In any legal analysis piece—really, any non-fiction writing in any genre— involving Taylor Swift more than tangentially, one is statutorily obligated to include a pun using the title of one of her roughly 2,000 hits. As I am no more familiar with her catalogue than 21st century sentience requires, the above title will have to do.
Swift is at the center of the latest celebrity-inspired RICO lawsuit, this time brought against Live Nation Entertainment, its subsidiary Ticketmaster, and an unspecified assortment of Does. To call it a RICO suit is a bit misleading, as the heart of the case involves antitrust claims under California’s Cartwright Act, part of a series of actions against Live Nation that have followed its 2010 merger with Ticketmaster and its gaining supremacy in the world of top-tier concert promotion.
Cendajas v. Live Nation, filed in Los Angeles state court by a group of nearly 400 Swift fans, generally alleges that the defendants used illegal means to obtain and exploit a monopoly in sales of tickets to major concerts and sporting events. But at the tail end of the 55-page complaint is a federal RICO claim, based on a theory that the defendants were part of an enterprise that engaged in a pattern of federal wire fraud targeting thousands of Swifties.
More precisely, the complaint alleges that Ticketmaster issued special codes to certain fans, including those who had been “verified” by buying a certain amount of Swift merchandise, and promised that only those who received the codes would be able to buy Swift concert tickets at a “presale,” but then arbitrarily denied codes to qualified fans, provided more codes to others than there were tickets available, and allowed millions of buyers (including scalpers) without codes to join the presale. As a result, the complaint says, those who had spent money to obtain codes in reliance on the Ticketmaster representations were unable to buy tickets. The complaint alleges that similar misrepresentations were made through a promotion to Capitol One account-holders.
Whatever the merits of the antitrust theory, there are several potentially serious problems with the RICO claim. First, a RICO plaintiff must allege that the defendants were part of an adequately-defined “enterprise,” which can be identified separately from the defendants themselves. Many federal circuit courts have held that company and its subsidiaries or other corporate affiliates cannot together make up an “enterprise,” as they are essentially part of the same corporate unit. See, e.g., U1it4less, Inc. v. Fedex Corp., 871 F.3d 199, 208 (2d Cir. 2017). While the Ninth Circuit has not addressed that issue specifically, it has held that an enterprise cannot consist merely of a company and its employees (Living Designs, Inc. v. E.I. Dupot de Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005)). Here, Ticketmaster is a wholly-owned subsidiary of Live Nation Entertainment (the complaint even refers to them collectively as “Ticketmaster”), and thus it does not appear that they can combine to form a distinct enterprise for RICO purposes.
Second, a RICO plaintiff must also allege a “pattern” of racketeering, which includes two or more relevant criminal acts that are related and continuous over an adequate period of time (typically more than a year), or else are ongoing. Here, the alleged acts are wire fraud, and the only fraudulent acts specified—the misrepresentations regarding the issuance and value of the presale codes—took place on specific days in November 2022 and August 2023, about nine months apart. That may well not be enough to establish a pattern.
Third, when the alleged racketeering activity is wire fraud, and the case is brought in federal court, the complaint must satisfy Federal Rule of Civil Procedure 9(b), by specifying the details of the fraud, including who did what, and how the scheme was designed to obtain the victims’ property through deception. While this case was filed in state court, it is likely to be removed to federal (as discussed above). And the Cendajas complaint does not say which of the named defendants—Live Nation and Ticketmaster—did what with respect to the alleged presale fraud.
Fourth, by the same token, it is not clear that the plaintiffs—or at least some of them—suffered harm to their “business or property,” another requirement for bringing a RICO claim. Those who bought Swift merchandise in reliance on defendants’ promises that it would help them get presale access might satisfy this hurdle. But the complaint does not say which plaintiffs fall into that category.
I would expect the defendants to remove the case to federal court based on the RICO claim, and then move to dismiss that claim, with a fair chance of prevailing. If the plaintiffs want to remain in state court, one option would be to replace the RICO count with one under California Penal Code § 496(c), which effectively allows a private lawsuit for treble damages against a defendant who obtains property through fraud. The remedy is the same as under RICO, but the pleading requirements are easier, and the state court venue would avoid the stricter standards applied under the Federal Rule of Civil Procedure.
As the RICO claim is currently drafted, I suspect that the defendants will be able to Shake It Off, and whether they want to or not, the plaintiffs will have to Begin Again if they don’t want that section of the complaint left with a Blank Space. Oh, hell. Look what you made me do.
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