Honestly, the jokes write themselves.  But, for a defendant, a class action lawsuit challenging its online purchase process is certainly no laughing matter.  And since this case is one of a number of filings currently pending against various New York cultural institutions, readers of this blog should certainly take note. 

Earlier this month, plaintiffs filed a putative class action against the Museum of Sex in the Southern District of New York.  The thrust of the action, as it is in the other actions filed by the same attorneys against other New York institutions, is that the Museum violated Section 25.07 of New York’s Arts & Cultural Affairs Law by charging a “service fee” on top of the ticket price and failing to disclose the total ticket cost earlier in the online purchase journey.

The law, which went into effect in 2022, provides (inter alia) that operators of entertainment venues and ticket sellers must clearly and conspicuously disclose the total ticket cost, inclusive of all ancillary fees, and also clearly disclose that portion of the ticket price that’s a service charge or other surcharge. In addition, the law provides that the “disclosure of the total cost and fees shall be displayed in the ticket listing prior to the ticket being selected for purchase.”  Further, the law provides that “[t]he price of the ticket shall not increase during the purchase process” (except for adding “reasonable fees for the delivery of non-electronic tickets based on the delivery method selected by the purchaser”).

The complaint alleges that the Museum violated this law because consumers on its website must click through a number of screens during a purchase journey before seeing the additional mandatory fees they will be charged on top of the actual ticket price, both taxes and service fees.  Further, plaintiff alleges, consumers must figure out for themselves the amount allocable to a “service fee” by clicking on a “?” icon, and must do so while a countdown clock is clicking.

Why does this case (and the others just like it) matter?  While this action was brought under a law specifically addressing ticket prices and entertainment venues, it’s of a piece with a broader trend: as we’ve blogged about, both the FTC and a few states – including, notably, California – have taken steps to address how companies disclose the extra fees they charge on top of their base prices.  In addition, while the use of a clock down clock may not trigger any issues under New York’s Arts and Cultural Affairs Law, it is a marketing device that has recently come under scrutiny by the FTC as a potential “dark pattern” as creating a false sense of urgency if it simply re-sets itself when it runs down.  Apparently, these fees and techniques are attracting the attention not only of regulators but the class action bar too.

I don’t know about you but this doesn’t exactly put me in the mood.

Arling Ruiz vs. The Museum of Sex, LLC,  Case 1:24-cv-00178 (SDNY, Filed 1/9/24)