Public Commissioner's Refusais: Moved on, Answered, Agreed and Outstanding Page l I ssue 1 - Historie Conduct - Estoppel, Waiver and Remedv pq On Refusai March 28 Answer Respondents' Memorandum of Fact and Law 4ft 29(a) a. 30 • why the 2009 investigation was commenced • remedy - as noted above, the Respondents will argue that the Commissioner's delay in bringing this Application and notifying the Respondents about any issue related to the display of pricing should mitigate or eliminate the award of any remedy against the Respondents. The
Commissioner's knowledge of the Respondents' conduct, and its delay in proceeding, are issues that the Respondents will advance and which they should be entitled to explore on discoverv. 16 69 What triggered the opening of the file leading to the current application? 16 70 Was [the current application ] triggered on the basis of any consumer corn plaints?
The file was opened following an internai Bureau review of Ticketmaster's drip pricing practices. The file was not triggered on the basis of any one specific complaint. The file was opened following an internai Bureau review of Ticketmaster's drip pricing practices. Various criteria, including complaints, inform the Bureau's decision to pursue cases.
Public Summary: Refusais Moved on by Respondents, and Grormds for Moving Respondents' Memorandum of Fact and Law, 29{b) 8t 30 • prior and contemporaneous consumer complaints of what the Commissioner now describes as "drip pricing" • remedy - as noted above, the Respondents will argue that the Commissioner's delay in bringing this Application and notifying the Respondents about any issue related to the display of pricing should mitigate or eliminate the award of any remedy against the Respondents . The Commissioner's knowledge of the Respondents' conduct, and its delay in proceeding, are issues that the Respondents will advance and which the should be entitled to ex lore on discove 16 70 Was [the current application] triggered on the basis of any consumer corn plaints? 109 410 whether there was any investigation into complaint] or what steps were taken in response to corn plaint?
109- 411 An acknowledgment letter was sent to the 110 complainant on March 12, 2008. The acknowledgment letter advised the complainant that the matter he had raised could not be addressed by the Bureau at that t ime but would be recorded in the Bureau's database and could be used to develop or support future enforcement activit ies under the laws enforced by the Bureau .
359 1199 Why didn't the Commissioner do anything about [the [Refusai maintained] corn laints from 2008 ?
Page2 el Waiver and Remed The file was not triggered on the basis of any one specific compla int. The file was opened following an internai Bureau review of Ticketmaster's drip pricing practices. Various criteria, including complaints, inform the Bureau's decision to ursue cases. An acknowledgment letter was sent to the complainant on March 12, 2008, following which, the complaint was closed. The acknowledgment letter advised the complainant that due to the large number of complaints received by the Bureau each year, t he Bureau was unable to resolve them all.
Public Summary: Refusais Moved on by Respondents, and Grormds f or Moving Page3 Issue 1 - Historie Conduct - Estoooel. Waiver and Remedv pq On Refusai March 28 Answer Respondents' Memorandum of Fact and Law 4ft 29(c ) 8t 30 • the nature of the "misrepresentations" being investigated in 2009, and the analysis of what was thought by the Commissioner to be misleading • remedy - as noted above, the Respondents will argue that the Commissioner's delay in bringing this Application and notifying the Respondents about any issue related to the display of pricing should mitigate or eliminate the award of any remedy against the Respondents. The Commissioner's knowledge of the Respondents ' conduct, and its delay in proceeding, are issues that the Respondents will advance and which they should be entitled to explore on discoverv 116 434 What was the misrep issue [that Ms. Rosen] was referring to [in her Commissioner will answer (April 1) e-mail correspondence with Mr. Brventon in Exhibit 1141? 123 461 Was a more fulsome analysis done by officers on [the issue of [Refusai maintained] misreps on the current websites referred to in Mr. Bryenton's e-mail to Ms. Rosen in Exhibit 114]? 123 462 1 want any analysis that was actually done by officers [on the [Refusai maintained] issue of misreps on the current websites referred to in Mr. Brventon's e-mail to Ms. Rosen in Exhibit 1141.
123- 463 What aspects of [the websites referred to in Exhibit 114] was Mr. 124 Bryenton considering when he indicated that there does not appear to be an issue of m isreos on those sites? 165- 608 I want an undertaking to find out whether what was intended, 166 beginning at the third paragraph on page 2 [of Exhibit 117], was to provide some guidance to Ticketmaster as to how to avoid missteps with respect to false or misleading representations and deceptive marketing practices, with respect to the matters that are then articulated below. 293 976 Are [ Exhibits 120 and 121] among [the screen captures] referred to in the March 6th, 2009 e-mail exchange with Ms. Rosen?
