The District of Columbia says it should be allowed to cap concert ticket resale prices in the face of a legal challenge brought by a coalition of secondary marketplace operators.
Resale trade group Ticket Policy Forum, along with its members SeatGeek, Vivid Seats, TickPick and Gametime, sued last month to block D.C.’s newly enacted Restricting Egregious Scalping Against Live Entertainment (RESALE) Act as unconstitutional. Scheduled to become enforceable in 2027, the RESALE Act limits secondary ticket price markups at 10% above face value.
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The resellers argue that a 10% cap would force them to “operate at a loss” and actually raise consumer prices by driving ticket sales to the black market. They want a judge to issue an immediate injunction barring enforcement of the law. But in a response brief on Monday (Nov. 9), the D.C. Attorney General’s Office says that is both unnecessary and unfair.
“The will of the people plus their interests in protecting consumers and a vital, cultural industry far outweigh the pecuniary interests of a handful of corporations,” write the government lawyers. “Plaintiffs include multi-billion-dollar companies that can easily absorb any hypothesized losses from complying with one city’s law while litigation proceeds. Plaintiffs may later be able to recover those losses, but the harms to the district and its people from a preliminary injunction are truly irreparable.”
D.C.’s attorneys say their resale cap was properly enacted after residents “became fed up with soaring ticket prices,” and that the bill “sailed through” both local government and congressional approval even as ticket resellers lobbied hard to kill it. “Striking out with the democratic process, Plaintiffs dressed their policy objections up in constitutional garb and turned to this court for a judicial veto,” reads Monday’s response brief.
According to D.C., there’s simply no merit to the ticketing companies’ claims that the RESALE Act is unconstitutional. Among other arguments, the resellers have said there’s a First Amendment issue with a portion of the law that requires them to list a ticket’s original, face value cost next to the resale rate. The companies claim this is unlawful “compelled speech” — but D.C. says that argument “strains credulity.”
“The original ticket price is hardly irrelevant to a consumer — without it, the consumer cannot fully understand the value of the resold ticket and make an informed decision about whether to buy it,” write the district’s attorneys.
A hearing on the injunction motion is scheduled for Nov. 19 in D.C. federal court. In a statement to Billboard on Tuesday (Nov. 10), the Ticket Policy Forum said, “The court should bar enforcement of the RESALE Act to prevent the significant and lasting damage it would cause.”
“The law violates the dormant Commerce Clause and D.C. Home Rule Act by regulating sales outside of D.C.; the price and fee caps in the law and arbitrary, confiscatory and violate the Due Process Clause of the U.S. Constitution; and the law compels speech that marketplaces cannot verify in violation of the First Amendment,” added the trade group. “Enforcement of the act also will drive ticket sales into the shadows, subjecting fans to greater risks from street-side scams and increased fraud.”
D.C. is among more than a dozen local governments that have made moves in recent years to cap ticket resale prices. Such laws have passed in Maine and Vermont, and similar bills are under consideration by statehouses in Massachusetts, New York and Tennessee. A proposed resale cap failed in the California legislature this summer after resellers spent millions of dollars lobbying against it.
