Ramlogan v. Viator, Inc.

United 	States 	District 	Court
District 	of Massachusetts
Corinna Ramlogan,
Plaintiff,
V.
Viator, 	Inc. ,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
Civil 	Action No .
25-10509-NMG
----------------------
MEMORANDUM 	& ORDER
GORTON, 	J .
Plaintiff 	Corinna 	Ramlogan 	(" plaintiff " 	or 	" Ramlogan " ) ,
suing 	individually 	and 	on 	behalf 	of 	other 	persons 	similarly
situated , 	alleges 	that 	Via to r , 	Inc . 	(" defendant " 	or 	" Viator " )
violated 	the 	Arts 	and 	Cultural 	Affairs 	Law 	(" ACAL " ) 	of 	New 	York
State . 	Defendant 	has 	filed 	a 	Motion 	to 	Dismiss 	(Docket 	No . 	22) ,
contending 	that 	plaintiff 	has 	failed 	to 	state 	a 	claim 	upon 	which
relief 	can 	be 	granted . 	For 	the 	reasons 	be low , 	that 	motion 	will
be 	denied .
I . Facts
Defendant 	is 	an 	online 	seller 	of 	tickets 	for 	a 	wide 	variety
of 	tourist 	attractions 	and 	other 	activities . 	On 	or 	about 	March
28 , 	2024 , 	plaintiff 	purchased 	four 	tickets 	from 	defendant ' s
website 	for 	a 	backstage 	tour 	of 	Madison 	Square 	Garden 	(" MSG " ) 	i n
1
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 1 of 10

New York 	City 	("the 	tour"). 	The 	tickets 	were 	purchased 	for 	$46
dollars 	each, 	the 	same 	price 	available 	at 	MSG's 	website. 	MSG
sold 	the 	same 	tickets 	at 	the 	box 	office, 	however, 	for 	$37. 	The
tour 	included 	backstage 	access 	to MSG 	rooms 	and 	facilities, 	with
a 	tour 	guide 	providing 	commentary and 	information 	about 	the
building's 	history 	and 	architecture.
Plaintiff 	alleges 	that 	defendant 	did 	not 	provide 	an
itemized 	list 	of 	the 	base 	ticket 	price 	and 	additional 	fees 	as
required under ACAL 	and 	seeks 	to 	represent 	a 	putative 	class 	of
ticket 	purchasers 	who 	have 	paid undisclosed 	fees 	to 	defendant.
Defendant 	moves 	to 	dismiss 	plaintiff's 	claims 	on 	the 	grounds
that 	1) 	ACAL 	§25.07(4) 	does 	not 	require 	an 	itemized breakdown of
the 	ticket 	price, 	2) 	plaintiff 	has 	not 	sufficiently alleged 	an
injury under ACAL 	§25.33 	and 	3) 	MSG does 	not 	qualify as 	a 	"place
of 	entertainment" 	covered by 	the 	statute.
II. 	Legal 	Standard
To 	survive 	a 	motion 	to 	dismiss 	under 	Fed. 	R. 	Civ. 	P.
12(b) (6), 	the 	subject 	pleading must 	contain 	sufficient 	factual
matter 	to 	state 	a 	claim 	for 	relief 	that 	is 	actionable 	as 	a
matter 	of 	law and 	"plausible 	on 	its 	face." 	Ashcroft 	v. 	Iqbal,
556 	U.S. 	662, 	678 	(2009) 	(quoting 	Bell 	Atl. 	Corp. 	v. 	Twombly,
550 	U.S. 	544, 	570 	(2007)). 	A claim 	is 	facially 	plausible 	if,
after 	accepting 	as 	true 	all 	non-conclusory 	factual 	allegations,
the 	court 	can 	draw 	the 	reasonable 	inference 	that 	the 	defendant
2
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 2 of 10

