November 19, 2017

November 17, 2017

Subscribe to Latest Legal News and Analysis

November 16, 2017

Subscribe to Latest Legal News and Analysis

Marathon Organizers Face Post-Race Blues (and Class Action Complaint) after Cancelling Race without Full Refunds

Following news that the 2017 Vancouver USA Marathon in Vancouver, Washington was cancelled, marathon hopefuls who were denied the opportunity to receive a finisher's medal for all of their training may still receive a consolation prize. Registrants were notified on August 18, 2017 that the race would be canceled, just weeks before the runners were set to hit the starting line on September 17. Runners also were told that they would not receive full refunds of their registration fees.  Instead of starting his cooldown early, Cory Bradley, a registered participant for the race, filed a putative class action suit the day after the announcement on behalf of all registrants (Bradley v. Energy Events LLC, No. 17-01291 (D. Or. Amended Complaint filed Aug. 28, 2017)).  The complaint alleged, among other things, that Energy Events LLC ("Energy Events") and its sole owner and operator, Brian Davis, intentionally misled consumers by promoting advertising materials promising a fun, run-filled weekend in exchange for their registration fees, even as the race organizers knew that they would never be able to fulfill such a promise.

The Vancouver USA Marathon has been an organized event hosted by Energy Events LLC since 2010, featuring a range of events and distances, including full and half-marathon courses, and a three-day beer festival, which attract around 3,000 participants every year. The events have been held along the Columbia River and historic parks and sights of Vancouver, Washington.

One of the reasons for this year's low registration and cancellation may have been related to a snafu that chafed many prior competitors. In the race's sixth year, runners may have noticed that they set a new PR (or "personal record"). Unfortunately, this may have been because the 2016 Vancouver USA Marathon course was 1,126 feet short of a full-marathon distance course.  In practical terms, this meant that the race did not count towards qualification for other more well-known marathons, such as the Boston Marathon. 

Each year, thousands of marathon racers dream of qualifying for the Boston Marathon by satisfying the course's infamous qualifying times based on age and sex. As the Boston Athletic Association notes on its website, only "certified full-marathon distance [courses] will be accepted for qualifying." Three months after runners crossed the finish line of the 2016 Vancouver USA Marathon, many runners were told by Boston Marathon organizers that their finishing times would not count towards qualification. And if a runner hadn't completed another marathon within the one-year window that ended that September, there was now no way for them to qualify for the 2017 Boston Marathon.  Moreover, runners looking to complete their first marathon may have been left feeling as if they still hadn't really achieved that goal; those who wanted to add another marathon medal to their collection left the course without any runner's high, and not surprisingly, many asked for refunds, perhaps because a "25.9867424" sticker just doesn't look as impressive on the back window of a car as a "26.2" sticker.  Runners were not granted refunds, but instead were offered free registration for the 2017 Vancouver USA Marathon.

Of course, the 2017 Vancouver USA Marathon never happened.  Race organizers cited low pre-race registration numbers and a review of their finances as the cause of cancelation, and communicated that they planned only to issue partial refunds to those who had registered because much of the funds had already been used for "marketing, deposits and operational overhead." This left many racers "rungry" for retribution, including our plaintiff, Cory Bradley. Bradley filed suit against Energy Events the very next day claiming that the defendants' marathon was "materially under-funded" and "similar to a Ponzi scheme."

The complaint alleges that Energy Events's advertisements, which stated that runners who paid the registration fee could race in the 2017 events, were intentionally misleading. Energy Events allegedly failed to disclose that the distance blunder of 2016 had damaged the credibility of the event so much that they knew pre-race registration numbers would be low, and that the event would be underfunded. The complaint further alleges that these facts were known at the time registration became "live," and Energy Events knew or should have known that they could not provide their promised race services. The plaintiff claimed that these facts were material to determining whether or not to register for the 2017 Vancouver USA Marathon events in response to the advertisements. As a result, the complaint asserts claims under the Oregon consumer protection statute, based upon the defendant's alleged unlawful trade practices and false marketing representations. The plaintiffs seek various forms of relief, including actual, statutory and punitive damages, interest and reimbursement of fees and costs, which the complaint argues resulted from the hastily canceled event and the lack of full refunds issued to registrants.

