STATE OF NORTH CAROLINA by forrests

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									STATE OF NORTH CAROLINA COUNTY OF GUILFORD

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 07 CVS 11310___________ ) ) ) ) ) FIRST AMENDED ) COMPLAINT AND JURY ) DEMAND (CLASS ACTION) ) ) ) )

JEFFREY A. and LISA S. HILL, individually and on behalf of all others similarly situated, Plaintiffs, v. StubHub, Inc. d/b/a “StubHub!” and/or “stubhub.com”, “John Doe Seller 1", and “John Doe Sellers 2, et. al.” Defendants.

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NOW COME Plaintiffs JEFFREY A. and LISA S. HILL, individually and on behalf of all others similarly situated, complaining of DEFENDANTS StubHub, Inc. d/b/a “StubHub!” and/or “stubhub.com,” “John Doe Seller 1" and “John Doe Sellers 2, et al.” demanding a trial by jury and allege and say: 1. 2. Plaintiffs are citizens and residents of Guilford County, North Carolina. Defendant StubHub, Inc. d/b/a “StubHub!” and/or “stubhub.com” is a corporation organized and existing under the laws of the State of California. At all times relevant to the events and transactions alleged herein, Defendant did business in North Carolina as “StubHub!” and/or “stubhub.com.” Defendant “John Doe Seller 1” is the person, firm, or entity who offered to sell, sold, or participated in the sale of the tickets described herein to Plaintiffs. As of the date of Plaintiffs‟ filing of this civil action, the precise identity of “John Doe Seller 1" is unknown to Plaintiffs and, therefore, pursuant to N.C.G.S. § 1-166 Plaintiffs bring this action against the said Defendant as “John Doe Seller 1.” Defendants “John Doe Sellers 2, et. al” are the persons, firms, or entities who offered to sell, sold, or participated in the sale of the tickets described herein to the members of the class described and identified herein. Upon information and belief, one or more of the persons, firms, or entities described as “John Doe Sellers 2 et. al” are citizens and residents of the State of North Carolina, or business entities organized and existing under 1

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the laws of the State of North Carolina. As of the date of Plaintiffs‟ filing of this civil action, the precise identities of “John Doe Seller 2, et. al" are unknown to Plaintiffs and, therefore, pursuant to N.C.G.S. § 1-166 Plaintiffs bring this action against the said Defendants as “John Doe Seller 2, et. al.” 5. This Court has jurisdiction over Defendant StubHub, Inc. d/b/a “StubHub!” and/or “stubhub.com” pursuant to N.C.G.S. §1-75.4 in that at all times relevant to the events and transactions alleged herein, Defendant StubHub, Inc., via the Internet and mail courier services, marketed, advertised, offered for sale, sold and/or facilitated and participated in the sale of, earned commission on, collected payment for, collected fees for, and delivered for sale and use by Plaintiffs and others as consumers in North Carolina, tickets permitting attendance at the “Miley Cyrus as Hannah Montana” concert on November 25, 2007 at the “Greensboro Coliseum” in Greensboro, Guilford County, North Carolina. Plaintiffs further allege that, for a considerable amount of time prior to the events and transactions with Plaintiffs as alleged herein, Defendant StubHub, Inc. had regular, ongoing, continuous and systematic contacts with the State of North Carolina and its citizens, had availed itself of the privilege of conducting business in this State, and had the benefits and protections of the laws of this State in that Defendant StubHub, Inc., through the Internet and otherwise, marketed, advertised, sold and/or facilitated and participated in the sale of, earned commissions on, collected fees for, and delivered, and collected payment for in this State from the citizens of this State for tickets of the type and kind alleged herein for sporting and entertainment events of the kind alleged herein such that this Court has personal jurisdiction over Defendant StubHub, Inc. pursuant to N.C.G.S. §1-75.4. Defendant StubHub operates a website, www.stubhub.com, dedicated exclusively to the resale of tickets to live entertainment events. Upon information and belief, Defendant StubHub has sold more than ten million tickets since its inception in 2000. This Court has jurisdiction over Defendant “John Doe Seller 1" pursuant to N.C.G.S. §1-75.4 in that at all times relevant to the events and transactions alleged herein, Defendant “John Doe Seller 1", via the Internet and mail courier services, marketed, advertised, sold and/or participated in the sale of, earned profit on, and delivered for sale and use by Plaintiffs as consumers in North Carolina, tickets permitting attendance at the “Miley Cyrus as Hannah Montana” concert on November 25, 2007 at the “Greensboro Coliseum” in Greensboro, Guilford County, North Carolina. This Court has jurisdiction over Defendants “John Doe Seller 2, et. al” pursuant to N.C.G.S. §1-75.4 in that at all times relevant to the events and 2

