2011 has produced a number of class actions that have caught the attention of the news media. The class action against Taco Bell, for example, made headlines for the innovation involved in the defendant’s PR strategy. The class action against former President Carter capitalized on a novel theory and a famous defendant. Now, a plaintiffs’ firm has brought a lawsuit against the Dallas Cowboys on behalf of those ticketholders who didn’t get the seats they thought they would at the Superbowl. This appears to be a PR-based class action, much like the ones against Taco Bell and Jimmy Carter. What does I mean by that? Much of the value of each of these lawsuits comes from the threat of adverse publicity rather than the risk of certification. And this case is no exception.
To bring this lawsuit, the plaintiffs had to argue that the NFL’s apology offer (triple the ticket price) wasn’t enough to make them legally whole. And that creates a number of problems for certifying that class. Based on the Amended Complaint [UPLOAD here are a few:

  • Plaintiffs who overpaid for their tickets are suing the wrong people. One of the plaintiffs’ complaints is that they paid far more than the ticket price for their tickets. That means they bought from scalpers. So a court will likely find the NFL’s refund of triple the ticket price to be more than fair. If the class member paid more than that, he needs to talk to his hookup. (This hurts their two breach-of-contract claims, it also hurts their fraud claims.)
  • The plaintiffs are seeking the wrong damages for a class action. They claim in the complaint that this includes travel costs to the Superbowl, and "disappointment and frustration." But the law does not usually award these kinds of damages for breach of contract claims. (The technical term for these kinds of damages is "consequential damages.") And, if it did, it would require the kind of individualized proof (how disappointed was each person) that makes a class action very hard to try. If they just want the ticket price, well, the NFL has already offered three times that.
  • Courts don’t like fraud class actions. Class actions need common proof. Most fraud cases can’t provide that. Instead, to prove fraud, you have to prove that you personally relied on a false statement. Proving that reliance is next to impossible on a classwide basis, which is why most courts do not certify fraud claims.
  • Rich ticketholders don’t make great class-action plaintiffs. Class actions exist to protect the little guy. They’re supposed to aggregate a lot of small claims that people could not bring on their own. But here, plaintiffs like Mr. Dolabi may be out as much as $100,000 (the price he paid for his seat license). If he stayed at a hotel, it likely wasn’t a Motel 8. These guys aren’t the little guys, these are the guys who spend literally tens of thousands of dollars on football tickets. They can afford to bring their own lawsuits, may compromise their ability to demonstrate superiority.

Based on several news items, it seems clear that plaintiffs’ counsel is looking for a quick settlement. But a quick settlement tends to favor the lawyers rather than the class. If there is a settlement in this case, it will be interesting to see how much it improves on the original offer that the NFL made.