The Commissioner is able to advise that these screen captures [Exhibits 120 and 121] relate to the Bureau's 2009-2010 examination of Ticketmaster's conduct under the misleading advertising and deceptive market ing practices provisions of the Competition Act.
Commissioner will answer (April 1) The author of the letter, Brent Homan, is no longer employed by the Bureau . However, the letter speaks for itself, more specifically, it makes it clear that the any actions taken based on this information should not be regarded as approved or endorsed by the Bureau. The Commissioner is unable to confirm whether these screen captures [ Exhibits 120 and 121] are those referred to in the emai l.
Public Summary: Refusais Moved on by Respondents, and Grormds for Moving Page4 Issue 1 - Historie Conduct - Esto el Waiver and Remed March 28 Answer Respondents' Memorandum of Fact and Law, 29(d) 8t 30 • which aspects of the Ticketing Platfonns were examined • remedy - as noted above, the Respondents will argue that the Commissioner's delay in bringing this Application and notifying the Respondents about any issue related to the display of pricing should mitigate or eliminate the award of any remedy against the Respondents. The Commissioner' s knowledge of the Respondents ' conduct, and its delay in proceeding, are issues that the Respondents will advance and which the should be entitled to ex lore on discove 123 462 1 want any analysis that was actually done by officers [on the [Refusai maintained] issue of misreps on the current websites referred to in Mr. B enton's e-mail to Ms. Rosen in Exhibit 114 • 123- 463 What aspects of [the websites referred to in Exhibit 114] was Mr. Commissioner will answer (Apri l 1) 124 Bryenton considering when he indicated that there does not appear to be an issue of m isre s on those sites? 131- 494 Do you know whether the Bureau looked at an The investigation was commenced following concerns 132 and ticketsnow websites in the media regarding the unavailabi lity of tickets in the primary market wh ile t ickets at inflated prices were available in the secondary market. The FBP investigation looked at the inadequate disclosure of the redirection from Ticketmaster's website for the primary market to Ticketmaster's website for the secondary market; the TicketsNow website.
Specifically, the FBP examination was into the issue of whether Ticketmaster was making materially false or misleading representations to the publ ic on its website by redirecting consumers to the secondary ticket marketplace without their knowledge, where consumers were being charged more than face va lue for the tickets.
The FBP investigation also looked at a cash back incentive that was offered to Ticketmaster customers in light of complaints made at that time.
Public Summary: Refusais Moved on by Respondents, and Grormds for Moving Issue 1 - Historie Conduct - Esto Respondents' Memorandum of Fact and Law, 29{e) 8t 30 • what the Bmeau intended to convey to Ticketmaster in its no action letter • remedy - as noted above, the Respondents will argue that the Commissioner's delay in bringing this Application and notifying the Respondents about any issue related to the display of pricing should mitigate or eliminate the award of any remedy against the Respondents. The Commissioner' s knowledge of the Respondents ' conduct, and its delay in proceeding, are issues that the Respondents will advance and which the should be entitled to ex lore on discove 143- 527- What open matters [was Mr. Homan referencin 144 528 communicated to Ticketmaster
The Civil Matters Branch examined Ticketmaster's conduct under the restrictive trade practices provisions of the Competition Act. Specifically, the examination was into the issue of whether Ticketmaster had engaged in anti-competitive practices, contrary to section 79 of t he Act.
The Mergers Branch examined the proposed merger of Live Nation Inc. and Ticketmaster Entertainment Inc. Specifically, the examination was into the issue of whether the proposed merger of Live Nation Inc. and Ticketmaster Entertainment Inc. would result in a substantial prevention or lessening of competition.
165- 608 The author of the letter, Brent Homan, is no longer 166 employed by the Bureau. However, the letter speaks for itself, more specifically, it makes it clear that the any actions taken based on this information should not be regarded as approved or endorsed by the Bureau.
Pages el Waiver and Remed March 28 Answer The author of the letter, Brent Homan, is no longer employed by the Bureau. However, other matters that were open at the time relate to issues that were ]? investigated by the Civil Matters Branch and the Mergers Branch.
Public Summary: Refusais Moved on by Respondents, and Grormds for Moving I ssue 1 - Historie Conduct - Estoooel. Waiver and Remedv pq On Refusa i 167 612 Why did Mr. Homan not bring to Ticketmaster's attention [in Exh ibit 117] anything to do with fee displays so that Ticketmaster might avoid conflict with the fa lse and misleading representations and deceptive marketing practices provisions of the Competition Act in the future?
Specifically, the FBP examination was into the issue of whether Ticketmaster was making materially false or misleading representations to the publ ic on its website by redirecting consumers to the secondary t icket marketplace without their knowledge, where consumers were being charged more than face va lue for the tickets.