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transactions alleged herein, Defendants “John Doe Seller 2, et. al,” via the Internet and mail courier services, marketed, advertised, sold and/or participated in the sale of, earned profit on, and delivered for sale and use by Plaintiffs and members of the class as consumers in North Carolina, tickets permitting attendance at the “Miley Cyrus as Hannah Montana” concert on November 25, 2007 at the “Greensboro Coliseum” in Greensboro, Guilford County, North Carolina. Prior to September 15, 2007, the “Greensboro Coliseum” advertised that, on that date beginning at 10:00 a.m., it would begin ticket sales for the “Miley Cyrus as Hannah Montana” concert on November 25, 2007 at the “Greensboro Coliseum.” Said event is presently enormously popular among younger female children. Plaintiffs are the parents of an (8) eight year old daughter who on many occasions indicated to Plaintiffs her sincere and strong desire to attend said concert. At 10:00 am on that date, the “Greensboro Coliseum,” directly and through its agent, began selling tickets at face value for the event identified herein. On the morning of September 15, 2007, well before 10:00 am, Plaintiff Lisa S. Hill and her friends, also mothers of young girls who desired to attend the “Miley Cyrus as Hannah Montana” concert, attempted, without success, to purchase tickets for face value via the Internet through the website of the “Greensboro Coliseum” and other websites. Within minutes after 10:00 a.m., word spread between Plaintiff Lisa S. Hill and the other mothers that the event was completely sold out. Plaintiff Lisa S. Hill and the other mothers continued to search the Internet for tickets to said event. At or before 10:30 a.m., Plaintiff located four tickets on Defendant StubHub, Inc.‟s website. Using Plaintiff Jeffrey A. Hill‟s credit card account, with a credit card bearing Plaintiff Lisa S. Hill‟s name, Plaintiff Lisa S. Hill authorized the Defendant StubHub, Inc. to charge the credit card for (4) four tickets to the “Miley Cyrus as Hannah Montana” concert, for the total sum of $667.55, said sum consisting of a charge of $149.00 for each of four tickets, Defendant StubHub, Inc.‟s commission in the amount of $59.60 and a “shipping/handling” charge of $11.95, said “shipping charge” presumably needed by Defendant StubHub, Inc. and/or Defendant “John Doe Seller 1" to cover shipping charges to return the tickets to North Carolina within moments of the purchase of the tickets. It was not until Plaintiffs received the tickets that they learned that the face value of the tickets was $56.00 each.

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Defendants StubHub, Inc., via the Internet, marketed and offered the tickets identified herein for sale to Plaintiffs, North Carolina residents, for an event to be held in the State of North Carolina. Defendant StubHub, 3

