasonable” to “set a settlement value
on the unknown available of ‘free tickets’
to yet-to-be determined concerts at
unknown and undisclosed venues.”
4. Settlement designed to provide at least $42
million in settlement value; there are several
5. Settlement does not provide for any cash
payment to Class Members.
settlement because of the free ticket vouchers;
this Court previously overruled the objection that
any settlement here must provide cash.
regarding how the value of $42 million
was calculated.
6. Settlement Agreement details exactly how
$42 million is to be calculated at paragraphs 2.1
and 2.2.
7. Settlement fails to prohibit Ticketmaster
from applying “deceptive fees” to the
issuance of “free tickets” obtained
through coupons.
7. The free tickets available in this settlement do not
require Class Members to pay any fees to obtain
the tickets.
8. Proposed benefits fail to approximate the
“range” of recovery to the Class.
14
LA131922573
Exhibit A
Objection
Name of
Objector
9. Release provisions are overbroad.
guidance.
10. Notice Program is procedurally deficient
and substantively deficient (e.g., because
it fails to satisfy due process and because
it fails to advise Class Members of all
material terms of the Settlement).
10. Specific objections to notice language are
erroneous on their face and inconsistent with the
plain language of the notice itself; notice directs
Class Members to settlement website, which
contains all terms of settlement and additional
documents.
11. Claims process is “confusing” and
“deficient” because it requires that Class
Members maintain an Internet member
status with Ticketmaster, requires Class
Members to “log onto a second
[Ticketmaster] website and compete with
other [Class Members] for limited,
general admission seating, with no
assurances that an appropriate number of
tickets will be available in all locations
where Class Members reside to allow
each Class Member to redeem the Ticket
Codes within [a] four year [period],” and
does not specify which venues/concerts
will be subject to coupon redemption.
11. There is no claims process; discount codes and
free ticket codes are placed automatically into
Class Members’ “my account” pages on
Ticketmaster’s website; in order to have
purchased tickets from Ticketmaster in the first
instance, each Class Member was required to set
up an account; to the extent Class Members
envision needing to “compete” with each other
for free tickets, this ensures that Class Members
anticipate using the free ticket and will get real
value from the settlement.
15
LA131922573
Exhibit A
Objection
Name of
Objector
the settlement.
#12
1. Benefits of the “discount codes” and “free
Michelle
tickets” to Class Members are illusory.
Melton
Forrest Turkish
(through
attorney
Darrell Palmer)
2. Non-economic benefits (e.g., changes to
Ticketmaster's website and FAQ’s) are
illusory.
2. Any changes to website language must still
convey same “basic message” and Court retains
jurisdiction to enforce this provision.
3. Cy pres fund indicates an inappropriate
“preference” for third parties over Class
Members.
3. California law recognizes appropriateness of
using cy pres in cases such as this; objection
ignores the Court’s suggestion in connection with
the prior settlement that there should be a cy pres
component; the cy pres beneficiary is appropriate
under California law because the work of UCI’s
4. Attorney’s fees are excessive, and Class
Members should be afforded an
opportunity to review any attorney fee
motion prior to the deadline to object or
opt out of the Settlement.
the settlement; the California Court of Appeal has
rejected the rule proposed by the objector
regarding timing for objections in relation to fee
motions.
16
LA131922573
Exhibit A
Objection
#13
Name of
Objector
John Navarette
(through
attorney Joshua
Furman)
5. Incentive awards are excessive.
settlement.
6. Objection procedures outlined in the
Notice are “unduly burdensome and
designed to intimidate potential
objectors,” and accordingly also “interfere
with objectors’ ability to find legal
representation.”
6. The objection procedures comply with California
law and are not unduly burdensome (and several
of the objectors had legal counsel).
1. Relative number of opt-outs and objectors
are high; to the extent they represent a
small percentage of the total Class
membership, they are meaningless as to
the membership’s approval.
1. In fact, the relative number of opt-outs and
objectors is infinitesimal and far below what
California courts regard as a favorable response
from the Class.
2. Chavez v. Netflix does not provide cover
for the coupon settlement (since this is a
“pure” coupon settlement).
2. This is not a pure “coupon” settlement because of
the free ticket vouchers, cy pres component, and
injunctive relief.
