Metropolitan News-Enterprise


Tuesday, June 16, 2020


Page 1


Ninth Circuit:

Users of Ticketmaster Website Impliedly Assent To Use-Policy, Including Arbitration Clause

Warnings Are Sufficiently Conspicuous, Opinion Says, That It Doesn’t Matter That There’s No ‘I Agree’ Box to Check


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed an order booting a case against Ticketmaster from the court system, holding that a warning on its website that, in placing an order, the purchaser becomes bound by terms of its “use-policy” is sufficient to render an arbitration provision in that policy enforceable.

In a memorandum opinion filed Friday, a three-judge panel found that District Court Judge Vince Chhabria of the Northern District of California properly granted Ticketmaster’s motion to compel arbitration and dismissed a putative class action brought by Allen Lee, a resident of Millbrae, in San Mateo County.

Lee contends that Ticketmaster violates California’s Unfair Competition Law by knowingly selling blocks of tickets to scalpers, making a profit both on the initial sales and on the resales by the scalpers.

‘Clickwrap, ‘Browsewrap’

The opinion notes that a website typically seeks assent to its terms of use though a “clickwrap” agreement, entailing clicking on a box that says “I agree,” or a “browsewrap” agreement where a link to the terms appears at the bottom of the page. It observes that “it is easier to find mutual assent in cases dealing with clickwrap agreements.”

Users of Ticketmaster’s website do not need to click on a box. However, next to a “Place Order” button, is an advisory that “continuing past this page” constitutes agreement to the terms.

One of the terms is that the user will arbitrate “[a]ny dispute or claim relating in any way ... to products or services sold or distributed by us or through us.”

Sufficient Notice

The panel—Chief Judge Sidney R. Thomas and Judges Mary M. Schroeder and Patrick J. Bumatay—declared:

“Ticketmaster’s Terms of Use do not constitute a browsewrap agreement because they are not merely posted on Ticketmaster’s website at the bottom of the screen. Although the Terms do not constitute a true pure-form clickwrap agreement as California courts have construed it (because Ticketmaster does not require users to click a separate box indicating that they agree to its Terms), Ticketmaster’s website provided sufficient notice for constructive assent, and therefore, there was a binding arbitration agreement between Lee and Ticketmaster.”

The judges continued:

“Lee validly assented to Ticketmaster’s Terms of Use, including the arbitration provision, each time he clicked the ‘Sign In’ button when signing into his Ticketmaster account, where three lines below the button, the website displayed the phrase, ‘By continuing past this page, you agree to our Terms of Use.’ ”

He also assented, they said, when clicked on the “Place Order’ button” in light of the notice: “By clicking ‘Place Order,’ you agree to our Terms of Use.”

The words “Terms of Use,” the judges noted, were in blue, and were a hyperlink to Ticketmaster’s use agreement.

Change in Terms

Lee protested that when he first started using Ticketmaster, the agreement did contain an arbitration provision, pointing to the Ninth Circuit’s 2007 opinion in Douglas v. U.S. District Court for the Central District of California which says:

“Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side.”

Friday’s opinion notes the Lee had placed orders via Ticketmaster’s website about 20 times and says:

 “…Douglas is inapposite because it considered factual circumstances in which the plaintiff assented only once to the terms of a single contract which was later modified by the opposing party without providing the plaintiff sufficient notice….By contrast, here, Lee affirmatively indicated his assent each time Ticketmaster presented him with an agreement.”

The case is Lee v. Ticketmaster, LLC, 19-15673.

Lee’s Complaint

Lee’s complaint, employing an unusual writing style, says:

“Have you ever wondered why Ticketmaster has been unable to rid itself of the scalpers who purchase mass quantities of concert or sports tickets from its website and then resell them for much more minutes later? A better question all along may have been why did Ticketmaster not want to. The answer: Ticketmaster hasn’t wanted to rid itself of scalpers because, as it turns out, they have been working with them.”

The pleading continues:

“Ticketmaster has actually facilitated the sale of tickets to the secondary market by secretly implementing a ‘Resale Partner Program’ supported by TradeDesk, which Ticketmaster acknowledges it ‘built expressly for professional resellers.’ And Ticketmaster does this in order to receive a second cut on tickets—that is even more than the original cut Ticketmaster receives.”

It explains:

“For example, if Ticketmaster collects $25.75 on a $209.50 ticket on the initial sale, when the owner posts it for resale for $400 on the site, the company stands to collect an additional $76 on the same ticket. No wonder it isn’t content to just sell each ticket once.”

The complaint seeks an injunction, class restitution, and attorney fees and costs.


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