Inc. claims to have no ownership of said tickets, but offered them for sale on behalf of Defendant “John Doe Seller 1” and likewise offered tickets for sale to similar sporting and entertainment events at venues in North Carolina to members of the class on behalf of Defendants “John Doe Seller 2, et. al.” Defendant StubHub, Inc. offered to sell, sold and/or facilitated and substantially participated in the sale of the tickets to Plaintiffs and other members of the class described herein by providing Defendants “John Doe Seller 1” and Defendants “John Doe Sellers 2, et. al.”: free listing of tickets on Defendant StubHub‟s website, which is marketed to citizens of North Carolina, including Plaintiffs and members of the class; national marketing programs, artists, and media partnerships to help market Defendant “John Doe Seller 1's” and “John Doe Sellers 2, et. al‟s” tickets and attract more buyers, including marketing to and attracting North Carolina buyers, such as Plaintiffs and members of the class, for events occurring in the State of North Carolina; and free shipping directly to the buyer, including shipping to North Carolina buyers, such as Plaintiffs and members of the class. Defendant Stubhub, Inc. shipped the tickets to Plaintiffs under its own name in a FedEx envelope bearing Defendant Stubhub‟s return address and using a FedEx account number assigned to Defendant Stubhub, Inc. Further, the name of the person causing the FedEx shipment was a “John Whelan,” whom Plaintiffs are informed and believe, and therefore allege, is/was an employee of Defendant Stubhub, Inc. Defendant StubHub, Inc. further sold, facilitated and participated in the sale of the tickets by: acting as the only contact between Defendant “John Doe Seller 1” and Plaintiffs, and between Defendants “John Doe Sellers 2, et. al.” and members of the class, and directly charging the buyers‟ credit card, which appeared on the buyers‟ credit card statements as sales from Defendant StubHub, Inc. Once Defendant acquired possession of Plaintiffs‟ money, and the other class members‟ money, Defendant StubHub, Inc. deducted a commission equivalent to 15% of the total sales price from Defendant “John Doe Sellers‟ ” total sales price and a second commission equal to 10% of the buyers‟ purchase price, before tendering a StubHub, Inc. company check to the Defendant “John Doe Sellers.” As part of its transaction and contract with Plaintiffs, Defendant StubHub, Inc., and not the John Doe seller identified herein, assumed the risk of loss of the tickets in the events that the tickets are not received, are not the same or better than those purchased, are invalid, or are for an event that is cancelled, said guarantees being part of Defendant Stubhub, Inc.‟s “Fan Protect Guarantee” the said Defendant presented to Plaintiffs when they purchased the tickets on the said Defendant‟s website. Despite the fact that Defendant StubHub, Inc. lists the tickets for sale on its website in its own name, collects payment for the tickets in its own name, delivers the tickets in its own name and guarantees the tickets 4

in its own name, the said Defendant now contends it is not the “seller” of the tickets, but rather the tickets are sold by some other entity. However, when Plaintiffs asked the said Defendant to identify the alleged “seller” of their tickets, the said Defendant refused Plaintiffs‟ request. Defendant also forbids, in its User Agreement, John Doe sellers from identifying themselves by placing any personal information in the Seller Comments area of ticket listing. In a civil action pending against StubHub in Massachusetts, the court, upon plaintiffs‟ motion to compel, ordered StubHub to produce documents identifying the “individuals” who sold tickets via www.stubhub.com. Moreover, in that pending civil action, Defendant StubHub on January 17, 2008 amended its answer to remove a statement contained in its original pleading that “Stubhub at no time itself resells tickets” and artfully stated instead that “Stubhub is not in the business of reselling tickets.”

11.

Defendant StubHub, Inc. sold, and/or facilitated and participated in the sale of the subject tickets to Plaintiffs with knowledge that the tickets for an event at a North Carolina venue could be sold, regularly are sold, and in this case were sold to Plaintiffs, North Carolina residents, at prices greatly exceeding the tickets‟ face value in violation of North Carolina State law. Upon information and belief, Defendant StubHub, Inc. advised and encouraged Defendant “John Doe Seller 1” and Defendants “John Doe Sellers 2, et. al.” to sell the tickets at their “market value,” as determined by the sale price of comparable listings on Defendant StubHub, Inc.‟s website and/or other ticket brokering sites, rather than their “face value,” it being the specific business plan, intent, and goal of Defendant “StubHub, Inc.” to encourage and assist Defendant “John Doe Sellers,” and all sellers, to sell tickets at the highest possible price to Plaintiffs, and all buyers, because Defendant StubHub, Inc.‟s commission is a direct percentage of the sellers‟ sales price and the buyers‟ purchase price of said tickets. Through its actual involvement in pricing tickets, StubHub creates and develops content on its website. Upon further information and belief, Defendant StubHub selects which tickets can be sold on its site. Upon information and belief, Plaintiffs allege that John Doe sellers who wish to sell tickets on Defendant StubHub‟s website must select from among a series of “drop down” menus (including event and location) created and implemented solely by Defendant StubHub, Inc. and that tickets may be sold only for events already set up in “drop down” menus created and implemented solely by Defendant StubHub, Inc., such that Defendant StubHub, Inc. alone decides those events for which tickets are sold, in what manner and with information content created by the said Defendant. Defendant StubHub advises: “If your event is not yet featured on our site, you can request that we add it. . . If we choose to feature the event on stubhub.com, you will hear from us within two business days.” 5

