Spotlight Ticket Management, Inc. v. Concierge Live, LLC
2:24-cv-00859
C.D. Cal.
Aug 30, 2024
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SPOTLIGHT TICKET MANAGEMENT, INC. d/b/а TICKETMANAGER v. CONCIERGE LIVE LLC

Case No. 2:24-cv-00859-WLH-SSC

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

August 30, 2024

Document 51; #:611

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT‘S MOTION TO DISMISS [40]

Before the Court is Defendant Concierge Live, LLC‘s (“Defendant“) Motion to Dismiss the First Amended Complaint (the “Motion“). (Mot., Docket No. 40). Plaintiff Spotlight Ticket Management, Inc., d/b/a TicketManager (“Plaintiff“) filed an opposition to Defendant‘s Motion (the “Opposition“). (Opp‘n, Docket No. 44). Defendant subsequently filed its reply in support of its Motion (the “Reply“). (Reply, Docket No. 47). The matter is fully briefed.

On June 7, 2024, the Court held a hearing and heard oral arguments from all parties. After considering the parties’ arguments and submitted evidence, and for the reasons discussed below, the Court GRANTS in part and DENIES in part Defendant‘s Motion.

I. BACKGROUND

A. Factual Background

Plaintiff is a technology company that provides ticket and event management enterprise solutions. (First Amended Compl. (“FAC“), Docket No. 36 ¶¶ 15-17). Plaintiff is a Delaware corporation with its principal place of business in Calabasas, California. (Id. ¶ 1). In October 2016, Plaintiff entered into an exclusive agreement with Ticketmaster, LLC (“Ticketmaster“), a ticket sales and distribution company, in which Plaintiff “was granted the exclusive right to directly integrate its technology with Ticketmaster‘s software and systems platform.” (Id. ¶ 22). This agreement granted Plaintiff the exclusive right to have Ticketmaster “integration“—namely, “the ability to access Ticketmaster‘s application programming interfaces (“API“) to automatically and directly move Ticketmaster tickets without needing to go through the Ticketmaster website....” (Id. ¶ 25). In exchange for this exclusive agreement, Plaintiff pays Ticketmaster an annual fee and a percentage of its revenue. (Id. ¶ 26). To date, Plaintiff alleges that it has paid millions of dollars for this exclusive right, which gives it “a significant competitive edge in relation to its competitors.” (Id. ¶¶ 26, 29).

Defendant is also a technology company that competes with Plaintiff to provide similar ticket and event management services. (Id. ¶¶ 115). Defendant is a Georgia corporation with its principal place of business in Atlanta, Georgia. (Id. ¶ 3). Plaintiff alleges that, since at least 2019, Defendant has been falsely advertising and misrepresenting through its “public website, marketing materials, and direct communications with potential clients” in pitch meetings that Defendant has the same functionality and integration capability with Ticketmaster as Plaintiff. (Id. ¶ 48). Plaintiff further alleges that Defendant falsely characterizes Plaintiff‘s relationship with Ticketmaster as merely a marketing agreement, and not an exclusive agreement. (Id.).

As to Defendant‘s allegedly false advertisements contained on its website, Plaintiff alleges that they exist on publicly available portions of Defendant‘s website that instruct users about Defendant‘s integration process with Ticketmaster. (Id. ¶¶ 49-63, Exhs. A-J). Additionally, Defendant has made the above-mentioned misrepresentations in connection with pitсh meetings and/or requests for proposal (“RFPs“) in which Plaintiff and Defendant competed for business. (Id. ¶¶ 88-107). One meeting in particular involved a pitch to an online food ordering and delivery company in November 2022. (Id. ¶ 97). Plaintiff alleges that it lost the business to Defendant because Defendant “falsely represented... that it could perform all the same functionality as [Plaintiff]—including integrations with Ticketmaster—but for a lower cost.” (Id.).

