You may have noticed that it’s been quiet on the public sparring front in the “TicketGate” litigation.  The reason is that there have been no new public offers to the named Plaintiffs or the putative class. The putative class are the ticket-holders who are not the named plaintiff’s but may be covered as part of the class if and when the class  is certified by the court.  This is an important distinction in the current dispute.

The class representative plaintiff’s have filed a motion to prevent the NFL and other Defendants from further communicating any other offers of settlement or discussing prior offers with the putative class(who also happen to be the NFL’s customers).  This would effectively end the NFL’s effort to settle this cases directly with the ticket-holders and guarantee protracted litigation.  Here is the motion of the NFL to prevent this from happening.

While I am not a class-action expert, it seems to me that as long as the class has not yet been certified, the NFL is entitled to engage in settlement communications and settle directly with putative class members who choose to do. Why?  Until the class is certified by the court there is no attorney-client relationship between plaintiff’s counsel and the non-representative potential class members.  The NFL should be free to contact these individuals, engage in settlement negotiations and get releases and long as they are not coercing them or misrepresenting anything.

Courts generally permit pre-certification communication with putative class members absent a court order or evidence indicating that the communication is coerced, misleading or otherwise improper.  As long as the NFL is not making fraudulent representations to the class members or pressuring them to sign a release without benefit of counsel, I see no problem with continued efforts to settle with the class.

What the NFL can not do is communicate with the named class representatives(the plaintiffs named on the lawsuit) as they are directly represented by counsel.

I  understand the apprehension of plaintiff’s counsel.  Increased settlement offers to the class decrease the overall value of the case and there is the danger that a good offer goes viral and shrinks the class considerably.  Additionally,  who knows when the class will get certified, if at all.  While the certification battle is taking place, if there are no restrictions in place, the NFL can continue to contact the potential class members and attempt to settle individual cases. It is therefore to the NFL’s benefit and extremely prudent to keep things moving on the settlement front directly with the ticket holders.  It will fight certification tooth and nail while it tries to settle individual cases.

Bottom line? I believe the Plaintiff’s motion will be denied.  The NFL  will be allowed to continue to contact the potential class members and attempt settlement of the individual ticket claims.

By the way, this is my personal opinion.  It is not legal advice.  You pay for that.  This is free.

I have been wondering how either brokers or online ticket resale portals like Stubhub come into play in Superbowl Ticket-Gate XLV.

I  started looking into ticket scalping and  re-sale laws of which there are a few in some states. Being a Steelers fan and from Pennsylvania,  I decided to see what Pennsylvania law has to say if anything, on the subject.  Here is what I found:

Under the old Pennsylvania ticket resale law, only licensed brokers could resell tickets, and then for a maximum of 25 percent about face value. The new law, passed in 2007 is  Senate Bill 86. It removed the cap AND requires that the reseller to guarantee a full refund if the event is canceled OR “the ticket does not conform to its description on the internet website” The latter clause seems interesting. This seems to be the essence of the Ticket-Gate claims does it not?  Note that is says FULL refund, not the face value of the ticket.

A Pa attorney can jump in and correct me if he/she wants but it would seem that disenfranchised  Pennsylvania ticket holders, presumably Steelers fans,  of which I suspect there are a few, have a pretty good argument that under Senate Bill 86,  they are entitled to a full refund from their online reseller for the full amount paid for the ticket.

As StubHub seemed to be the major portal of resale for SuperBowl XLV tickets,  I then took a look at their Terms Of Service(TOS) and particularly their “Fan Protect” guarantee.  The relevant clause is:

“If tickets are invalid and are not honored by the venue”

• “If replacement tickets cannot be found, or if the Buyer was not able to contact StubHub before the event, StubHub will provide the Buyer with a prepaid FedEx shipping label to use in returning the tickets to StubHub along with a Ticket Return Form. Upon confirmation by the venue that the tickets were invalid, StubHub will issue the Buyer a refund for the full cost of the tickets, including service fees and shipping and handling charges”

StubHub will certainly argue that “valid” means getting in and not the specific seat but it would seem there is a good argument that Ticket-Gate tickets were invalid and  StubHub may be be on the hook for a full refund.

I have no idea how many Ticket-Gate tickets were purchased by online re-sellers and what states they live in.  It however seems worth noting that there appear to be other options to get at least your ticket outlay back.  If it were me, I would certainly be looking into whether my state regulates ticket broker and online re-sellers.

*update 2/12/2011  I have emailed StubHub asking for their position on returned tickets.  If they respond, I will post it.

By the way.  This is my personal opinion and not legal advice.  You pay for legal advice. This is free.