Upon further information and belief, StubHub further creates, and participates with John Doe Sellers to create, content by: (a). instructing sellers of season tickets to contact them because “we will need to help you set that up;” (b). taking possession of possession tickets at its Last Minute Services offices, located in the State of the event; and (c). using a software program that automatically adjusts listed ticket prices to reflect fluctuations in market value. Plaintiffs are informed and believe, and therefore allege, that despite having clear notice that the ticket selling activities described herein violate North Carolina law, Defendant StubHub, Inc., continues to sell and support, encourage and facilitate the sale of tickets in this state in violation of North Carolina law. Defendant StubHub employs lobbyists in its effort to have state scalping laws repealed. Plaintiffs are informed and believe, and therefore allege, that in response to a 2006 demand by the Attorney General of Connecticut, a state with “scalping” laws similar to those of North Carolina, Defendant Stubhub, Inc. took steps to curtail ticket scalping in that state on its website while at the same time electing not to implement the same or similar measures in North Carolina, despite having full knowledge that North Carolina is also an “anti-scalping” state. Further, Defendant Stubhub, Inc. has shown continued disregard for the laws of the State of North Carolina and the rights of its citizens, with one of its spokespersons, Mr. Sean Pate, recently being quoted as saying, in regard to the Hannah Montana event, “What‟s happened here is that you have a large majority of novice ticket buyers, parents shopping for their children, who don‟t realize it‟s nearly impossible to buy tickets for these hot act anywhere but from resellers.” Mr. Pate is likely correct in this assertion given the Defendants‟ unfair and oppressive ticket acquisition practices alleged herein in Paragraph 12, below.

12.

Plaintiffs are informed and believe, and therefore allege, that Professional Ticket Resellers and others, possibly including the Defendant StubHub, Inc. and/or its agents and Defendants “John Doe Sellers,” in the “ticket brokering” industry had in place on and prior to September 15, 2007 at 10:00 a.m., a sophisticated computer program created and licensed to online ticket resellers by RMG Technologies or other system and the means (internet, telephone, pre-purchase, and in person) to purchase at face value the instant ticket go on sale from lawful vendors large quantities of the tickets identified herein such that Plaintiffs and many other buyers had no realistic opportunity to purchase said tickets from the “Greensboro Coliseum” for face value. Said computer program literally allows its users to electronically “cut in line” ahead of ordinary consumers like Plaintiffs, and to circumvent rules such as ticket limits, and buy up 6

tickets for immediate online resale at prices violating North Carolina law. In a September 28, 2007 press release a StubHub spokesperson explained: “[m]any fans have been recently disappointed when despite logging online the minute an on-sale begins, no tickets were available for purchase. It‟s an unfortunate reality of the primary distribution of tickets today.” Upon information and belief, Defendant StubHub, Inc. participates in and encourages such Professional Ticket Resellers and others to use such means to obtain significant quantities of ticket inventory by offering large ticket inventory carriers tailored tools and dedicated “Large Seller Account Managers” that offer comprehensive customer service as well as performance-based benefits. A „Large Seller‟ tab on StubHub‟s website contains information for interested sellers. Plaintiffs are informed and believe, and therefore allege, that Defendant Stubhub, Inc. on a regular basis takes “data feeds” of the ticket inventories of Professional Ticket Resellers, increases those ticket prices by 15% to cover Defendant Stubhub, Inc.‟s commission and then lists the tickets for sale on the said Defendant‟s website.