B. Procedural History

On January 31, 2024, Plaintiff filed its initial Complaint alleging five causes of action against Defendant. (Compl., Docket No. 1). Plaintiff subsequently filed its FAC, the operative complaint, dated March 29, 2024. (Docket No. 47). The FAC alleges the following five causes of action: (1) False Advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B); (2) False Advertising under the California False Advertising Law (“FAL“), Cal. Bus. & Prof. Code § 17500 et. seq.; (3) Unfair Competition Law (“UCL“) under Cal. Bus. & Prof. Code § 17200 et. seq.; (4) Intentional Interference with Contractual Relations; and (5) Intentional Interference with Prospective Economic Advantage. (See generally id.).

On April 12, 2024, Defendant filed the instant Motion seeking to dismiss Plaintiff‘s FAC in its entirety under Rule 12(b)(2), (b)(3), and (b)(6). (Docket No. 40). On May 17, 2024, Plaintiff filed its Opposition. (Docket No. 44). Defendant subsequently filed its Reply on May 24, 2024. (Docket No. 47).

II. LEGAL STANDARD

A. Rule 12(b)(2)

Under Fed. R. Civ. P. 12(b)(2), “[w]hen a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that the court has jurisdiction.” . Where the motion is based on written material rather than on an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. .

“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” . “Because ‘California‘s long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U.S. Constitution,’ our inquiry centers on whether exercising jurisdiction comports with [constitutional] due process.” ; see Cal. Code Civ. Proc. § 410.10 (“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.“).

“Federal due process permits a court to exercise personal jurisdiction over a nonresident defendant if that defendant has at least ‘minimum contacts’ with the relevant forum such that the exercise of jurisdiction ‘does not offend traditional notions of fair play and substantial justice.‘” (quoting ) (quotation marks omitted). “Those contacts may be so continuous and systematic as to render a defendant essentially at home in the forum state and amenable ‍‌​​​‌​​​​​‌​‌‌‌‌​​​‌‌‌‌​‌‌​‌‌​​​‌​‌‌​​‌‌​‌‌​‌​‌​‍to any suit there. Alternatively, a court may exercise jurisdiction over ‘issues deriving from, or connected with, the very controversy that establishes jurisdiction.‘” (quoting ). “The Supreme Court has referred to these different bases for personal jurisdiction as ‘general’ and ‘specific’ jurisdiction.” (citing ).

B. Rule 12(b)(3)

Under Rule 12(b)(3), a party may move to dismiss an action based on improper venue. Rule 12(b)(3) allows dismissal only when venue is “wrong” or “improper,” a determination made exclusively in relation to whether “the court in which the case was brought satisfies the requirements of federal venue laws.” . When venue is challenged, courts must “determine whether the case falls within one of the three categories set out in [28 U.S.C.] § 1391(b). If it does, venue is proper; if it does not, venue is improper, and the case must be dismissed or transferred under [28 U.S.C.] § 1406(a).” .

Once challenged, the plaintiff has the burden of showing that venue is proper. See . “Unlike a Rule 12(b)(6) motion, a motion under Rule 12(b)(3) does not require that the pleadings be accepted as true. The court is permitted to consider facts outside of the pleading.” , aff‘d, (quotation marks omitted).

C. Rule 12(b)(6)

Under Fed. R. of Civ. P. 12(b)(6), a party may move to dismiss a cause of action for failure to state a claim upon which relief can be granted. A complaint may be dismissed for failure to state a claim for one of two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. ; see also . “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” (quoting ). The court must construe the complaint in the light most favorable to the plaintiff, accept all allegations of material fact as true, and draw all reasonable inferences from well-pleadеd factual allegations. . The court is not required to accept as true legal conclusions couched as factual allegations. See . “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Pursuant to Fed. R. Civ. P. 15(a)(2), courts granting dismissal should freely give leave to amend “when justice so requires.” Courts apply this policy with “extreme liberality.” ; see also (holding that dismissal with leave to amend should be granted even if no request to amend was made). Courts consider four factors in determining whether to grant leave to amend: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. (citing ).

