1:25-cv-10509•Ramlogan v. Viator, Inc.
Testo completo
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 10New 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 10is 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 10i 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 10Continua la tua ricerca in ChatGPT o Claude
Collega Omnilex per cercare nel corpus legale dal tuo assistente IA.