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Via the Internet, Defendant StubHub, Inc. offered the tickets identified herein for sale to Plaintiffs on a non-negotiable basis and if Plaintiffs and their family, particularly their eight year old daughter, wished to attend the event identified herein in her hometown in Greensboro, North Carolina, at a facility where their tax dollars at some level support, they had no meaningful or realistic choice but to purchase the tickets at grossly inflated prices from Defendant StubHub, Inc. and Defendant “John Doe Seller 1.” FIRST INDIVIDUAL CAUSE OF ACTION (Violations of N.C.G.S. § 14-344)

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Plaintiffs reallege the allegations contained in Paragraphs 1- 13 above. N.C.G.S. § 14-344 makes it unlawful for anyone to sell or offer to sell to Plaintiffs the tickets identified herein for a sum greater than the combined face value of the tickets, tax, and a service fee not to exceed $3.00 per ticket. By Stubhub, Inc.‟s sale of the subject tickets and/or its facilitation of and participation in the sale – marketing the tickets, offering the tickets for sale on its website, profiting from the sale, guaranteeing the authenticity and quality of the tickets, acting as the sole contact between Defendant “John Doe Seller 1” and Plaintiffs, arranging for shipment of the tickets into North Carolina, encouraging Defendant “John Doe Seller 1” to price the tickets at “market value,” and directly charging Plaintiffs‟ credit card 7

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then taking possession of Plaintiffs‟ money – to Plaintiffs of the tickets identified herein Defendant StubHub, Inc. and Defendant “John Doe Seller 1" have willfully and purposefully violated N.C.G.S. § 14-344. Further, and in addition to Plaintiffs‟ allegations contained herein that Defendant Stubhub, Inc. itself offered and sold tickets to Plaintiff at prices that violate North Carolina law, the said Defendant‟s fees charged to Plaintiffs in connection with the transaction in and of themselves violate N.C.G.S. § 14-344. 17. Plaintiffs have been „scalped‟ by Defendant StubHub, Inc. and by Defendant “John Doe Seller 1" and damaged by Defendants‟ violations of N.C.G.S. § 14-344 in an amount to be proven at trial, but which amount is at least the sum of $431.60.

SECOND INDIVIDUAL CAUSE OF ACTION (Civil Conspiracy to Violate N.C.G.S. § 14-344) 18. 19. Plaintiffs reallege the allegations contained in Paragraphs 1- 17 above. N.C.G.S. § 14-344 makes it unlawful for anyone to offer to sell or to sell to Plaintiffs the tickets identified herein for a sum greater than the combined face value of the tickets, tax, and a service fee not to exceed $3.00 per ticket. Defendant StubHub, Inc. and Defendant “John Doe Seller 1” shared an agreement, either express or implied, to offer to sell and to sell tickets to Plaintiffs, North Carolina residents, for an event at a venue in the State of North Carolina at a price significantly higher than face value in violation of N.C.G.S. § 14-344. Defendant StubHub, Inc., through its agreement with Defendant “John Doe Seller 1” and pursuant to a common scheme, inflicted a financial injury upon Plaintiffs in an amount to be proven at trial, but which amount is at least the sum of $431.60

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THIRD INDIVIDUAL CAUSE OF ACTION (Tortious Action in Concert) 21. 22. Plaintiffs reallege the allegations contained in Paragraphs 1 - 20 above. The acts and conduct of Defendant StubHub, Inc. and Defendant “John Doe Seller 1” alleged herein constitute tortious actions in concert with each other pursuant to a common design. The Defendants, and Defendant StubHub, Inc. in particular, have, or should have but recklessly or wilfully disregarded, substantial knowledge about the anti-scalping laws 8

of the State of North Carolina, and awareness that selling the tickets described herein at a price substantially in excess of their face value constitutes a violation of N.C.G.S. § 14-344, yet Defendant StubHub, Inc. continued to provide Defendant “John Doe Seller 1” substantial assistance and encouragement to participate and profit from the sale of said tickets to Plaintiffs in violation of N.C.G.S. § 14-344. Defendant StubHub, Inc.‟s own conduct, in offering to sell and selling and/or facilitating and participating in the sale of said tickets, constitutes a breach of its duty to Plaintiffs in that it knowingly violated the laws of the State of North Carolina. 23. Plaintiffs have been damaged by Defendant StubHub, Inc.‟s tortious actions in concert with Defendant “John Doe Seller 1” and its aiding and abetting of Defendant “John Doe Seller 1's” violations of N.C.G.S. § 14344 in an amount to be proven at trial, but which amount is at least the sum of $431.60.