It remains to be seen whether this litigation will be successful in reaching the finish line, or whether it will hit the wall before mile 20. It's also unclear if the runners will ever win a recoverable judgment—the complaint notes that defendant and sole operator of Energy Events recently filed for personal Chapter 7 bankruptcy. Whatever happens, whether continued litigation or future runs, the plaintiffs have a long road ahead of them and should be sure to pack their endurance chews.

© 2017 Proskauer Rose LLP.

TRENDING LEGAL ANALYSIS


About this Author

L. Robert Batterman, Labor, Management, Sports, Attorney, Proskauer, Law Firm
Partner

A partner since 1974, Bob Batterman has considerable experience representing both individual employers and multi-employer groups in union relations and collective bargaining. Much of Bob’s time is spent in day-to-day contact with clients, often in “crisis” situations where a rapid resolution of union-related problems is vital.

Bob is a senior member of our nationally recognized Sports Law Group, serving as labor counsel to the National Hockey League, Major League Soccer and the National Football League. He has extensive experience in collective bargaining and related litigation in...

212-969-3010
Michael Cardozo, Commercial Litigation Attorney, Proskauer, Law Firm
Partner

Michael A. Cardozo is a Partner in Proskauer’s Litigation Department and the former Corporation Counsel for the City of New York. As the city's 77th and longest serving Corporation Counsel, he was the city’s chief legal officer, headed the city's Law Department of more than 700 lawyers, and served from 2002 through 2013 as legal counsel to Mayor Michael Bloomberg, elected officials, the city and its agencies.

Michael’s experience managing large litigations in both the private and public sectors provides him with unique insight into litigation assessments, risk management and mitigation issues. In his role as head of the New York City Law Department, he effected numerous changes that resulted in significantly increased efficiency. He achieved this by greatly expanding the use of technology and statistical data allowing for effective risk/cost analysis of cases.

212-969-3230
Robert L. Freeman, Technology, Media, Sports, Attorney, Proskauer, Law Firm
Partner

Robert E. Freeman is a Partner in the Corporate Department and a member of the Sports Law Group and Technology, Media & Communications Group.

Rob began his career as an intellectual property litigator before shifting the focus of his practice to intellectual property-related transactions. Today, he helps lead a team of media, sports and entertainment attorneys representing clients such as Time Warner Cable, Discovery Communications, the WTA, the Orlando Magic, Scripps Networks, Armstrong Cable, the PAC-12, Insight Communications and CBS Sports. Rob’s work for these clients...

212-969-3170
Howard Ganz, Sports, Employment Attorney, Proskauer, Law Firm
Partner

Howard Ganz is co-head of the Sports Law Group and former co-Chair of the Labor & Employment Law Department.

Howard represents and counsels clients with respect to a wide variety of labor and employment matters, such as employment discrimination, sexual harassment, wrongful discharge, defamation, breach of contract, discipline, and large-scale reductions-in-force. His litigation experience has run the gamut, from single plaintiff lawsuits to major class actions, in federal and state courts in New York and elsewhere. The clients Howard has represented include the National...

212-969-3035
Wayne D. Katz, Finance, Sports, Attorney, Proskauer, Law Firm
Partner

Wayne D. Katz is a Partner in the Corporate Department, specializing in the sports industry.

Wayne's experience includes the representation of the National Basketball Association and National Hockey League in their various corporate matters, including team ownership transfers and team financings. Major transactions he has worked on for the leagues include the NBA’s purchase and sale of the New Orleans Hornets; the NBA's grant of expansion franchises to Toronto, Vancouver and Charlotte; the NHL's grant of expansion franchises to Nashville, Atlanta, Columbus and Minnesota; the NBA’s $...

212-969-3071