A federal judge from the Northern District of Ohio has denied a fan’s motion for class certification in a case in which the aggrieved fan sued the National Football League (NFL) and the National Football Museum, Inc. d/b/a the Pro Football Hall of Fame, when the defendants cancelled the Hall of Fame game because of the defendants’ alleged mismanagement.
The game in question pitted the Green Bay Packers and the Indianapolis Colts. It was set to be played on Aug. 7, 2016 at Tom Benson Hall of Fame Stadium in Canton, Ohio.
The turf at Benson Stadium, in the past, had caused injuries resulting in reconstruction of the stadium and its field. However, reconstruction was not completed in time for the 2016 Hall of Fame game. A used field was imported from the Superdome in New Orleans to be used for the game. Decking was constructed on the field for a concert to be held two days prior to the game. The defendant failed to inform fans that the field construction was incomplete at game time with whole sections of seating left uninstalled. There was not enough seating to accommodate the number of tickets purchased. Nor was the decking removed from the field until 2:45 p.m. The ground crew was left with little time to prepare the field as a result. They painted the midfield logo and endzone lettering but left insufficient time for it to dry before the game began. To speed the drying process the ground crew heated the field, resulting in melting the rubber pellets comprising the turf, creating a slick, sticky, congealed mess.
With two and a half hours to go before the start of the game, the crew applied a substance to remedy the problems with the field, however, a Green Bay Packer employee noticed that the substance contained a warning that contact with skin would result in burns. It was then that the players were ordered off the field. The team doctors and NFL Players Association representative all advised against playing on the field. No one informed the ticket purchasing public that the game would be cancelled until fans were inside the stadium, according to the complaint. The defendant failed to report the cancellation for one to two hours after they knew it was to be cancelled. This was, allegedly, by design so fans would purchase food, drink and souvenirs at the stadium as they waited for the game. Finally, at 8 p.m. fans were told the game was cancelled.
On Aug. 23, 2016, plaintiff Greg Herrick, on behalf of himself and a putative class, sued the defendants in the United States District Court for the Central District of California for breach of contract. Further, he sought to certify a nationwide class under Fed. R. Civ. P. 23(b)(3) made up of people who paid for and/or acquired tickets to the game.
The tickets in question came in one of five versions, 1) a commemorative ticket, 2) a thermal ticket, 3) the Etix ticket, 4) the print-at-home ticket and 5) the mobile ticket. These tickets formed a contract between the purchaser and the defendant wherein, according to the plaintiff, purchasers paid money for the seats to the game in exchange for the defendant providing them a game to watch. The material terms of each of the above five types of tickets are the same. None of the tickets absolved the defendant from liability to pay legal damages if it cancelled the game nor do the tickets limit the types of damages recoverable for breach.
In his complaint, he alleged out of pocket ticket costs, lodging and travel expenses, food and souvenir purchases and missed employment time.
“There were several different types of tickets purchased for the 2016 HOF game with varying terms and conditions,” wrote the court. “Based on the fact that some tickets contained exculpatory language, an individualized inquiry into the type of ticket purchased would be necessary to determine if a putative class member were, in fact, a member of the class as defined by the plaintiff. Furthermore, the defendant contends that any determination of damages would necessarily require individual inquiry as the particular categories of damages -i.e. ticket prices, travel expenses and lodging expenses, which vary widely across the class and are largely dependent on the distance a putative class member traveled to the game and the mode of transportation used by the ticket holder to arrive at the game. Because these vary widely, they would require separate individualized inquiries, militating against a finding that a class action would be the superior method for resolving these claims.”
The court agreed with the defendant, adding that “it is impossible to reasonably estimate class-wide damages as they will vary widely based on individual factors so numerous as to render any attempt to estimate unreliable. The game attracts fans from all over the country, presenting highly individualized inquiries into method of travel, time of travel and type of travel. The Court agrees with Defendant’s expert, Dr. Burke, that the distance one lives from the game does not indicate the method used to travel to the game. One’s own economic circumstances dictate to a large extent the method of travel. Plus, Dr. Hastings methodology does not account for the fact that many fans travel to games in buses. Lodging varies widely, depending how long someone stays in the area before and after a game; and that decision is highly individualized based on many factors, including one’s economic circumstances. Varying ticket prices based on location of seats, whether they were purchased on the primary or secondary market, or which type of ticket was purchased, all militates strongly against class certification. When also considering Plaintiff’s other proposed damages of wage losses and products purchased at the game there is simply no way to reasonably estimate class-wide damages, therefore militating strongly against the plaintiff meeting the Rule 23(b)(3) requirement that class issues predominate over individual issues.
“In Simms, et al. v. Jones, 296 F.R.D. 485 (S.D. Tex. 2013) under facts similar to those before the court, the Texas district court denied class certification for a class of ticket purchasers for the 2011 Super Bowl. These ticket purchasers alleged breach of contract based on temporary seats being unavailable. In denying class certification, the court found that damages would be too individualized to adjudicate on a class-wide basis. In Sims, the court held that should it certify the class, which consisted of approximately 40 members, the trial on the merits would devolve into 40 mini-trials solely to determine damages. Id. at 500. The court determined ‘it is therefore clear that individual issues predominate over the one remaining common legal issue.’ Id.
“Here, the same concerns apply, but on a much larger scale as the putative class numbers approximately 3,000. Any attempt to determine damages would necessarily involve 3,000 mini-trials, defeating the purposes of a Rule 23 class action. Therefore, for the foregoing reasons, the court finds individual questions of damages predominate over common question of law or fact and the plaintiff has failed to meet its burden demonstrating that a class action is the superior method for resolving the breach of contract claims. Thus, the court denies the plaintiff’s motion for class certification.”
Carmelo Treviso v. National Football Museum, INC.; N.D. Ohio; CASE NO.1:17CV472, 2018 U.S. Dist. LEXIS 164259; 9/25/18
Attorneys of Record: (for plaintiff) Michael J. Avenatti, Eagan Avenatti, Newport Beach, CA; Romney B. Cullers, Becker Law Firm, Cleveland, OH. (for defendant) Scott M. Zurakowski, LEAD ATTORNEY, Aletha M. Carver, Amanda M. Connelly, James M. Williams, Joseph J. Pasquarella, Krugliak, Wilkins, Griffiths & Dougherty – Canton, Canton, OH.
