In the continuing saga of TicketNetwork, Inc. versus The Bushnell Center for the Performing Arts and David Fay, it’s President and CEO, Fay and the Bushnell have once more lost a major legal battle. On September 9th, 2014, Superior Court Judge Nina Elgo granted TicketNetwork’s motion to strike a counterclaim filed in the defamation lawsuit. In the counterclaim, the Bushnell and Fay attempted to sue TicketNetwork, claiming that the secondary ticket market leader tried to stifle the Defendants’ Constitutional freedom of speech right by filing an “SLAPP” (strategic lawsuit against public participation) lawsuit.
The court, in its decision to strike the counterclaim, cited three reasons: the Defendants failed to file the counterclaim on a timely basis; the Defendants failed to seek permission from the Court; and the counterclaim would unfairly burden and prejudice TicketNetwork if it were permitted to proceed nearly one week before the trial date. In addition, since Connecticut does not have “anti-SLAPP” statutes authorizing such lawsuits, the Court declined to recognize the Defendants’ claims for that reason as well.
TicketNetwork filed the original defamation lawsuit in April 2011 after Bushnell President and CEO David Fay allegedly made defamatory remarks about the Company during a public hearing concerning ticket resale legislation in the State. TicketNetwork supported the proposed bill, but the Bushnell opposed it.
Initially, the Defendants tried to have the defamation case dismissed, arguing that comments made during testimony at public hearings are privileged.
But in his ruling refusing to dismiss TicketNetwork’s Complaint, Hartford Superior Court Judge Richard M. Rittenband wrote in October, 2011 that while the question of privilege could be debated, he did not believe similar statements Fay allegedly made to a local newspaper would be protected by a privilege doctrine.
“Although the claim of immunity for statements made before a legislative hearing may have merit, it does not implicate the Court’s jurisdiction and is more properly a special defense,” Rittenband wrote. “More importantly, Mr. Fay’s affidavit states that he recounted his testimony to a reporter from the Journal Inquirer, and immunity does not attach to an interview with a newspaper.”
According to the TicketNetwork lawsuit, Fay testified that TicketNetwork places holds on large amounts of ticket inventory during public on sales for popular events, later buying the best tickets and manipulating the tickets’ resale prices. Fay also allegedly testified that TicketNetwork uses computer programs to purchase event tickets automatically, shutting out the general public.
The Company’s suit went on to claim that Fay’s statements were “false, because TicketNetwork functions as an electronic marketplace for the selling of tickets by those who have tickets, and TicketNetwork does not itself buy tickets, or put tickets on hold, or raise the re-sale price on tickets.”
Following the public hearing, Fay allegedly gave an interview to the Journal Inquirer newspaper of Manchester, CT, where he appeared to reiterate his remarks, according to the TicketNetwork lawsuit.
In March, 2014 Judge Trial Referee Jerry Wagner denied the Defendants’ Motion for Summary Judgment in their favor, ruling that he could not decide the case on the law alone because of the factual issue whether Fay made all the statements that TicketNetwork claims are defamatory solely in testimony to a legislative committee or to a third party, as well. The judge said there is a genuine issue of fact as to whether Fay repeated some of the statements in an interview with the Journal Inquirer.
Asked to comment about this most recent court action, one of TicketNetwork’s attorneys, William V. Grickis observed: “For all of Mr. Fay’s ego and bravado, it is worth noting that there are judges who will not hesitate to sweep away meretricious distractions and require the parties to present to the jury the issues that are truly central this case — simply the allegations that Mr. Fay’s unsworn testimony before the General Law Committee defamed my client, one of the most successful and growing private employers in Connecticut.”
The original defamation lawsuit is slated to go to trial on September 16.
TicketNetwork, headquartered in South Windsor, is an online marketplace that provides an outlet for buyers and sellers of tickets to live entertainment events. The company was founded in 2002. It operates several retail sites and partners with large name brand travel and media companies.