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Seventh Circuit OKs dismissal of suit against Live Nation over parking fee on concert ticket; says bundling may be annoying but it wasn't illegal

By Jonathan Bilyk | Mar 26, 2014

A man who sued the nation’s largest live entertainment company over parking fees that were included in the price of concert tickets, whether or not a vehicle needed to be parked at the venue, will not be allowed to continue his case, a federal appeals panel held.

The Seventh Circuit Court of Appeals on Monday upheld the ruling of U.S. District Court Judge Gary Feinerman, who had dismissed the action brought by plaintiff James Batson against Live Nation Entertainment.

The panel --Judges Diane Wood, Richard Cudahy and Ilana Diamond Rovner-- determined the concert promotion company’s policy didn't run afoul of any laws or cause concertgoers any real harm.

The decision marks the latest ruling against Batson in the legal battle that dates back to 2011.

At that time, Batson filed suit against the California-based Live Nation, which bills itself as “the largest live entertainment company in the world,” after he attended an O.A.R. concert in July 2010 at Charter One Pavilion on Northerly Island in Chicago.

Batson said he walked to the venue and purchased his ticket at the door that day. But upon inspection of his ticket, he noticed it included a $9 fee for parking, even though he, like many other patrons at the concert that day, did not drive a vehicle to the venue.

Believing Live Nation’s bundling practice was “fundamentally unfair,” he filed an antitrust and unfair competition complaint against the company under federal and California state law, with the intent of making the suit a class action. When the court indicated it would dismiss the suit, he amended his complaint to allege consumer fraud under Illinois law.

However, in March 2013, Feinerman, the federal trial judge, dismissed that complaint, determining that Batson’s complaint did not rise to the standard needed to sustain such allegations.

Batson appealed, but his arguments encountered similar skepticism from the federal appeals judges who heard the case in November, when New York attorney Christopher Langone presented Batson's arguments and Chicago attorney Sean Berkowitz represented Live Nation.

Batson centered much of his argument on allegations that Live Nation engaged in “tying” – essentially, the act of compelling a consumer to purchase a secondary, less valuable product to get the product they actually want.

He said Live Nation’s “tie-in” offends public policy by effectively reducing “musical diversity” and encourages patrons to drive to the venue, rather than walk or take public transportation, since they will pay for parking whether they drive or not.

The Seventh Circuit judges, however, said they believed Batson’s arguments did not demonstrate any violations of the law, and merely show he was “grasping at straws.”

They said bundling arrangements are fairly common practice for many businesses, including colleges and airlines, among others.

“But while some people may find these bundles annoying, or even unfair, the tie is not illegal unless the standards set forth in the governing antitrust cases have been met,” Wood wrote for the panel.

She went on to explain that Live Nation’s policies were also not “oppressive” or fundamentally unfair, as the company was essentially free to charge whatever it wanted for admission to the show, no matter whether it bundled fees or not.

“There is no rule that requires everything to be sold on a fully unbundled basis,” Wood wrote. “Nothing could have stopped Live Nation from erasing ‘$9 PRK Paid,’ charging $9 more for the ticket, and announcing that there was ‘free’ parking for all who needed it.”

The panel noted in its opinion that it appears, based on recent headlines, that Live Nation has done just that at several of its venues, as a result of a consumer backlash to its parking fee bundling practice.

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