3. Purported settlement value does not
account for redemption rates.
3. Settlement designed to provide at least
$42 million in settlement value; there are several
4. Live Nation values the cost of the
Settlement at a substantially discounted
amount.
4. The estimate in Live Nation’s SEC filings does
not include the value of the tickets that
Ticketmaster is giving away to make up for any
shortfall in code redemptions, because for
17
LA131922573
Exhibit A
Objection
Name of
Objector
accounting purposes the value of those tickets is
not required to be accrued in advance as they are
treated as lost revenue when the show occurs for
accounting purposes; moreover, this estimate was
not reflective of the value of the Settlement to the
Class, which is the only perspective that matters
here.
5. Cy pres recipients are “inadequate” and
the fund minimum is “improperly
valued.”
5. California law permits cy pres awards even where
the identity of the Class Members is known; the
objector ignores the Court’s suggestion in
connection with the prior settlement that there
should be a cy pres component; the cy pres
beneficiary is appropriate under California law
because the work of UCI’s Consumer Law Clinic
is sufficiently tied to the objectives of Plaintiffs’
underlying claims.
6. Objector did not receive email notice.
6. Objector indeed received notice as confirmed by
Garden City Group (see Declaration of Jennifer
M. Keough in Support of Plaintiffs’ Opposition
to Objection of John Navarette ¶ 3); even if
objector had not received notice via email, there
is no dispute that objector did receive actual
notice; for Class Members who did not receive
email notice, the notice campaign here also
included publication notice and notice via
Internet banner advertisements.
18
LA131922573
Exhibit A
Objection
Name of
Objector
the settlement.
#14
Erika Kron
(through
attorney Scott
Kron)
8. Incentive awards are “unconscionable and
indicative of collusion.”
settlement.
1.
Cy pres is defective because the program
at the University of California Irvine is
unrelated to the issues in dispute.
1. The cy pres beneficiary is appropriate under
2. Plaintiffs had failed to post to the
Litigation Website any documents filed in
connection with their motion for
attorney’s fees and incentive awards as of
September 1, 2014 (in violation of the
terms of the Settlement Agreement).
2. Plaintiffs’ motion for fees and incentive awards
was not filed until November 21, 2014, in
accordance with this Court’s scheduling order,
and it was posted to the Litigation Website
thereafter; the Court of Appeal has recently
rejected the timing rule proposed by objector
here.
3. Insufficient information has been
provided to determine whether attorney’s
fees are appropriate (and the fees are thus
presumptively excessive).
3. Settlement website contains plaintiffs’ fee motion
and supporting documents; the Court will decide
the propriety of the fee request; regardless of
what the Court rules, that is no reason to delay
4. Settlement value is illusory.
19
LA131922573
Exhibit A
Objection
Name of
Objector
#15
Aisha Burgess
Jason Huag
(through
attorney
Michael D.
Luppi)
obtain value from the settlement.
1. “Coupon settlement” is inappropriate
here.
terms; California courts commonly approve
“coupon” settlements in cases like this where a
large class of people each has relatively small
claims; this is not a pure “coupon” settlement
because of the free ticket vouchers, cy pres
component, and injunctive relief; this objection
fails to account for the risks Plaintiffs face on the
merits; between discount codes and free tickets,
Class Members receive consideration that is
trial.
2. “The non-economic benefits are not
specific to class members.”
2. This objection is unintelligible.
3. Notice does not provide absent Class
Members with sufficient information to
make an informed choice about whether
to opt-out or not.
3. Class notice directs Class Members to settlement
website, which contains all pertinent information
about the settlement and allows Class Members
to evaluate its fairness.
20
LA131922573
Exhibit A
Objection
Name of
Objector
the settlement.
#16
Susan Kalp
5. Inappropriately “shield[s] attorneys’ fees
from objection by class members by
providing for reversion” back to
Ticketmaster ‘if all the fund is not paid to
class counsel for fees and costs.”
1. “Coupon” Settlement fails to provide any
“meaningful provision for any lasting
remedy” which adequately reimburses
Class Members.
