How Will the Ticketmaster Case Impact the Arkansas Hannah Montana Investigation?
The Arkansas Attorney General is investigating 5 software providers regarding ticket sales to the Hannah Montana concert in Little Rock (coverage here by Arkansas Business). Ticketmaster recently won a preliminary injunction against one such software provider in Ticketmaster, LLC v. RMG Technologies, Inc. (posted here 10/18/07). How will this injunction affect the Arkansas investigation?
The Ticketmaster case should not have any effect, because consumers do not have standing to bring a cause of action. First, there is no direct communication between the software provider and the consumer. Without a direct communication, there can be no fraud or deceptive trade practice or contract between the parties to breach. Second, the software provider never accesses the consumer's computer or any property of the consumer. The software at issue manipulates Ticketmaster's website and computer system; the consumer cannot have a claim for an interference with Ticketmaster's property.
The most important hurdle is damages. Consumers have no damages against the software provider because they were never guaranteed a ticket, much less guaranteed a ticket at the face value. The only possible claim would be the loss of, or interference with, a fair opportunity to obtain a ticket. This is too speculative to be compensable. More importantly, this type of injury would fail to state a claim under the Arkansas Deceptive Trade Practices Act. See Wallis v. Ford Motor Co., 362 Ark. 317, 208 S.W.3d 153 (2005). An attempt to bring an ADTPA claim here would be an overextension of the ADTPA, something I cautioned against in a recent article. See 29 Univ. Ark. Little Rock Law Rev. 283 (2007).
As to the individuals reselling the tickets at a premium, they are violating the anti-scalping law. See A.C.A. § 5-63-201. However, this statute does not create a private cause of action, and a violation is only a misdemeanor punishable by a maximum fine of $500 per offense. Prosecuting attorneys are not about to drop everything to focus on misdemeanor arrests, nor should they. Consumers who purchased tickets from scalpers could have a claim for breach of contract as far as the contract was for illegal subject matter. Of course, damages would be limited to the amount paid in excess of the face value. It would not be worth the costs associated with bringing a lawsuit.