FOURTH INDIVIDUAL CAUSE OF ACTION (Violations of N.C.G.S. § 75-1.1) 24. 25. Plaintiffs reallege the allegations contained in Paragraphs 1 -23 above. The acts and conduct of Defendant StubHub, Inc. and Defendant “John Doe Seller 1" alleged herein constitute acts and conduct in and affecting commerce and Defendants‟ intentional, knowing, and purposeful violations of N.C.G.S. § 14-344, among other conduct alleged herein, constitute unfair and deceptive trade practices that are substantially injurious to consumers, including Plaintiffs. Plaintiffs have been damaged by the Defendants‟ violations of N.C.G.S. § 75-1.1 in an amount to be proven at trial, but which amount is at least the sum of $431.60.

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FIFTH INDIVIDUAL CAUSE OF ACTION (Punitive Damages) 27. 28. Plaintiffs reallege the allegations contained in Paragraphs 1 - 26 above. The acts of Defendant StubHub, Inc. and Defendant “John Doe Seller 1" alleged herein constitute willful and wanton and malicious conduct and intentional violations of North Carolina law done and perpetrated by Defendants solely for financial benefit and to the willful, intentional and purposefully unlawful detriment of Plaintiffs. 9

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Defendants are therefore liable to Plaintiffs for punitive damages in an amount to be proven at trial, but which amount exceeds the sum of $10,000.00. CLASS ACTION CLAIMS AND PETITION FOR CERTIFICATION OF CLASS ACTION

30.

Plaintiffs reallege the allegations contained in Paragraphs 1 - 29 above.

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Plaintiffs are informed and believe, and therefore allege, that Defendant StubHub, Inc. in this State systematically, purposefully, and continuously sold and/or offered to sell tickets, participated in a civil conspiracy with Defendants “John Doe Seller 2, et. al”, and tortiously acted in concert with Defendants “John Doe Seller 2, et. al.” to sell tickets to events at venues within the State of North Carolina to North Carolina residents in wilful and intentional violation of N.C.G.S.§ 14-344, which conduct further violates N.C.G.S. § 75-1.1. Such conduct continued for a considerable amount of time prior to September 15, 2007, and for up to four years prior to the date of Plaintiffs‟ filing of this civil action, and Defendants have intentionally and unlawfully profited from selling, aiding, encouraging, and making possible the sale of tickets to large numbers of North Carolina citizens, residents or persons otherwise in the State, potentially in excess of one thousand (1000) persons, in violation of N.C.G.S. § 14-344, in connection with their ticket purchases from Defendants for many concerts, sporting events and other events and at numerous venues throughout the State of North Carolina, the full extent of which is presently unknown to Plaintiffs.

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Pursuant to Rule 23, Rules of Civil Procedure, Plaintiffs respectfully petition the Court for an order certifying and conducting the instant civil action as a class action for the purpose of redressing common losses and damages sustained by North Carolina citizens, residents and all other appropriate parties as a result of the illegal conduct of Defendant StubHub, Inc. and Defendants “John Doe Sellers 2, et. al” as alleged herein. In support of Plaintiffs‟ petition, Plaintiffs respectfully show unto the Court as follows: a. Plaintiffs are informed and believe, and therefore allege, that a class exists under Rule 23 in that all class members have an 10

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interest in the same issues of law and fact in that all class members were wilfully and intentionally denied fair and equal access to tickets at face value, in violation of N.C.G.S. § 14-344, in connection with their ticket purchases from Defendant StubHub, Inc. and Defendants “John Doe Sellers 2, et. al” for many concerts, sporting events and other events and at numerous venues throughout the State of North Carolina, said common issues predominating over any issues affecting only individual class members; b. The proposed class consists of all North Carolina citizens, residents and all other appropriate persons who, at any time during the four (4) year period of time immediately preceding the date of Plaintiffs‟ filing of this civil action, were „scalped‟ by Defendant StubHub, Inc. and its joint conduct with Defendants “John Doe Sellers 2, et. al” and thereby sustained monetary losses and were damaged by the Defendants‟ wilful and intentional violations of § 14-344 in connection with their ticket purchases from Defendant StubHub, Inc. and Defendants “John Doe Sellers 2, et. al” for concerts, sporting events, and other events at numerous venues throughout the State of North Carolina; Plaintiffs as named representatives will fairly and adequately represent the interests of all members of the class; There are no known conflicts of interest between the named representatives and members of the class; Plaintiffs, as named representatives, have a genuine personal interest in this matter, and not a technical interest, and in the outcome of this civil action; Plaintiffs, as named representatives, will adequately represent any class members outside the State of North Carolina; Plaintiffs are informed and believe, and therefore allege, that the class members as identified herein are so numerous that it is impractical to bring them all before the Court; and Adequate notice shall be given to all members of the class upon certification by the Court and upon identification of class members.

