In May 2011, Brian Luko filed a putative class action against Ticketmaster, LLC alleging a violation of the Song-Beverly Credit Card Act, California Civil Code section 1747.08 et seq. (the “Act”).
Luko alleged he ordered tickets through Ticketmaster’s website and received them in two ways: by downloading them over the internet and by U.S. Mail. Luko’s counsel simultaneously filed identical lawsuits against Apple and e-Harmony, which were related by the court.
In Round One, Ticketmaster, Apple and e-Harmony together vigorously argued the Act did not apply to online purchases all the way from the trial court up to the California Supreme Court. In 2013, the Supreme Court decided Apple v. Superior Court (Krescent), in which it held the Act did not apply to online purchases of downloadable goods. However, the Apple opinion left open the question of whether the Act applied to online purchases of shipped goods.
The Supreme Court remanded Ticketmaster’s case to the Court of Appeals for further consideration in light of Apple. The Court of Appeal nonetheless summarily denied Ticketmaster’s writ petition without reaching its merits and remanded the case to the trial court, and the stage for Round Two was set.
The Willenken team immediately moved for judgment in Ticketmaster’s favor, arguing the reasoning in Apple applied to all online purchases, irrespective of the delivery mechanism for the goods in question. Luko vigorously opposed, conceding Apple foreclosed his claim in connection with his downloaded tickets, but arguing Apple’s reasoning did not apply to his claim premised upon his purchase of tickets shipped by mail. And, in any event, the Court of Appeal’s decision to remand acted as “law of the case,” preventing the trial court from even considering Ticketmaster’s motion. Nevertheless, the Court agreed with Willenken’s arguments that the appellate court’s summary denial could not act as “law of the case” and further agreed the Act did not apply to online purchases even where the goods were shipped by U.S. Mail. Judgment was entered in Ticketmaster’s favor, and the putative class action was dismissed.