5. The amount of fees that the Court awards will not
diminish from the benefits provided to the Class;
there is no reversion to Ticketmaster, and
Ticketmaster will simply pay what the Court
orders up to a cap.
pres component, and injunctive relief; this
objection fails to account for the risks Plaintiffs
face on the merits; between discount codes and
free tickets, Class Members receive consideration
that is likely far more valuable than any amount
of restitution they would have received following
a trial; this Court previously overruled the
objection that any settlement here must provide
cash.
2. Settlement “leave[s] corrective language
‘subject to the discretion’ of
Ticketmaster.”
2. Any changes to website language must still
convey same “basic message” and Court retains
jurisdiction to enforce this provision.
3. Settlement “includes no provision for
3. Ticketmaster made changes to its website in
21
LA131922573
Exhibit A
Objection
Name of
Objector
injunctive relief.”
#17
Hagele
Holub
Parks
Hughes
Sullivan
(through
attorneys Chris
Lansone and
Mark Lavery)
response to the lawsuit and must convey the same
basic message for seven years; in any event, there
is no requirement that the settlement provide for
injunctive relief, particularly where Plaintiffs did
not seek injunctive relief in their complaint.
4. Settlement provides for an “unnecessarily
short and prejudicial time for consumers
to assert objections.”
4. Objectors had four-months to opt-out or object,
which was more than sufficient under California
law.
5. Cy pres is defective because the program
at the University of California Irvine is
unrelated to the issues in dispute.
5. The cy pres beneficiary is appropriate under
6. Attorney’s fees/costs are excessive.
the settlement.
1. “Conditional” objection on the ground
that “the class w[ill] be unfairly and
unjustly enriched” if the Court does not
grant Objectors’ “Motion for Leave to
Seek Attorneys’ Fees, Costs, and
Incentive Awards” (which is brought
under the equitable common fund and
substantial benefit doctrines).
1.
Ticketmaster has separately opposed the Sullivan
Objectors’ fee motion and explained why fees are
unavailable under California law.
22
LA131922573
Exhibit A
PROOF OF SERVICE
1
2
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
J
I am employed in the aforesaid county, State of California; I am over th9 age^ 9f 1_8 years and not
aparty to the *ittriir action; my business addiess is 1840 Century Park East, Suite 1900, Los Angeles,
CA90067-2121. My email address is riveraal@gtlaw'com.
4
5
On December 8, 2014, pursuant to Judge Kenneth R. Freeman's Order Authorizing Electronic
Service dated Febiuary 28,2013,I served a true copy of the document(s) described as:
6
TICKETMASTER'S RESPONSE TO OBJECTORS in this action by transmitting the document(s)
to Case Anywhere pursuant to the terms in the aforementioned Order.
7
Robert J. Stein,III, Esq.
Raul F. Salinas, Esq.
Claire Schmidt, Esq.
9
Marc Alexander, Esq.
AlvaradoSmith, APC
10 1 MacArthur Place, Suite 200
Santa Ana, CA 92707
11 Tel: 714-852-6800; Fax 7t4-852-6899
Email:
8
Gail Lees, Esq.
Kahn A. Scolnick, Esq.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Anseles. CA 90071-3197
T et: 2tí -ZZrj -l OOO; Fax : 2t3 -229 -7 520
bsoncl
Email:
ounse
t2
13
unsel.for
T4
15
T6
Steven Blonder, Esq.
Much Shelist
191 North'Wacker Drive, Suite 1800
Chicago,
IL
60606
T eI: 312-521 -2000; Fax: 3 12-521 -2100
I7 Email:
aintffi
C
18
t9
X
s.erved on the
addresses
the
e-mail
www.caseanywhere.cop
using
interested parties identified above by
?nd
as
verified
were
transmission(s)
Said
case.
for
this
maintained by www.caseanywhere.ðom
complete and without error.
X
(STATE)
20
2I
13y CASE ANY\ilHERE) I caused the above document(s) to be electronically
I declare under penalty of perjury under the laws of the State of Califomia
22
foregoing is true and correct.
23
Executed on December 8. 2014, at Los Angeles, California.
24
25
Ana
26
27
28
LA1
30766676
vera
that the

DEPT: 310 - Curt Schlesinger et al. v. Ticketmaster

Transcription

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