NPS, LLC v. StubHub, Inc.

NPS, LLC v. StubHub, Inc.

Opinion

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

The New England Patriots ("the Patriots") have brought this action seeking, among other things, permanent injunctive relief barring defendant StubHub, Inc. ("StubHub") from participating in the resale of Patriots tickets on its internet website. ³ As against StubHub, the Amended Complaint claims (1) intentional interference with advantageous relations (Count I); misappropriation of name (Count II); and unfair trade practices in violation of G.L.c. 93A, §11 (Count III). ⁴ In Count VII, the Patriots ask the Court to hold all StubHub profits obtained through the sale of Patriots' tickets in a constructive trust. StubHub has moved for partial summary judgment on Count I. For the reasons detailed below, the motion is DENIED.

BACKGROUND

The following facts are undisputed unless otherwise noted. Each season, the Patriots make available tickets to home football games. Over 95% are season tickets issued by NEP; the balance are premium seating tickets issued by NPS. Until 2007, the following warning was printed on the back of each ticket in large block letters:

ANY NON-LICENSED INDIVIDUAL RESELLING THIS TICKET BY ANY METHOD INCLUDING WITHOUT LIMITATION, IN PERSON, ON AN AUCTION WEB SITE, OR OTHERWISE OVER THE INTERNET AND ANY LICENSED INDIVIDUAL OR ENTITY RESELLING THIS TICKET IN VIOLATION OF APPLICABLE LAW, IS SUBJECT TO ARREST, LEGAL ACTION AND LOSS OF SEASON TICKET PRIVILEGES." ⁵

In addition, each ticket stated that it was a revocable license, that the Patriots reserved the right to revoke the ticket at any time and for any reason, and that the Patriots may refuse admission to, or eject, any ticket holder who fails to comply with any applicable rules or terms.

In an effort to maintain what the Patriots describe as a safe, secure, and family-friendly environment for home games, they have exercised their right to revoke season tickets when ticket holders, either the ticket owners themselves or their guests, have engaged in what the Patriots consider to be unsafe or unacceptable conduct. See Yarde Metals, Inc. v. New England Patriots, LP, 64 Mass.App.Ct. 656, 660, 834 N.E.2d 1233 (2005). Thus, for example, should a season ticket holder give his or her tickets to another person for any single home game, and should the Patriots eject that person for unacceptable conduct, the Patriots may revoke the season tickets, regardless of the  [*4] fact that the original holder was not present at the game. Upon learning that a ticket holder has impermissibly transferred a ticket or tickets, the Patriots have revoked that holder's season tickets and refunded the full face value. In this way, all season ticket holders are responsible for the behavior of their guests. In order to effectuate this policy, each ticket bears a unique bar code that is electronically scanned upon entrance. Should the Patriots cancel a ticket, the bar code is voided, and the ticket is useless.

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