INDEX NO.

651454/2015

FILED: NEW YORK COUNTY CLERK 04/30/2015 03:55 PM

NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 04/30/2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

JOSHUA FOGEL AND CARL TEGTMEIER,

INDEX NO.
PETITIONERS,
PETITION TO CONFIRM
ARBITRATION AWARD

V.

LIVE NATION ENTERTAINMENT, INC.,

RESPONDENT.

Pursuant to CPLR 7510, Petitioners Joshua Fogel and Carl Tegtmeier (Petitioners)
hereby petition this Court to confirm (i) the Consent Award delivered by Arbitrator Betty
Weinberg Ellerin (the Arbitrator) on April 30, 2014, (ii) the Supplemental Final Award
delivered by the Arbitrator on April 8, 2015, and (iii) the Final Award delivered by the Arbitrator
on April 15, 2015 (collectively, the Award). In support thereof, Petitioners aver as follows:
THE PARTIES
1.

Petitioners are New York residents.

2.

Respondent Live Nation Entertainment, Inc. (Live Nation) is a Delaware

Corporation with its principal place of business in Beverly Hills, California. Live Nation
conducts business in New York at 220 West 42nd Street, New York, New York. Live Nation
does business in New York under the names Live Nation and Ticketmaster and
Ticketweb.
FACTS
3.

Petitioners purchased tickets to entertainment events in New York (the Events)

using Respondents website. Respondent sold the tickets to the Events on a will call only basis.
No other form of ticket was offered to Petitioners.

4.

No paper ticket was ever issued to Petitioners. All they received were emails

confirming their purchases.

5.

Since Petitioners purchases had been paperless, they could not simply transfer

their rights by means of physical transfer as would be possible with paper tickets. When
Petitioners attempted to exercise their statutory right to transfer their tickets, Respondent refused
to allow the transfer.
6.

The Terms of Use published on Respondents website provide for consumer

arbitration pursuant to JAMS Streamlined Arbitration Rules and Procedures.

7.

Tegtmeier commenced his arbitration against Respondent on September 7, 2012.

8.

Fogel originally asserted his right of action against Respondent by filing a

putative class action in federal court on September 10, 2012. Fogel v. Live Nation Entertainment,
Inc., 12 Civ. 06816 (JMF) (JCF). At the time that action was filed, Fogel and his counsel
mistakenly believed that the Terms of Use in effect at the time he purchased the ticket at issue
did not provide for arbitration. When Respondent provided Fogels counsel with evidence that
the applicable Terms of Use did provide for arbitration, Fogel promptly agreed to proceed to
arbitration. By stipulation and order entered by the federal court on November 9, 2012, the
dispute was referred to arbitration.
9.

The arbitrations were consolidated by agreement of the parties.

10.

Prior to the arbitration hearing on the merits, the parties entered into a settlement

in the form of a Consent Award. The Consent Award was submitted to the Arbitrator for
approval, and the Arbitrator approved the Consent Award and delivered it to the parties on April
30, 2014. A copy of the Consent Award is attached hereto as Exhibit 1.

11.

On or about April 8, 2015, the Arbitrator delivered a Supplemental Final Award,

dealing with arbitration costs, a copy of which is attached hereto as Exhibit 2.

12.

On or about April 15, 2015, the Arbitrator delivered a Final Award, dealing with

attorneys fees and expenses, a copy of which is attached hereto as Exhibit 3.

13.

The three awards attached hereto as Exhibits 1, 2 and 3 are collectively referred to

hereinafter as the Award.

THE AWARD SHOULD BE CONFIRMED
Section 7510 of the CPLR provides that [t]he court shall confirm an award upon application of
a party made within one year after its delivery to him, unless the award is vacated or modified
upon a ground specified in section 7511.
14.

Less than one year has expired from the date of delivery of the Award.

15.

The Award has not been vacated or modified under CPLR 7511.

16.

Accordingly, the Award should be confirmed pursuant to CPLR 7510.

17.

Petitioners and their counsel do not intend to seek, and hereby expressly waive,

any award of costs, disbursements or attorneys fees or expenses in connection with this
application for the entry of judgment confirming the Award if this application is unopposed.
CONCLUSION
WHEREFORE, Petitioners request that the Court enter judgment confirming the Award
and grants Petitioner such other and further relief as the Court deems just, proper and/or
equitable.
Dated: New York, New York
April 30, 2015
/s/ Thomas I. Sheridan, III
Thomas I. Sheridan
SIMONS HANLY CONROY LLC
112 Madison Avenue

New York, NY 10016-7416

(212) 784-6400
tsheridan@simmonsfirm.com
Attorneys for Petitioner