is 	liable 	for 	the 	misconduct 	al le ged . 	Ocasio-Hernandez 	v .
Fortuno - Burset , 	640 	F . 3d 	1 , 	12 	(1st 	Cir . 	2011) .
When 	rendering 	such 	a 	determination , 	a 	court 	may 	consider
certain 	categories 	of 	docume nts 	extrinsic 	to 	the 	complaint
" without 	converting 	a 	motion 	to 	dismiss 	into 	a 	motion 	for
summary 	judgment ." 	Freeman 	v . 	Town 	of 	Hudson , 	71 4 	F . 3d 	29 , 	36
(1st 	Ci r . 	2013) 	(citing 	Watterson 	v . 	Page , 	987 	F . 2d 	1 , 	3 	(1st
Cir . 	1993)) . 	For 	instance , 	a 	court 	may 	consider 	documents 	of
undisputed 	authenticity , 	official 	public 	r eco rds , 	documents
central 	to 	a 	plaintiff ' s 	cla im 	and 	docriments 	that 	were
sufficiently 	referred 	to 	in 	the 	complaint . 	Watterson , 	987 	F . 2d
at 	3 .
A court 	may 	not 	disrega rd 	properly 	pled 	factual 	allegations
in 	the 	complaint 	even 	if 	act ual 	proof 	of 	those 	facts 	is
improbable . 	Id . 	at 	12 . 	Rather , 	the 	couit ' s 	inqui ry 	must 	focus
on 	the 	reasonableness 	of 	the 	infer ence 	of 	liabilit y 	that
plaintiff 	is 	asking 	the 	court 	to 	draw . 	Id . 	at 	13 .
III . 	Analysis
A . Failure 	to 	State 	a 	Claim
Plaintiff 	alleges 	that 	the 	$9 	difference 	between 	the 	price
charged 	at 	the 	MSG 	ticket 	booth 	and 	the 	price 	charged 	by 	Viator
represents 	a 	surcharge 	that 	sh ould 	have 	been 	identified 	in 	the
ticket 	price .
3
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 3 of 10

Under 	ACAL 	§25 . 07(4) , 	covered 	entities 	must 	disclose
the 	total 	cost 	of 	the 	tic ket , 	inclusive 	of 	all 	ancillary 	fees
that 	must 	be 	paid 	in 	order 	to 	purchase 	the 	ticket , 	and
disclose 	in 	a 	clear 	and 	conspicuous 	manner 	the 	portion 	of 	the
ticket 	price 	stated 	in 	dol l ars 	that 	represents 	a 	service
charge , 	or 	any 	other 	fee 	or 	surcharge 	to 	the 	purchaser .
Such 	disclosure 	must 	be 	displayed 	in 	the 	t icket 	listing 	prior 	to
being 	selected 	for 	purchase , 	and 	the 	price 	must 	not 	increase
during 	the 	purchase 	process . 	Id .
Unfcrtunately , 	in 	its 	memorandum 	in 	support 	of 	its 	Motion
to 	Dismiss , 	d~fendant 	freque nt ly 	mischaracterizes 	both 	the
statute 	and 	pl~int iff ' s 	complaint . 	Contrary 	to 	Viator ' s
exposition 	of 	ACAL 	§25 . 07(4) , 	the 	statute 	prohibits 	conduct 	even
where 	the 	price 	of 	the 	ticket 	does 	not 	increase 	during 	the
purchase 	process . 	If' the 	covered 	entity 	does 	not 	disclose , 	in 	a
clear 	and 	conspicuous 	manner , 	any 	service 	charge , 	fee 	or
surcharge , 	it 	is 	a 	violation 	0£ 	the 	stat~te , 	even 	if 	the 	listed
price 	remains 	unchang~d .
Such 	a 	violation 	i s 	what 	Ramlogan 	alleges 	i n 	her 	complaint :
a 	ticket 	at 	the 	box 	off:ce 	costs 	$37 	while 	it 	costs 	$46 	on
defendant ' s 	websi te 	and 	thus 	" there 	is 	a 	$9 . 00 	surcharge 	to 	buy
t 	i s 	ticket 	from " 	Viator 	that 	it 	fails 	to 	disclose . 	Moreover ,
defendant 	disingenuously 	claims 	that 	plaintiff
does 	hot 	allege 	that 	Viator 	charges 	ancillary 	fees 	(i . e .,
service 	charge 	or 	surcharge) 	to 	complete 	a 	purc h ase .
4
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 4 of 10