III. DISCUSSION

A. Rule 12(b)(2) - Personal Jurisdiction

The Supreme Court has recognized two types of personal jurisdiction: “‘general’ (sometimes called ‘all-purpose‘) jurisdiction and ‘specific’ (sometimes called ‘case-linked‘) jurisdiction.” . Plaintiff does not dispute that the Court lacks general jurisdiction over Defendant. As such, the Court will only address whether specific jurisdiction exists.

The Ninth Circuit has established a three-part test for determining specific jurisdiction: (1) the defendant must purposefully avail himself of the privilege of conducting activities in the forum and invoking the benefits and protections of its laws; (2) the claim must arise out of or result from the defendant‘s forum-related activitiеs; and (3) exercise of jurisdiction must be reasonable. ; see also . The party asserting jurisdiction bears the burden of satisfying the first two prongs of this test. . If it does so, then the burden shifts to the party contesting jurisdiction to “present a compelling case” that the third prong of reasonableness has not been satisfied. Id.

i. Purposeful Availment or Purposeful Direction

As to the first prong, courts generally apply either a “purposeful availment” or “purposeful direction” test. . “Purposeful availment generally provides a more useful frame of analysis for claims sounding in contract, while purposeful direction is often the better approach for analyzing claims in tort.” . The “purрoseful availment” test, asks if the defendant “performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state.” . The “purposeful direction” test “inquire[s] whether a defendant ‘purposefully direct[s] his activities’ at the forum state, applying an ‘effects’ test that focuses on the forum in which the defendant‘s actions were felt, whether or not the actions themselves occurred within the forum.” (en banc). As this case involves only tort claims, the court will analyze this case under the “purposeful direction” test.1 See, e.g. (“[The plaintiff] alleges copyright and trademark infringement claims, which sound in tort, so we apply a ‘purposeful direction’ analysis and ask whether [the defendant] hаs purposefully directed activities at the United States.“) (citation omitted).

a. The Calder Effects Test

To determine in tort claims whether the first prong of the specific jurisdiction analysis is met, the Ninth Circuit applies a three-part “effects” test derived from (the “Calder Effects Test“). “Under this test, a defendant purposefully direct[s] his activities at the forum if he: (1) commit[s] an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” (internal quotation marks and citations omitted). “In applying this test, we must look to the defendant‘s contacts with the forum State itself, not the defendant‘s contacts with persons who reside there.” (internal quotation marks and citation omitted).

First, the Court finds that the “intentional aсt” prong is satisfied. “For purposes of jurisdiction, a defendant acts intentionally when he acts ‍‌​​​‌​​​​​‌​‌‌‌‌​​​‌‌‌‌​‌‌​‌‌​​​‌​‌‌​​‌‌​‌‌​‌​‌​‍with an intent to perform an actual, physical act in the real world, rather than an intent to accomplish a result or consequence of that act.” (citing ). Defendant committed an intentional act when it allegedly falsely advertised and represented on “its public website, marketing materials, and direct communications with potential clients” that, among other things, Defendant

purportedly has the same integration that Plaintiff has with Ticketmaster. See, e.g. (operating a website was an intentional act where the claim arose out of the website name‘s infringement of a trademark).

