Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—Cal. App. Ct.: Motion to intervene in settlement with Ticketmaster dismissed as untimely, prejudicial, (May 12, 2014)

By Jody Coultas, J.D.

A ticket purchaser objecting to consumers’ proposed settlement with Ticketmaster for adding a variety of charges to a ticket purchases was properly denied an opportunity to intervene, a California appellate court has held (Schlesinger v. Ticketmaster, May 8, 2014, Chavez, V.). The trial court properly held that a motion to intervene was untimely and prejudicial to other parties.

The purchasers bought tickets from Ticketmaster over the Internet and paid a "Building/Facility Charge," a "Convenience Charge," an "Order Processing Charge" (OPC), and a UPS Delivery fee. The purchasers alleged that the OPC and the UPS fees were sources of profit for Ticketmaster, and that they would not have purchased from Ticketmaster had they known Ticketmaster profited from charging the two fees. The fees, the purchasers alleged, violated California’s consumer protection laws.

After the parties agreed to settle the case, another ticket purchaser filed a written objection to the proposed settlement based on the settlement capping certain benefits offered to class members on a per transaction basis at 17 transactions. The intervening purchaser moved to intervene, but the court found the motion untimely. The litigation had been filed more than nine years earlier and had been certified two years prior to the motion. The trial court found that the intervening purchaser failed to show cause for not intervening sooner. The court rejected the argument that timeliness should be measured from the date that the court denied final approval of the settlement.

The appellate court declined to overturn the timeliness finding. Both mandatory and permissive intervention must be timely filed. Although there is no statutory time limit on motions to intervene, courts consider: (1) how long the proposed intervener knew of the litigation; (2) whether allowing intervention would delay the proceedings or prejudice the parties; and (3) whether intervention might inject additional issues into the litigation. The intervening purchaser was aware of the litigation for over a year, and a proposed settlement had been reached. Because discovery had been completed, there was a concern that intervention might delay the proceedings further or interject new issues into the litigation. There was no manifest abuse of discretion that would require reversal of the court’s decision.

The trial court acted within its discretion in rejecting the intervening purchaser’s argument that he had no reason to know of his alleged adverse interest prior to the trial court’s denial of approval of the proposed settlement, according to the court. The intervening purchaser argued that timeliness should be measured from the date the proposed intervenor should have been aware that his interests were no longer protected by the parties, rather than the date he/she learned of the litigation, and that the court should have focused on the precise time and event that triggered the need for intervention. The intervening purchaser was notified of the proposed settlement in November 2011, and failed to explain why his initial review of the settlement, which instigated him to file the objection, did not trigger the motion to intervene. None of the case law cited by the intervening purchaser required the court to allow the motion to intervene.

The trial court adequately addressed the issue of prejudice, according to the court. The intervening purchaser argued that the trial court failed to sufficiently address the issue of how his intervention would actually prejudice the existing parties. However, the court noted that an intervention would enlarge the issues involved, reopening discovery, and further motion activity. The intervening purchaser had argued that he needed no further discovery, was not seeking a continuance, and was ready to proceed to trial. There was no basis to force the trial court to adopt the intervening purchaser’s perspective on the issue of prejudice.

The case is No. B248597.

Attorneys: Robert J. Stein III (Alvaradosmith) for Curt Schlesinger. Frank E. Meridith, Jr. (Greenberg Traurig) for Ticketmaster. Christopher J. Conant for Eric Fuller.

Companies: Ticketmaster

Cases: StateUnfairTradePractices CaliforniaNews