Defendant 	contends 	that 	it 	did 	not 	impose 	any 	surcharge 	because
MSG 	also 	l ists 	the 	tick et 	f or 	$46 	online , 	and 	t he 	lower 	$3 7 	box
office 	price 	(the 	benchmark 	for 	any 	alleged 	surcharge) 	is , 	in
it s 	view , 	irrelevant .
The 	Co urt 	i s 	unpersuaded 	by 	de fe ndant ' s 	arguments . 	At 	the
Motion 	to 	Dismiss 	stage , 	plaintiff 	is 	entitled 	to 	the 	reasonable
inference 	that 	the 	price 	differential 	is 	a 	surcharge 	or
ancillary 	fe e . 	Ruiz 	v . 	Bally 	Total 	Fitnes s 	Holding 	Corp ., 	496
F . 3d 	1 , 	5 	(1st 	Cir . 	2007) . 	That 	the 	ticket 	also 	costs 	$46 	on
MSG ' s 	website 	d oe s 	not 	negate 	that 	inference 	because 	both
websites 	could 	independently 	include 	a 	$9 	surcharge . 1
Plaintiff ' s 	claim 	i s 	not 	fo reclosed 	by 	the 	possibility 	that 	MSG
may 	also 	hav e 	vio lated 	t he 	law .
In 	sum , 	plainti ff ' s 	co mplaint 	g i ves 	rise 	to 	the 	reasonable
inference 	that 	t he 	$9 	di ffe rence 	between 	the 	ticket 	pric e 	at 	th e
box 	office 	and 	Viator ' s 	website 	is 	a 	surcharge . 	As 	such , 	by 	the
statute ' s 	plain 	language , 	defendant 	was 	required 	to 	disclose 	the
charge .
B. Failure 	to 	Allege 	an 	Injury
While 	ACAL 	a ss ig ns 	pr i mary 	enforcement 	authority 	to 	the 	New
York 	Attorney 	General , 	it 	also 	confers 	a 	privat e 	right 	of 	action
1 The parties also d i spute whether Viator would be required to disclose a 	fee
that originated with MSG but was then passed along by Viator . 	The Court need
not consider 	that argument because it was 	raised for the 	first 	time in
p lai n tiff ' s 	opposition brief . 	Wang Yan v . 	ReWalk Robotics Ltd ., 	330 F . 	Supp .
3d 555 , 	570 	(D . 	Mass . 	2018) .
5
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 5 of 10

to 	individuals 	who 	hav e 	been 	" injured 	by 	reason 	of 	a 	violation "
of 	the 	statut e . 	ACAL 	§25 . 33. 	Defendant 	contends 	that 	plaintiff
has 	not 	alleged 	that 	she 	was 	injured by 	the 	purported 	violation
and 	t hus 	cannot 	bring 	a 	private 	action . 	Specifically , 	Viator
asserts 	that 	an ACAL 	claim 	ca nn o t 	pass 	muster 	if 	it 	s ets 	forth
the 	statu to ry 	viol~tion 	" as 	both 	act 	and 	injury ," 	relying 	on
case 	law 	interpreting 	a 	different 	New 	Yo r k 	consumer 	p rotection
s tatute 	that 	co ntains 	identical 	language 	in 	conferring 	a 	private
right 	of 	action . 	S ee 	Small 	v . 	Lorillard 	Tobacco 	Co ., 	Inc ., 	720
N. E . 2d 	892 	(N . Y. 	1999) 	(analyzing 	injury 	requir e ment 	to 	bring 	a
deceptive 	trad e 	prac tice s 	claim 	under 	N. Y. 	GEN . 	Bus . 	§349 	(" GBL
349 " )) . 2 	Defe ndan t 	also 	contends 	that 	allowing 	the 	statutory
violation 	t o 	s erve 	as 	the 	injury 	would 	render 	the 	phrase
"injur e d 	by 	reason 	of 	a 	violation " 	superfl u ous .
Although 	cases 	analyzing 	identical 	statuto ry 	language 	can
b e 	inst ructiv e , 	the 	Court 	decline s 	to 	adopt 	defenda n t ' s 	proposed
interpretation 	of 	ACAL . 	Fir st , 	the 	conduct 	prohibited 	b y 	GBL
349 	a nd 	addressed 	in 	t h e 	Small 	dec ision , 	i . e . 	deceptive 	trade
practices , 	is 	distinguishable 	from 	that 	prohibited 	by ACAL .
Deception 	is 	an 	amorphous 	violation 	that 	do e s 	not 	le nd 	it self 	to
clear 	defini tion 	and 	does 	not 	necessa r ily 	cause 	an 	identifiable
2 GBL 349 makes unlawful 	'' deceptive acts or practices in the conduct of any
business , 	trade or commerce or in the 	furnishing 	of any service " 	in New York
and confers a private right of action to " any person who has been injured by
reason of any deceptive act or practice made unlawful by this 	section ."
6
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 6 of 10