Next, the Court looks to whether Plaintiff sufficiently alleged that Defendant‘s conduct was expressly aimed at California under the second prong of the Calder Effects Test. Express aiming “is satisfied when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state.” ; see also . Plaintiff alleges three types of conduct that Defendant expressly aimed at California: (1) Defendant‘s website advertisements regarding its California-based partnerships and sponsors with companies such as Adobe and Google; (2) Defendant‘s solicitation of California-based businesses through various RFP and pitches, which involve meetings with California employees; and (3) Defendant‘s facilitation of “ticket management, transfers, and sales for events in California” for Defendant‘s California based clients. (Decl. of Kenneth Hanscom (“Hanscom Decl.“), Docket No. 44-2 ¶¶ 7-14; FAC ¶ 12). Defendant counters that its partnerships with Adobe and Google predate Defendant‘s development of any integration to external ticket platforms and are thus unrelated to Plaintiff‘s allegations in this case. (Decl. of Guinio Volpone (“Volpone Decl.“), Docket No. 40-2 ¶ 6). Further, Defendant clarified that all its meetings to solicit business through RFPs, including its meeting with a California based food delivery company, occurred virtually and with participants who appeared from outside of California. (Id.). Lastly, Defendant‘s business with its California clients has no relation to the false advertising and statements about Defendant‘s Ticketmaster integration at issue in this case. The Court will address each category of Defendant‘s conduct below.

With respect to Defendant‘s website, “expressly aimed” conduct requires “something more” than merely operating a passive website. See, e.g. (finding that there must be “something more to indicate that the defendant purposefully (albeit electronically) directed [its] activity in a substantial way to the forum state.“). Factors considered include the “interactivity of the defendant‘s wеbsite...; the geographic scope of the defendant‘s commercial ambitions...; and whether the defendant ‘individually targeted’ a plaintiff known to be a forum resident....” (internal citations and quotation marks omitted). For example, in , the Ninth Circuit grappled with the issue of whether tortious conduct on a nationally accessible website was expressly aimed at California. The plaintiff in Mavrix, Mavrix Photo, Inc. (“Mavrix“) was a Florida corporation that sold photographs of California-based celebrities. Id. at 1221, 1230. Mavrix brought a suit against defendant Brand Technologies, Inc. (“Brand“), an Ohio corporation, for copyright infringement when Brand allegedly posted Mavrix‘s photographs on Brаnd‘s celebrity gossip website without permission. Id. 1222-23. In finding that Brand had expressly aimed its business at California, the Mavrix court found particularly relevant the fact that Brand‘s website focused on the “California-centered” celebrity, made money from “third-party advertisements for jobs, hotels, and vacations in California,” and had business with various California-based companies such as web designers, and internet advertising companies. Id.

Here, Plaintiff alleges that personal jurisdiction exists over Defendant‘s claims because Defendant advertised its services for California businesses by using testimonials from its California partners and sponsors on its website. The Court finds this insufficient to establish express aiming. Unlike, in Mavrix, Defendant‘s website doеs not advertise to a California client base and lacks any specific forum focus. See, e.g. (finding that a defendant‘s website did not expressly aim towards California due to website‘s lack of forum specificity). Further, the testimonials from Defendant‘s California partners and sponsors only demonstrate the existence of a relationship and not necessarily the targeting of California businesses. Plaintiff only alleges that Defendant “touts its connection to California” but does not make the connection that Defendant uses these testimonials to target California companies. See contra, (finding defendant expressly aimed activities at forum by “offеring infringing content through its websites and social media channels in an attempt to ‘partner with business in California, in terms of sales and partnerships.‘“). As such, the Court finds that Defendant‘s website alone is insufficient to justify personal jurisdiction.

Likewise, the Court finds that Defendant‘s facilitation of ticket management services of California customers is insufficient to demonstrate express aiming at the forum. Other than alleging that Defendant has partnerships with California based clients, Plaintiff does not explain how Defendant‘s ticket management service expressly aims activity at California. Indeed, Plaintiff concedes that “[w]ithout discovery... [Plaintiff] is limited in its ability to offer direct evidence that [Defendant] has managed, transferred, or sold tickets to individuals located in California on behalf of its corporate customers.” (Docket No. 44 at 6).