Page6 March 28 Answer Brent Homan is no longer employed by the Bureau. The Bureau does not provide advice outside the context of its program for advisory opinions. The investigation was commenced following concerns in the media regarding the unavailabi lity of tickets in the primary market while t ickets at inflated prices were ava ilable in the secondary market. The FBP investigation looked at the inadequate disclosure of the redirection from Ticketmaster's website for the primary market to Ticketmaster's website for the secondary market; the TicketsNow website.
Public Summary: Refusais Moved on by R espondents, and Grormds for Moving Page 7 Issue 1 - Historie Conduct - Estoooel. Waiver and Remedv pq On Refusai March 28 Answer Respondents' Memorandum of Fact and Law 4ft 29(f) a. 30 • why, if the Respondents ' price displays drew no criticism from the CommissioneT in 2009 and 2010, and were not even identified among the potential problems that Ticketmaster should have regard to in the future , those price displays were alleged to be deceptive and misleading eight
years lat er in 2017 • remedy - as noted above, the Respondents will argue that the Commissioner' s delay in bringing this Application and notifying the Respondents about any issue related to the display of pricing should mitigate or eliminate the award of any remedy against the Respondents. The
Commissioner's knowledge of the Respondents ' conduct, and its delay in proceeding, are issues that the Respondents will advance and which thev should be entitled to explore on discoverv 178- 647, Are there any facts associated with the 2009 version of the fee 179 650 display that the Bureau did not have access to in 2009 and 2010?
187 677 When did the Bureau first consider that the 2009 fee displays [Refusai maintained] were misleading?
187 678 When did the Bureau open its file as to whether or not the fee Commissioner wi ll answer (April 1) displays were misleading on ticketmaster.ca, the ticketsnow site or the t icketweb site? 187 679 Has anything changed since 2010 as to whether or not the [Refusai maintained] 2009 or 2010 fee displav was misleading? 189 685 Why did the Bureau take eight years [after Ms. Rosen started [Refusai maintained] - a screen capture campaign] to raise this complaint with 190 Ticketmaster?
The Bureau has become aware of additional facts following discoveries, for example, complaints received by Ticketmaster in relation to its 2009 version of the fee display. Add itiona l examples of the Respondents' buy-flows were also included in the Respondents' productions.
Public Summary: Refusais Moved on by Respondents, and Grormds for Moving Page8 Issue 2 - Individual Respondent Allegations - Liabilitv pq On Refusai 1 Submission March 28 Answer Respondents' Memorandum of Fact and Law 4ft 34(a) • the connection between ceitain Respondents and the Ticketing Platfonns 45 176 Does the Commissioner say that Live Nation Entertainment Inc. made representations The Commissioner has provided the on [ticketmaster.ca, t icketweb.ca or ticketsnow .corn]? facts with respect to Live Nation Entertainment Inc. 's participation in the representations.
See, for example, the Respondents' Motion Record at pages 113-116 and answer to UT 4 (Respondents' Motion Record at Tab SE, page 496).
73 276- You are not aware of any facts associating VIP Tour with [ticketmaster.ca]? 277
1S2-3 (Q 265 and Q266), at page 1S6 (Q 278 and 280), at pages 1S7-1S8 (Q 28S); and UT 9, UT 10 and UT 47 (Respondents' Motion Record at Tab SE, pages 498; S1S-S16).
This question was answered at the examination - see for example the Respondents' Motion Record at page
Public Summary: Refusais Moved on by Respondents, and Grormds for Moving Page 9 Issue 2 - Individual Resoondent Alleaations - Liabilitv Pa On Refusai 1 Submission March 28 Answer Respondents' Memorandum of Fact and Law 4ft 34(b) • whether, and how, each Respondent is said to have been acting tointly_ or in concert with other Respoudents 75- 285- [When you said that you are not aware of any facts linking VIP Tour Company [Refusai maintained] 76 286 to ticketmaster.ca at this time], does that include directly or indirectly by actina in concert or iointlv with somebodv else? 239 844, What facts are associated with Live Nation Entertainment lnc. [or any of the [Refusai maintained] - 848 other seven respondents] acting jointly with another respondent in respect of 240 the OneRepublic concert [referenced on page 12 of the Commissioner's pleadings]?
239 845, What facts does the Commissioner have in association with whether Live [Refusai maintained] - 848 Nation Entertainment lnc. [or any of the other seven respondents] acted in 240 concert in respect of the OneRepublic concert [referenced on page 12 of the Commissioner's pleadings]?
Respondents' Memorandum of Fact and Law 4ft 34(c) • whether, and how, each Respoudent is said to have been actingsevaratelv and individuallv with respect to certain price representations 239 846, What tacts or information is the Commissioner aware of with respect to [Refusai maintained] - 848 whether Live Nation Entertainment lnc. [or any of the other seven 240 respondents] acted separately, in any way, with respect to the OneRepublic concert freferenced on paoe 12 of the Commissioner's pleadinosl?