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FIRST CLASS ACTION CAUSE OF ACTION (Violations of N.C.G.S.§ 14-344) 11

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Plaintiffs reallege the allegations contained in Paragraphs 1 - 33 above. N.C.G.S. § 14-344 makes it unlawful for anyone to sell to Plaintiffs and class members the tickets identified herein for a sum greater than the combined face value of the tickets, tax, and a service fee not to exceed $3.00 per ticket. By their sale, offer to sell, and facilitation of and participation in the sale to Plaintiffs and the class members of such tickets and at such price and other charges alleged herein, including Defendant StubHub‟s commission, Defendant StubHub, Inc. and Defendants “John Doe Sellers 2, et. al” have wilfully and purposefully violated N.C.G.S. § 14-344 as to Plaintiffs and the members of the class. Plaintiffs and the members of the class have been „scalped‟ by Defendants StubHub, Inc. and “John Doe Sellers 2, et. al” and damaged by the Defendants‟ violations of N.C.G.S. § 14-344 in amounts to be proven at trial. Plaintiffs are informed and believe that Defendant StubHub, Inc. maintains and possesses business, electronic and/or computer records of the offending unlawful transactions alleged herein such that the identities and locations of class members and their damages and the identities and locations of Defendants “John Doe Sellers” may easily be determined by the Court. SECOND CLASS ACTION CAUSE OF ACTION (Civil Conspiracy to Violate N.C.G.S. § 14-344)

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Plaintiffs reallege the allegations contained in Paragraphs 1-38 above. Defendant StubHub, Inc. and the individual Defendant “John Doe Sellers” shared an agreement, either express or implied, to sell tickets to Plaintiffs and the members of the class, for events at venues in the State of North Carolina at prices significantly higher than face value in violation of N.C.G.S. § 14-344. Defendant StubHub, Inc., through its agreement with Defendants “John Doe Sellers 2, et. al” and pursuant to a common scheme, inflicted a financial injury upon Plaintiffs and the members of the class in amounts to be proven at trial. Plaintiffs are informed and believe that Defendant StubHub, Inc. maintains and possesses business, electronic, and/or computer records of the offending unlawful transactions alleged herein such that the identities and locations of class members and their damages and the identities and 12

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locations of the Defendant “John Doe Sellers” may easily be determined by the Court.

THIRD CLASS ACTION CAUSE OF ACTION (Tortious Action in Concert) 42. 43. Plaintiffs reallege the allegations contained in Paragraphs 1 - 41 above. The acts and conduct of Defendant StubHub, Inc. and Defendants “John Doe Sellers 2, et. al” alleged herein constitute tortious actions in concert with each other pursuant to a common design. The Defendants, and Defendant StubHub, Inc. in particular, have substantial knowledge about the anti-scalping laws of the State of North Carolina, and awareness that selling the tickets described herein at a price substantially in excess of their face value constitutes a violation of N.C.G.S. § 14-344, yet Defendant StubHub, Inc. continued to provide Defendants “John Doe Sellers 2, et. al” with substantial assistance and encouragement to participate and profit from the sale of said tickets to Plaintiffs and class members in violation of N.C.G.S. § 14-344. Defendant StubHub, Inc.‟s own conduct, in offering to sell and facilitating and participating in the sale of said tickets, constitutes a breach of its duty to Plaintiffs and class members in that it knowingly violated the laws of the State of North Carolina. Plaintiffs and members of the class have been damaged by Defendant StubHub, Inc.‟s tortious actions in concert with Defendants “John Doe Sellers 2, et. al” and its aiding and abetting of Defendant “John Doe Sellers 2 et. al's” violations of N.C.G.S. § 14-344 in amounts to be proven at trial.

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FOURTH CLASS ACTION CAUSE OF ACTION (Violations of N.C.G.S. § 75-1.1)

45. 46.