The Court, however, does find that Defendant‘s solicitation of business through pitches and RFPs directed at California-based companies establishes express aiming. (Hanscom Decl. ¶ 6-14; FAC ¶ 12). Plaintiff alleges three instances in which Defendant has solicited business from California-based businesses through RFPs. One RFP involved a November 2022 pitch directed at obtaining the business of a California-based online food delivery company. (Id. ¶ 97). Plaintiff alleges that it suffered harm because Defendant falsely represented during that pitch that Defendant had the same functionаlity as Plaintiff but at a lower cost. (Id.). Defendant counters that the pitches and/or RFPs cannot constitute express aiming because the meetings occurred virtually and all of the participants were physically located in either New York or New Jersey. (Docket No. 47 at 4). The Court finds this argument unavailing. Even though the parties were not physically located in California, the Defendant‘s acts were aimed at a California-based company seeking their California business, and it is foreseeable that the effects of Defendant‘s conduct would likely be felt in California, as discussed in more detail below. (finding jurisdiction even if the actions causing the effects in California werе performed outside of the state)). Defendant‘s alleged actions show more than simply soliciting business on a nationwide basis, but rather targeted activity expressly aimed at obtaining business from California companies. Thus, the Court finds that the express aiming prong of this Calder Effects Test is satisfied to the extent that Plaintiff‘s claims are based on the misrepresentations through solicitation of business. As to Plaintiff‘s claims based on the advertising on the website, however, the Court finds that it does not have jurisdiction.

The third prong looks to whether the Defendant knew that the brunt of the harm is likely to be suffered in the forum state. . Notably, this element can be satisfied even if the “bulk of the harm occurs outside the forum.” Id. Here, it is reasonable to infer that Defendant should have known that soliciting business from California-based companies could cause harm to Plaintiff who is also based in California. See (reasoning the defendant‘s conduct involving trademark infringement would likely have the effect of injuring the plaintiff in California where it had its principal place of business). If Defendant had won the business, it would have managed the corporate ticket database for a California company presumably with California based employees and events. Accordingly, the Court finds that the third prong is satisfied, and the purposeful direction requirement is satisfied.

ii. Claims Arise Out of Defendant‘s ‍‌​​​‌​​​​​‌​‌‌‌‌​​​‌‌‌‌​‌‌​‌‌​​​‌​‌‌​​‌‌​‌‌​‌​‌​‍Forum-Related Activitiеs

The second prong of the specific jurisdiction test requires that the claims “arise out of” the defendant‘s forum-related activities. (quoting ). In other words, “there must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State‘s regulation.‘” . The “arise out of” and “relate to” elements are separate requirements, either of which is independently sufficient to find personal jurisdiction exists. (citing ). “[F]or a claim to arise out of a defendant‘s forum contacts requires causation, while a claim can relate to those contacts, evеn absent causation, where, for example, ‘a company serves a market for a product in the forum State and the product malfunctions there.‘” (quoting ). Because Defendant‘s solicitation of business through pitches and RFP was directed at California-based companies and form the basis of the alleged harm to Plaintiff, the Court finds that this prong is satisfied.

iii. Reasonableness

Plaintiff has satisfied its burden as to the first two prongs, and as such the burden shifts to Defendant to “present a compelling case” that the exercise of jurisdiction would be unreasonable and therefore violate due process. . Courts consider the following seven factors: “(1) the extent of the defendant‘s purposeful interjection into the forum state‘s affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendant‘s state; (4) the forum state‘s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff‘s interest in convenient and effective relief; and (7) the existence of an alternative forum.” .

Here, Defendant fails to satisfy its burden to “present a compelling case.” . Defendant‘s Motion only contains two sentences addressing their burden. (Docket No. 40-1 at 19). The first sentence states the above-mentioned seven factors, and the second sentence states in a conclusory manner that Plaintiff‘s “lack of any meaningful connection to California” warrants hearing this action in another forum. (Id.). Because Defendant failed to satisfy its burden as to this prong, the Court DENIES Defendant‘s Motion seeking dismissal on Rule 12(b)(2) grounds.