Here is the filed petition in federal court for the Northern District Of Dallas.   I will be posting filed documents on my web site as they become available.

As I sit here watching the ESPN 30/30 special on the SMU “Pay For Play” scandal, I think back to my friendship with one of the key figures, briefly touched on, who was also promised by SMU, took, felt betrayed and spoke out.

In 1985, I was a 2nd year law student at The University Of Pittsburgh. I had made a couple trips to Dallas during summer breaks to visit my brother Mark who had moved there several years earlier.  My knowledge of Dallas for the most part consisted of the television show namesake and the Dallas Cowboys who I hated being a die-hard Pittsburgh Steelers fan. I had only a vague understanding that Southern Methodist University existed.

One evening, I was  working out at the local gym, having a tough workout as I struggled to get the selected weight up.  All of a sudden, the weights rose with ease.  I looked back and standing behind the machine, helping me with my set was this huge “marshmallow man” looking guy with a smile on his face. When I say huge, I am talking 300+ lbs. A combination of fat and muscle that to me resembled a giant marshmallow.  He urged me through my set and introduced himself as Sean Stopperich.

We struck up a friendly conversation while we worked out. He mentioned that he had gone to high school at Cannon-MacMillon which was a suburban Pittsburgh high school not far from Mt. Lebanon High were I went to school. He had played football and wrestled. He related that had been attending school in Dallas but had left there and  enrolled at Temple University for that next fall. He hoped to play in their football program.

I mentioned that my brother Mark lived in Dallas. I was thinking of moving there and was driving down that next week to visit him.  Sean asked if he could tag along and volunteered to drive.  We packed up Sean’s Honda Civic and hit the road.  We may have set a land speed record covering the 1200 mile distance from Pittsburgh to Dallas in 15 hours.  Blazing across interstate 40  through Arkansas at 104 miles an hour we were pulled over by a State Trooper. I was terrified, thinking we were going to be spending our night in “Small-Town Beatdown” USA.  To my surprise the trooper simply gave Sean a ticket and told him to slow down.  The moment we were back on the road and the trooper was out of sight,  Sean, rolled down his window, laughed and said, ” I ain’t coming back to Arkansas”.  He ripped up the ticket and tossed it out the window.  Unfortunately for Sean, I neglected to tell him that I could not operate a standard transmission.  When he got tired,  we pulled into a rest area to give me a crash course in the use of a stick.  Unfortunately I was not a quick learner.  He decided that we would get there quicker if he sucked it up and drove the entire way.

During the trip, Sean talked about his involvement in the scandal.  While he did not relate too many specifics, he told me he had been given Five Thousand Dollars to sign a letter of intent and his father Carl had been promised a job and housing. The only other thing he said was that he hurt his knee and that after that, “it went bad for him and his family”  He also mentioned that his mother was forced to start working as a cleaning lady to make ends meet.  Sean was however, looking forward to attending school at Temple and thought he would do well in their football program.

We got to  Dallas and the 1st thing we did was pull into a  Jack In The Box.  I remember that Sean spent about 30 dollars on his own order of many burgers and a milk shake.  I had never seen anyone spend 30 dollars on their own fast food order.  I was in awe.  When we arrived at my brother’s place, I was hyped to go out and party. Sean was very cautious, telling me that he had to avoid the SMU campus as well as the local bars. It still did not really hit me why he was so worried about running into those who attended SMU.  Sean simply said that the troubles he related to me during the drive down had rendered him extremely unpopular on campus, especially within the athletic program.  He just wanted to  quietly visit a few friends he still had in the area.  Sean was so worried about being seen by people who were invovled with SMU, he was even afraid to go to the Mall.  I ran errands for him to get him what he needed.

Despite Sean’s fear of being recognized, we had a great time hanging out with my brother and his friends.  Sean and I became good friends. Close enough that he asked me to help him inject steroids.  It was my first exposure to steroids and the 1st and last time I ever stuck a needle in another guy’s buttocks.  I remember him telling me it was stuff they gave to horses.

We never talked about his involvement in the SMU scandal again. We returned to Pittsburgh and continued to work out together through the summer and fall until he left for Temple.  We stayed in touch sporadically after that. Not long after he enrolled, he  told me he was involved in a car crash, sustaining football career ending injuries.

Sean died in 1995 of a drug overdose. Ironically, the same fate as David Stanley, who was featured in the 30/30 special. It  saddens me that even today, so long after the scandal and years after his death, he is still vilified by people, many who were not even born or were in their single digits when the events occurred.

I knew Sean and and can tell you he was a fun loving, nice, compassionate kid who came from nothing yet had what seemed at the time like everything dangled in front of not only him but his family.  Tough pressure for a teenager.  Tough for anyone.