Plaintiffs reallege the allegations contained in Paragraphs 1 - 44 above. The acts and conduct of Defendant StubHub, Inc. and Defendants “John Doe Sellers 2, et. al” alleged herein constitute acts and conduct in and affecting commerce and the Defendants‟ intentional, knowing, and purposeful violations of N.C.G.S. § 14-344, among their other conduct alleged herein, constitutes unfair and deceptive trade practices that are 13

substantially injurious to consumers, including Plaintiffs and members of the class. 47. Plaintiffs and the class members have been damaged by the Defendants‟ violations of N.C.G.S. § 75-1.1 in amounts to be proven at trial. Plaintiffs are informed and believe that Defendant StubHub, Inc. maintains and possesses business, electronic, and/or computer records of the offending unlawful transactions alleged herein such that the identities and locations of class members and their damages may easily be determined by the Court. FIFTH CLASS ACTION CAUSE OF ACTION (Punitive Damages) 49. 50. Plaintiffs reallege the allegations contained in Paragraphs 1 - 48 above. The acts of Defendant StubHub, Inc. and Defendants “John Doe Sellers 2, et. al” alleged herein constitute willful and wanton and malicious conduct and intentional violations of North Carolina law done and perpetrated by the Defendants solely for financial benefit and to the willful, intentional and purposefully unlawful detriment of Plaintiffs and members of the class. By selling, offering to sell, and facilitating and participating in the sale of the tickets identified herein to Plaintiffs and the class members for the unlawful prices alleged herein, the Defendants have wilfully and purposefully violated N.C.G.S. § 14-344, said acts being willful, intentional and malicious acts towards Plaintiffs and the members of the class. Said conduct has been condoned by, perpetrated by and ratified by the officers, directors, and managers of Defendant StubHub, Inc. Defendant Stub Hub, Inc. and Defendants “John Doe Sellers 2, et. al” are therefore liable to Plaintiffs and the class members for punitive damages in an amount to be proven at trial, but which amount exceeds the sum of $10,000.00.

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WHEREFORE, it is prayed that Plaintiffs JEFFREY A. and LISA S. HILL, individually and on behalf of all others similarly situated, have and recover of Defendant STUBHUB, INC. d/b/a “StubHub!” and/or “stubhub.com,” Defendant “John Doe Seller 1" and Defendants “John Doe Sellers 2, et. al.” all damages incurred, or to be incurred, compensatory, treble and punitive, in excess of Ten Thousand Dollars ($10,000.00), with interest from the date this suit was instituted, costs, attorneys‟ fees and all other appropriate relief; and

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IT IS FURTHER PRAYED that the Court certify the instant civil action as a Class Action under Rule 23, Rules of Civil Procedure, and enter all appropriate orders, for discovery and otherwise, consistent therewith; and IT IS FURTHER PRAYED that the Court enter its order restraining and enjoining Defendants from further violations of N.C.G.S. § 14-344. A JURY TRIAL IS DEMANDED AS TO ALL ISSUES TRIABLE TO A JURY.

/s/Jeffrey K. Peraldo Jeffrey K. Peraldo Attorney for Plaintiff

/s/Kara W. Edmunds Kara W. Edmunds Attorney for Plaintiff

FOR THE FIRM: JEFFREY K. PERALDO, PA 500-D State Street Greensboro, NC 27405 (336)458-0058 (telephone) (336)458-0117 (facsimile)

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing First Amended Complaint and Jury Demand (Class Action) was served upon all counsel of record via electronic mail as follows: John H. Culver, III Kennedy Covington Lobdell & Hickman, LLP Hearst Tower, 47th Floor 214 North Tryon Street Charlotte, NC 28202 jculver@kennedycovington.com Michael G. Rhodes Whitty Somvichian Benjamin F. Champam Cooley Godward Kronish LLP 4401 Eastgate Mall San Diego, CA 92121-1909 rhodesmg@cooley.com

This the 7th day of March, 2008.

/s/Kara W. Edmunds Kara W. Edmunds Attorney for Plaintiffs FOR THE FIRM: Law Offices of Jeffrey K. Peraldo, PA 500-D State Street Greensboro, NC 27405 (336)458-0058

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