B. Rule 12(b)(3) - Venue

Venue over Lanham Act and UCL claims are governed by the general venue statute 28 U.S.C. § 1391. ; see also . The general venue statute provides that venue is proper in “any judicial district in which any defendant is subject to the court‘s personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b)(3). Here, Defendant contends, in a conclusory manner, that venue is improper without offering any reasons. Nevertheless, the Court declines to address venue because it has already concluded that it may properly exercise personal jurisdiction over Defendant‘s claims. Accordingly, the Court DENIES Defendant‘s Motion as to improper venue as moot.

C. Rule 12(b)(6) – Failure to State a Claim

i. FAL and UCL Claims (Causes of Action II and III)

Plaintiff alleges a claim of false advertising under the FAL and an unfair competition claim under the UCL. “[S]tate common law claims of unfair competition are ‘substantially congruent’ to claims made under the Lanham Act....” . Similarly, “[c]laims under the FAL are substantially congruent to those under the Lanham Act.” . As such, the Court will apply standard for the Lanham Act, FAL, and UCL interchangeably.

a. Fraud Pleading Standard

As an initial matter, this Court joins the many district courts that have adopted the heightened pleading standard under Rule 9(b) to Lanham Act, FAL, and UCL claims. Under Rule 9(b), a Plаintiff must “state with particularity the circumstances constituting fraud or mistake.” See also . “The complaint must specify such facts as the times, dates, places, benefits received, and other details of the alleged fraudulent activity.” . In addition, the “plaintiff must set forth what is false or misleading about a statement, and why it is false.” (quoting ).

The Court finds that Plaintiff‘s false advertising claim meets the heightened pleading standard under Rule 9(b). Plaintiff‘s FAC contains several allegations of pitches/RFPs in which Plaintiff and Defendant competed for business. (Docket No. 36 ¶¶ 88-89, 90-107). Plaintiff alleges the “what” is Defendant soliciting business from competitors, the “when” includes the dates of the various pitch meetings and RFPs, and the “how” was through the use of false advertisements on its website, marketing materials, and misrepresentations. (Id.). While Plaintiff fails to allege the “who” including the individuals present at the meetings (other than the Defendant and the entity issuing the RFP), the “where” including the location or place of the pitches/RFPs, and the specific content of the allegedly false representations including a statement about why each statement is false, this is because Plaintiff was not in the room during the pitches. Further, Plaintiff does not need to plead “the exact content” of Defendant‘s RFP responses in order to meet Rule 9(b)‘s pleading standard. (citing ) (superseded on other grounds). When facts supporting a fraud allegation are solely within the oрposing party‘s knowledge, “the particularity requirement of Rule 9(b) may be met if the allegations are accompanied by ‘a statement of facts upon which the belief is founded.‘” Id.; see also (finding that while Rule 9(b)‘s pleading requirements “may be relaxed as to matters within the opposing party‘s knowledge“). Plaintiff has sufficiently alleged the statements for particular pitches/RFPs including discussing whether the statements were contained in marketing materials, the RFP, or were provided orally. Accordingly, the Court DENIES Defendant‘s Motion under Rule 12(b)(6) as to Plaintiff‘s failure to meet the heightened pleading standard.

b. False Advertising

A false advertising claim requires that the alleged false statements be part of a “commercial advertisement аbout [defendant‘s] own or another‘s product.” (citation omitted). Commercial advertising, in turn, is “(1) commercial speech, (2) by the defendant who is in commercial competition with the plaintiff, (3) ‍‌​​​‌​​​​​‌​‌‌‌‌​​​‌‌‌‌​‌‌​‌‌​​​‌​‌‌​​‌‌​‌‌​‌​‌​‍for the purpose of influencing consumers to buy defendant‘s goods or services, and (4) that is sufficiently disseminated to the relevant purchasing public.” (citing ). For the purposes of the last prong, for dissemination to be “sufficient,” it must “be part of an organized campaign to penetrate the relevant market, which typically involves widespread dissemination within the relevant industry.” Id. at 1121 (citation and quotations omitted).