i njury . 	A consumer 	could 	b8 	deceiqed 	by 	a 	false 	advertisement
bu t 	s t ill 	choo se 	not 	to 	purchase 	the 	product . 	In 	such 	a 	case ,
the 	consumer 	cannot 	be 	said 	to 	have 	been 	injured .
Given 	the 	potentially massive 	scope 	of 	behavior 	prohibited
by 	GBL 	349 , 	courts 	interpreting 	that 	statute 	in 	the 	years
following 	its 	passage 	expre ssed 	concern 	about 	a 	" tidal 	wave 	of
litigation" 	unintended 	by 	the 	legislatt1re . 	Oswego 	Laborers ' 	Loe .
214 	Pension 	Fund 	v . 	Marine 	Midland 	Bank , 	N. A ., 	647 	N. E . 2d 	741 ,
745 	(N . Y. 	1995) . 	In 	such 	a 	context , 	a 	rule 	requiring 	an 	injury
indep~nd~nt 	of 	the 	decepti6n 	it~elf 	makes 	sense . 	ACAL , 	on 	the
other 	hand, 	targets 	much 	narrower 	and 	more 	clearly 	defined
conduct . 	Given 	the 	significant 	discinction 	between 	th e 	scope 	of
t he 	statutes , 	the 	Court 	discounts 	the 	ccmpaiative 	caselaw . 	See
Uni te d 	States 	v . 	Meade, 	175 	F.3d 	215 , 	219 	(1 st 	Cir . 	1999)
(" (P) .i::ecedent · teaches 	that 	the 	case 	fo~ 	construing 	one 	statute
in 	a 	manner 	sifuilar 	to 	another 	is 	weakest 	when 	the 	t wo 	have
significant 	differences ." ) .
Even 	if 	the 	Court 	were 	to 	adop t 	the 	r 	l e 	of 	the 	Small
decision 	that 	the 	st atu t ory 	violation 	c~nnot 	serve 	as 	both 	act
~nd 	injury , 	subsequent 	case 	law 	indicates 	that 	Rarnlogan ' s
c o~pl aint 	does , 	in 	fact , 	pl~ad 	a 	cogniz~ble 	injury . 	In 	the
years ' since 	Sma ll , 	New· York 	courts 	have 	he l d 	that 	plaintiffs
p lea d 	an 	injury 	under 	GBL 	349 	if 	they 	allege 	they 	paid 	a 	higher
price 	than 	they 	otherwise 	would 	have 	due 	to 	the 	deceptive
7
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 7 of 10

.	. .
practice . 	Koenigsberg 	v. 	Bd . 	of 	Trs . 	of 	Columbia 	Univ ., 	2024 	WL
1256270 , 	at 	*11 	(Mar . 	22 , 	2024 , 	S . D. N. Y. ) 	(explaining 	the 	" price
premium n 	theory 	of 	injury) . 	Here , 	Ramlogan 	alleges 	that 	the
price 	she 	paid 	for 	the 	ticket 	was 	$9 	higher 	than 	its 	actual
value , 	as 	represented 	by 	the 	price 	charged 	at 	the 	ticket 	booth .
The 	price 	differential 	was 	a 	result 	of 	defendant ' s 	failure 	to
disclose 	that 	the 	ticket 	itself 	costs 	$37 	and 	that 	the
additional 	$9 	was 	for 	fees . 	Thus , 	even 	under 	defendant ' s
proposed 	interpretation 	of 	ACAL , 	plaintiff 	states 	a 	claim 	for 	a
private 	cause 	of 	action .
Defendant ' s 	reliance 	on 	the 	canon 	against 	superfluity 	is
similarly 	unpersuasive 	because 	the 	phrase 	" injured 	by 	reason 	of
a 	violation n 	does 	not 	lose 	independent 	meaning 	under 	plaintiff ' s
interpretation . 	Such 	an 	interpretation 	would , 	for 	example ,
foreclo se 	a 	claim brought 	by 	a 	consumer 	who , 	while 	browsing
tickets , 	noticed 	a 	ticket 	with 	an 	undisclosed 	fee 	but 	chose 	not
to 	purchase 	it . 	Without 	the 	purchase , 	there 	is 	no 	injury 	and
thus 	no 	standing 	to 	bring 	a 	claim . 	Here , 	plaintiff 	did 	purchase
a 	ticket 	with 	an 	alleged 	undisclosed 	fee . 	That 	is 	sufficient 	to
sta t e 	a 	cause 	of 	action .
Such 	an 	interpretation 	is 	further 	supported 	by 	Pires 	v . 	The
Bowery 	Presents , 	LL C, 	988 	N. Y. S . 	2d 	467 	(N . Y. 	Sup . 	Ct . 	2014) , 	in
which 	the 	plaintiff 	alleged 	a 	violation 	of 	a 	different 	ACAL
8
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 8 of 10

