Bowery Presents Avoids Arbitration In Ticket Case

The Bowery Presents LLC v. Pires, No. 653377/2012, NYLJ 1202608931096, at *1 (Sup. Ct., N.Y. Co. decided June 24, 2013) (Bransten, J.S.C.).

Bowery Presents, a concert promoter, moved to stay arbitration that had been filed by the respondent ticket purchaser on the basis that Bowery Presents was not a party to an arbitration agreement with the respondent.  The Court granted the motion and stayed arbitration.

Bowery Presents had entered into a written License Agreement with Live Nation Entertainment, Inc. (d/b/a Ticketmaster) ("Ticketmaster") under which Ticketmaster was to act as Bowery's agent for the sale and distribution of tickets to entertainment events.   Bowery Presents was the promoter for a March 28, 2012 event to which the respondent purchased a ticket through the Ticketmaster website.  In order to purchase her ticket, Respondent was required to agree to the "Terms of Use" on Ticketmaster's website. The Terms of Use contained an arbitration clause: "Live Nation and you [user of ticketmaster.com and its related websites] agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted." 

In the arbitration, Respondent asserts a claim pursuant to §25.33 of the Arts and Cultural Affairs Law of the State of New York ("ACAL") to recover damages and injunctive relief arising from Bowery's alleged violations of §25.30(c) of the ACAL by employing a paperless ticketing system.  Respondent contended that Bowery violated ACAL §25.30(c) by employing a paperless ticketing system without providing the consumer the option of purchasing the tickets in a transferable form.  Respondent thus filed a demand for arbitration.  The issue was whether Bowery Presents, a nonsignatory to the arbitration agreement, could nonetheless be bound by the arbitration clause.

The Court found that Ticketmaster was Bowery's limited agent and, therefore, Bowery was not bound by the arbitration clause in the Terms of Use.  Moreover, the Court found that even if Ticketmaster did possess sufficient authority to bind Bowery Presents to an arbitration agreement, the plain language of the arbitration clause at issue bound only Ticketmaster and the ticket purchaser to arbitration, not Bowery Presents. 

Suit Over Fees for Unlicensed Theatrical Agent

American Guild of Musical Artists Inc. v. Columbia Artists Management LLC, No. 08-603427 (Sup.Ct., N.Y. filed 11/24/2008)

Summons with notice for declaratory judgment declaring that the defendant cannot collect fees from the plaintiff's members for the time that the defendant was in violation of Article 11 by being an unlicensed theatrical employment agency.

Jurisdiction and Transfer Decision in MP3tunes

The District Court, Southern District of New York, has found that personal jurisdiction exists over MP3tunes but not over its CEO, Michael Robertson. (Background here.) Further, venue and forum were proper, such that the suit will not be transferred to the Southern District of California.

Capitol Records Inc. v. MP3tunes LLC, No. 07-cv-9931, 10/3/08 N.Y.L.J. "Decision of Interest" (S.D.N.Y. decided Sept. 29, 2008).

PERSONAL JURISDICTION

The case analyzed personal jurisdiction over both MP3tunes and Robertson under New York's long-arm statute (CPLR 302). Because MP3tunes is an interactive website, provides users with software, transfers of music files, and allows for the exchange of e-mails/postings, the court held that MP3tuns "transacts business in New York" under the long-arm statute. Further, the website's minimum contacts with New York meant that the assertion of personal jurisdiction would not offend "traditional notions of fair play and substantial justice."

Robertson, however, was not subject to the court's personal jurisdiction. There was no competent evidence that the CEO's only activities in New York (a single meeting and a speaking engagement at an industry forum) related to plaintiffs' claims. Nor was there competent evidence to show that Robertson exercised control over the corporations allegedly infringing activities in New York (important, because an individual defendant may also be subject to jurisdiction under New York's long-arm statute if a corporate defendant is acting as his agent).

VENUE
A defendant "may be found", pursuant to 28 U.S.C. 1400(a), in any district where the defendant is subject to personal jurisdiction. Therefore, the motion to dismiss for improper venue was denied.

TRANSFER
The Court examined nine transfer-factors and denied defendants' motion to transfer the action.