Respondents' Memorandum of Fact and Law 4ft 34(d) • whether, and how, each Respondent is said to have "vermitted'' others to mak:e price representations ou certain Ticketing Platf01m s 240 847, What information does the Commissioner have, or is the Commissioner aware [Refusai maintained] 848 of, with respect to, or in connection with, whether Live Nation Entertainment lnc. [or any of the other seven respondents] permitted some other respondent to act in any particular way with respect to the OneRepublic concert freferenced on paoe 12 of the Commissioner's pleadinosl? 333 1119 Which respondents are said to make the price representations in question [Refusai maintained] and which respondents are said to permit others to make the price representations in ouestion?
333 1120 1 would like to have the Commissioner's information with respect to the [Refusai maintained] - manner in which each of the respondents permits another respondent to 334 make price representations. Respondents' Memorandum of Fact and Law 4ft 34(e) • how each Respondent is actuallv said to have made the price representations at issue 334 1121 1 would like to have the Commissioner's information as to the manner in [Refusai maintained] which each respondent makes the price representations that are the subject of this aoolication.
Public Summary: Refusais Moved on by R espondents, and Grormds for Moving Page 10 I ssue 3 - Industrv Practices and Standards - Liabilitv and Remedv Pg Qn Refusai 1 Submission March 28 Answer Respondents' Memorandum of Fact and Law 4U 38 • the pleadings demonstrate that the parties view e-commerce standards as relevant to the disposition of this Application. The Commissioner has afready delivered limited information about other e-commerce vendors, but has maintained his refusai to answer other related questions. The
Commissioner should be obliged to answer full y with respect to his knowledge, information and belief in response to these questions 318- 1067, 1 want all [the information known to the Commissioner as to what This question has been answered - see Respondents' 319, 1079- online ticket vendors have marketed and sold tickets using Motion Record at tab SE, page 513 - response to 321- 1081 "attainable prices" inclusive of any mandatory fees, in particular what undertaking 45 arising from Q1081. 322 competitors to Ticketmaster do so, where in Canada t hey do it, on what platforms, for what kinds of t ickets (primary or resa le) and in what time oeriods l.
378, 1258, I would like to know what information the Commissioner has as to 380- 1264 what, if anyth ing, was standard [pricing practice] in e-commerce 381 across the period relevant to this litigation.
384 1276 Has the Bureau gathered or received information from market participants in the ticket sale or resale business in Canada?
384 1277 Does the Commissioner have any information about t he market for [Refusai maintained] online sa les or resales of tickets in Canada other than what has been Motion for answer withdrawn ( March 29) discussed so far?
The Commissioner does not allege that there is a standard. As alleged by the Commissioner in his Reply, drip pricing in e-commerce is far from universal. The Commissioner has provided the Respondents with examples of facts supporting this position. Examples were provided in response to undertakings #45, #57.
The Bureau has gathered information from the websites of other ticket vendors, examples of which were included in the Commissioner's Affidavits of Documents and in the Commissioner's answers to undertakings (see answer to undertaking #45).
Public Summary: Refusais Moved on by Respondents, and Grormds for Moving Page l] Issue 4 - Per Order Fees - Liabilitv and Remedv Pa On Refusai 1 Submission March 28 Answer Respondents' Memorandum of Fact and Law 4ft 40 • Per order fees (for order processing) are charged at a set price for an entire order, regardless of the number of tickets purchased. The Commissioner alleges that the per ticket amount of these fees should be disclosed on the very fust page of the Ticketing Platforms seen by a fan.
The Commissioner has refused to answer as to how the Respondents could know what the order processing fee would amount to, per ticket, before knowing how many tickets are being ordered. As the Commissioner has indicated that per order fees form part of his allegations against the Respondents, he should answer this question 279- 941- [ How does] Ticketmaster know what the order processing fee will 280 942 amount to per t icket before it knows how many tickets are in the order?
In certain cases, the Respondents provide consumers with an option to pre-select the number of tickets for a purchase or else sets a default number of tickets for the consumer's initial search. In these instances,
the Respondents have all available information for that particular order to present an attainable price, inclusive of per-order fees. This demonstrates that it is open to the Respondents to structure their representations so as to know the full price of a particular order prier to presenting prices to consumers. However, the Respondents have chosen to structure their representations so as to represent prices that are not in fact attainable by choosing to reveal Non-Optional Fees, such as the order orocessina fee later on in the ourchasina orocess.
Ali fees applicable to tickets for particular events are set between the Respondents and their cl ients in advance of the event going on sale. The fees that apply to each purchase are therefore known to the Respondents prior to consumers entering into the purchase flow.