The FAC alleges that the commercial advertisement is comprised of sections of Defendant‘s public website2 containing user support articles and presentation materials.3 Specifically, the portions of Defendant‘s website referred to in the FAC and their embedded presentations are all contained within Defendant‘s support section, with headers and titles such as “How do I add Ticketmaster inventory into Concierge Live?” or “How do I add Ticketmaster inventory into Concierge Live?” (FAC ¶¶ 50-63, Exhs. A-J“). Although Plaintiff characterizes these materials as “marketing materials,” the Court‘s analysis of the webpages and presentations, which are affixed as exhibits to the FAC, suggests otherwise. The webpages are located within a section of Defendant‘s website where the web address contains the term “support.” (See, e.g., id. at Exh. A at 1) (“https://support.conciergelive.com/hc/en-us/articles/360034613572-How-do-I-add-Ticketmaster-inventory-into-Concierge-Live-“). Further, the content of the content on the website is written in a question-and-answer format suggesting that this material is a guide for users of Defendant‘s platform. (Id.). Likewise, the presentation slides contain answers to the relevant questions in bullet point format with screen shots of Defendant‘s platform and step-by-step instructions. (Id.). As such, the Court finds that these materials are more akin to guides or instruction manuals and not commercial advertisement. See, e.g., (holding that plaintiff failed to “allege any facts to overcome the commonsense conclusiоn” that the alleged misrepresentations contained within the “terms of service, community guidelines, and

contracts are not advertisements or a promotional campaign“) (citing (statements in a “contract” are not “commercial advertising or promotion“); (“instruction manuals are not advertisements or promotions“). Accordingly, the Court GRANTS Defendant‘s Motion as to Plaintiff‘s second and third causes of action.

ii. Tortious Interference with Contractual Relations (Cause of Action IV)

The elements of tortious interference with contractual relations are “(1) a valid contract between plaintiff and a third party; (2) the defendant‘s knowledge of this contract; (3) thе defendant‘s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” . Defendant challenges the second, third, and fourth elements of Plaintiff‘s claim.

As to the second element, Defendant argues that the FAC “fails to identify any right that has allegedly been infringed” and Defendant‘s “knowledge of the specific right at issue.” (Docket No. 41 at 30). The Court agrees. While the FAC clearly asserts the right infringed—i.e., the benefit of the exclusive integration relationship with Ticketmaster “for which Spotlight has paid annual fees totaling millions of dollars“—Plaintiff does not sufficiently allege Defendant‘s knowledge of this contract or the exclusive agreement. (FAC ¶ 109). Plaintiff alleges that Defendant knew of the contract and exclusive agreement because Ticketmaster issued a public letter dated March 31, 2021, in which Ticketmaster “affirmed that it entered into an ‘exclusive partnership‘” with Plaintiff and that Plaintiff is the “only Ticketmaster partner who has integration with Ticketmaster in the event and corporate ticket management market.” (Id. ¶ 81) (emphasis in original). Plaintiff, however, does not sufficiently allege that Defendant is aware of this public letter. Confusingly, Plaintiff tries to connect Defendant‘s knowledge of the letter with Defendant‘s use of Ticketmaster‘s aрplication programing interface (“API“), which requires acceptance of Ticketmaster‘s Terms of Use (the “TOU“). (Id. ¶ 79). The TOU includes a provision that prevents users from deriving revenue from use of the API. (Id. ¶ 77). Plaintiff alleges that due to improper use of the API, Ticketmaster has had to warn consumers regarding Defendant‘s false claims of integration. (Id. ¶ 80). Plaintiff then contradicts itself and alleges that “[u]pon information and belief [Defendant] may not be using the Ticketmaster API directly” and instead may be using a “third party intermediary.” (Id. ¶¶ 84-85). Given the lack of clear allegations demonstrating Defendant‘s knowledge of the exclusive agreement, the Court GRANTS Defendant‘s Motion as to Plaintiff‘s fourth cause of aсtion.

