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False advertisement by Athletics and its ticket selling agents. Who should be responsible? And any possible class action?

San Jose, CA |
Filed under: Class action

I never went to Athletics game before.

When I saw stubhub.com's ad "Yoenis Cespedes Bobblehead Night", I purchased the 8/17/2013 game ticket on 8/16/2013 evening because I wanted this bobblehead. The ticket price was also jacked up $10 min each as opposed to 8/16 and 8/18 games against same opponent. But Athletics changed its gate opening time for this game from normal 2-hr ahead to 4-hr ahead such that there was no way I could get this bobblehead without knowing the correct gate opening time.

Athletics Guest Service told me they informed ticket holders buying tickets directly from them beforehand. Since stubhub.com did not notify its customers the gate open time change, who should be held responsible because those buying for bobblehead would not get it at all?

Class action possible?

Attorney Answers 2

Posted

Your question seeks several answers. First, who is responsible. Your claim for the purported "false advertisement" would be against the entity who adervtised the event, and upon whose advertising you relied. That's stub hub. Unfortunately, stub hub has a host of disclaimers concerning their role in brokering tickets to multiple entertainment events. While we have had success in a class action against Ticketmaster, your potential claim against stub hub is for "damage" caused by a change in gate times by another party. Second, you ask whether there is a potential class action. Its unlikely against stub hub. As for the Athletics, they potentially have an even better defense: the disclimer on the ticket itself. Sporting events, as with most live entertainment, seek to limit their liability by disclosing on the ticket that they are only selling a "license" to see the event, revocable largely in their discretion. The bobblehead was part of a one-time promotion, which the Athletics likely disclosed was "first come, first serve." A recent class action by purchasers of Superbowl tickets denied access to the seats they bought was recently rejected. While we would like to help you, your best recourse is perhaps to contact the Athletics's promotions dept and see if they can't accomodate you, given that you made the ticket purchase for the reason you did. Good luck.

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Asker

Posted

So does it mean that as long as Athletics and stubhub make disclaimers, they can put on any false advertisement because they used this advertisement to jack up price and attract audience wanting this bobblehead? In fact, the Athletics marketing director admitted that the bobblehead promotion at least attract 5000 additional audience in an earlier interview published in June this year. So consumers do not have any protection from this kind of advertisement scam?

Donald E. Haviland Jr.

Donald E. Haviland Jr.

Posted

I didn't mean to be dismissive of your claims, only sober about the realities of suing large companies in a class action. Our clients tend to appreciate straight advice. You may have claim worth pursuing under California's consumer friendly laws, depending on whether indeed higher prices were charged for an under-supplied promotion. I would be happy to discuss with you to help you obtain a resolution.

Asker

Posted

I thought class action is usually against big corporation because those have deep pocket? During the game, I heard many were complaining Athletics' changing gate opening time. And in such a way Athletics' ticket holders were indirectly guaranteed a giveaway, while Athletics allured many others not normally going to the game went to the game at much higher price without bobblehead giveaway. That is why I am wondering how class action would work. In particular, the cost of 15,000 bobbleheads provided by Athletics is much lower than the jacked-up ticket prices plus 5000 or more additional audience. In fact, I already complained to Athletics directly for a replacement (at Athletics' discretion) but it seems Athletics is not willing to do anything, even at such a small cost. I subsequently complained to BBB and am waiting for a response. Next step is probably to complain to California Attorney General. It is not really a matter of small promotional item. It is the false advertisement scam making me very upset.

Posted

I agree with the previous post that the best recourse is informal -- a phone call to the A's guest services or something to that effect.

Under Business and Professions Code 17200 or 17500, you would need to show reliance on a material misrepresentation. In this case, it appears that the gate opening time is the issue. Unless that time was disclosed on the ticket, on Stubhub, or somewhere else, I think the case is pretty weak. Even if the gate opening time were disclosed, the bobblehead is technically a free giveaway so getting restitution under 17200 or 17500 would be dicey. I don't see this as an attractive class action.

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Posted

I agree that for such a small item worth less than $2.50 per piece, it is probably not worthwhile for a class action. However, thank you for referring me to the Unfair Competition Law 17200 and its false advertisement provision 17500. So speaking of law, I think there is sufficient material evidence to show A's used Bobblehead promotion to gain additional profit (in fact, many sports leagues used the identical tactic). Now the question became whether A's advertisement is "fair" to all consumers. UCL only requires a showing that "members of the public are likely to be deceived." When I contacted A's Guest Service for an equivalent replacement at their discretion (i.e., any one in stock, not necessarily the same one on game day), to my surprise, A's became defensive regardless each bobblehead worth less than $2.50. A's sent me bunch of much earlier announcements scattered in a few places and their emails to ticket holders regarding gate open change (in fact, those unmarked customers' email addresses might be against privacy law). I carefully reviewed the times those emails sent to ticket holders by A's and found those times were all earlier than my ticket purchase time 6:29 pm, 8/16/2013 (for 8/17 6:05pm game). That means A's did not automate the email notification to customers buying tickets close to the game - an obvious "unfair competition". How would customers buying tickets close to the game know the gate open time already changed? Furthermore, A's claimed my ticket was bought on StubHub and blamed StubHub's lack of communication. However, the email address I used on StubHub was a brand new one. Ever since I bought ticket on StubHub, A's has been emailing me junk advertisement emails on daily basis without my permission. It is impossible A's knows this particular email address unless obtaining from StubHub. Therefore, A's can not simply blame StubHub on lack of communication. A's should have sent the gate open change email to me rather than those junk advertisement emails. Back to the era prior to California State mandating auto dealers to list VIN on their advertisements, it was common that auto dealers advertised super low prices but when customers went, dealers would simply say all stocks at that price sold (actually not exist at all). There was no damage or injury, except consumers wasting time to visit dealers. I guess Legislature needs to make some effort to regulate the sports leagues as well.

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