section 	and 	sued 	u n der 	the 	sa me 	private - right - of - action 	section
at 	issue 	in 	this 	case . 	In 	that 	case , 	the 	court 	held 	that
because 	[plaintiff] 	alleges 	a 	violation 	of 	a 	statutory 	right ,
and 	that 	right 	is 	accorded 	a 	remedy , 	[plaintiff] 	sufficiently
states 	a 	direct 	injury 	under 	Arts 	and 	Cultural 	Affairs 	Law
§25 . 30(1) (c)
Defendant 	attempts 	to 	discount 	that 	holding 	by 	noting 	that
the 	injury 	in 	Pires 	is 	" notably 	different " 	than 	that 	in 	the
instant 	case . 	That 	argument 	is 	unavailing , 	however , 	because 	the
Pires 	decision 	does 	not 	turn 	on 	the 	gravity 	of 	plaintiff ' s
injury 	but 	rather 	on 	the 	simple 	fact 	that 	a 	statutory 	violation ,
for 	which 	the 	law 	provides 	a 	remedy , 	is 	an 	injury 	sufficient 	to
state 	a 	claim 	under 	ACAL .
C. Place 	of 	Entertainment
Finally , 	defendant 	contends 	that 	MSG 	is 	not 	a 	" place 	of
entertainment ," 	as 	required 	by 	statute , 	because 	the 	tour 	was 	not
a 	form 	of 	" entertainment " 	defined 	thereunder , 	citing 	§25 . 03(1) ,
(6). 	That 	narrow 	reading 	of 	the 	statutory 	language 	is
pretentious . 	MSG 	is 	a 	facility 	which 	hosts 	sporting 	events ,
concerts 	and 	other 	forms 	of 	entertainment . 	ACAL 	§25 . 03(6) ;
People 	v . 	Osborne , 	688 	N. Y. S . 2d 	874 , 	876 	(Crim . 	Ct . 	1999)
(noting MSG 	is 	a 	" place 	of 	entertainment " ) . 	Defendant 	provides
no 	case 	law 	to 	support 	its 	contention 	that 	a 	place 	of
entertainment 	loses 	that 	status 	depending 	upon 	a 	given 	activity .
See 	United 	States 	v . 	Roberson , 	459 	F . 3d 	39 , 	55 	(1st 	Cir . 	2006)
9
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 9 of 10

(" Absent 	a 	conflict 	between 	the 	two 	provisions , 	resort 	to 	the
canons 	(which 	are , 	after 	all , 	only 	tools 	of 	construction) 	is
unnecessary ." ) .
Nevertheless , 	plaintiff 	has 	pled 	facts 	sufficient 	to 	find
that 	the 	tour 	for 	which 	she 	purchased 	tickets 	was , 	in 	and 	of
itself , 	entertainment . 	The 	tour 	involved 	exclusive 	access 	to
private 	areas 	of 	the 	facility , 	with 	a 	guide 	providing 	commentary
and 	historical 	lessons 	about 	the 	building . 	ACAL 	§25 . 03(1)
(defining 	" [e]ntertainment " 	as 	" all 	forms 	of 	entertainment
including , 	but 	not 	limited 	to 	. . 	all 	other 	forms 	of 	di version ,
recreation 	or 	show " ) ; 	Teta 	v . 	Go 	New 	York 	Tours , 	Inc ., 	738 	F .
Supp . 	3d 	502 , 	505 	(S . D. N. Y. 	2024) 	(applying 	ACAL 	to 	tickets
purchased 	for 	sightseeing 	tour) .
ORDER
For 	the 	foregoing 	reasons , 	defendant ' s 	Motion 	to 	Dismiss 	(22)
is 	DENIED.
So 	ordered.
Nathaniel 	M. 	Gor!Yon
Senior 	United 	States 	District 	Judge
Dated : 	March 6 , 	2026
10
Case 1:25-cv-10509-NMG Document 30 Filed 03/06/26 Page 10 of 10