iii. Intentional Interference with Prospective Economic Advantage (Cause of Action V)

The elements of interference with prospective economic advantage are “(1) an economic relationship between the plaintiff and another, containing a probable future economic benefit or advantage to plaintiff, (2) defendant‘s knowledge of the existence of the relationship, (3) that defendant intentionally engaged in acts or conduct designed to interfere with or disrupt the relationship, (4) actual disruption, and (5) damage to the plaintiff as a result of defendant‘s acts.” (quoting ) (internal quotations omitted). As to the third element, a plaintiff must additionally allege “that the defendant‘s conduct was ‘wrongful by some legal measure other than the fact of interference itself.‘” (quoting ). “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” .

Defendant challenges Plaintiff‘s intentional interference with prospective economic advantage relationship claim on the grounds that it does not allege an independent wrong outside of the interference itself and because the interference privileged. (Docket No. 40-1 at 29). Defendant contends that because this claim “rests on the same falsе advertising claims that are deficient, this claim cannot stand independently.” The Court agrees with Defendant. Plaintiff alleges that in addition to the alleged interference contained on their website, Defendant repeated the same “false representations directly to prospective customers, including in connection with pitches and RFP processes involving [Plaintiff].” (FAC ¶ 187). This conduct, however, is part of the same misrepresentations purported to be published on Defendant‘s website. No where does Plaintiff allege separate allegations of independently wrongful acts such as fraud. “[T]he facts pleaded by a plaintiff must show an intent to do something which takes the defendant‘s acts beyond those of a mere competitor securing business for himself.” (citation omitted). Because Plaintiff has failed to plead an essential element as to its interference with prospective economic advantage claim the Court GRANTS Defendant‘s Motion.

IV. CONCLUSION

Based on the foregoing discussion, Defendant‘s Motion is GRANTED in part and DENIED in part. Specifically, the Court dismisses Plaintiff‘s first, second, third, fourth, and fifth causes of action without prejudice and with leave to amend.

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Plaintiff shall file an amended Complaint consistent with this Order, within 21 days of the issuance of this Order.

IT IS SO ORDERED.

Dated: August 30, 2024

HON. WESLEY L. HSU

UNITED STATES DISTRICT JUDGE

Notes

1
Plaintiff incorrectly argues that the Calder Effects Test does not apply in this matter because it аpplies “only for matters involving actions taken outside of the forum that are directed at the forum.” (Docket No. 44). Plaintiff‘s description of the Calder Effects Test, however, describes exactly the conduct that occurred in this matter—i.e., Defendant‘s alleged tortious conduct—which was allegedly aimed at California. See (finding that the “exact form of our jurisdictional inquiry depends on the nature of the claim at issue” and applying ‍‌​​​‌​​​​​‌​‌‌‌‌​​​‌‌‌‌​‌‌​‌‌​​​‌​‌‌​​‌‌​‌‌​‌​‌​‍both purposeful availment and Calder Effects Test because plaintiff “asserts both a contract and a tort claim“).
2
Defendant disputes that the materials that Plaintiff cites are publicly available. (Docket No. 40 at 22-23). At this stage of the case, however, the Court must construe the complaint in the light most favorable to the plaintiff and accept all allegations of material fact as true. Regardless, whether or not this material is publicly available is not dispositive of anything as the Court finds that the material itself is not “commercial advertisement.”
3
The FAC also affixes a job posting for a web developer position at Defendant‘s company and alleges that job description contains the false statement that Defendant has integration services with Ticketmaster. (FAC ¶ 65, Exh. K). Importantly, Defendant does not identify the source of this job posting, nor does it discuss how a job posting may constitute “commercial advertising.“.
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