Page 1
Ninth Circuit:
Dispute Over Ticketmaster Prices Must Be Arbitrated
Panel Says User Is Adequately Put on Notice of Terms of Use, Which Include Arbitration Agreement
By a MetNews Staff Writer
|
Above is the sign-in/sign-up page on the Ticketmaster website. It says, “By continuing past this page, you agree to the {termsOfUse}….” The Ninth U.S. Circuit Court of Appeals held yesterday that users are adequately put on notice at that point and others that there are terms of use and that an arbitration agreement contained in the terms is enforceable.
|
The Ninth U.S. Circuit Court of Appeals yesterday affirmed an order booting a putative nationwide class action out of court on the ground that the plaintiffs, who contend they were charged supracompetitive prices for tickets purchased online, agreed to arbitrate any disputes with Ticketmaster and Live Nation.
Danny J. Boggs, a judge of the precompetitive Sixth Circuit Court of Appeals, sitting by designation, authored the opinion which affirms an order by District Court Judge George H. Wu of the Central District of California.
Plaintiff Mitch Oberstein of California and two named co-plaintiffs from other states contend that since Live Nation, which stages events, and Ticketmaster, a purveyor of tickets, merged in 2010 to form Live Nation Entertainment, Inc., a monopoly has existed resulting in excessive pricing. They maintain that they have never seen the “terms of use” on the Ticketmaster website requiring the submission of disputes to arbitration.
Defendants’ Arguments
However defendants Live Nation Entertainment, Inc. and Ticketmaster LLC point out that a user must affirm an awareness of the terms when creating an account, signing in, and making a ticket purchase.
Boggs observed that the terms on the Ticketmaster website are not “pure clickwrap”—which entails a user clicking on a box to expressly confirm an agreement to the terms of use—nor “pure browsewrap” where, by continuing on the website, the user is deemed to have consented to the terms.
“Rather,” he said, the Ticketmaster terms, “lie somewhere in between.”
The user is, he declared, sufficiently put on alert “to provide constructive notice of the Terms,” explaining:
Three Stages
At three independent stages—when creating an account, signing into an account, and completing a purchase—Ticketmaster and Live Nation webpage users are presented with a confirmation button above which text informs the user that, by clicking on this button, ‘you agree to our Terms of Use.’ ”
The visiting jurist went on to say:
“We agree with the district court that a reasonable user would have seen the notice and been able to locate the Terms via hyperlink. Appellees’ notice is conspicuously displayed directly above or below the action button at each of three independent stages that a user must complete before purchasing tickets.”
He rejected the contention that the terms are invalid under California law because the party with whom the user is contracting is not specified.
He wrote: “California law does not require that corporate parties to a contract use their full legal names. California law requires only that it be possible for a reasonable user to identify the parties to the contract.”
Boggs cited Civil Code §1558 which says: “It is essential to the validity of a contract, not only that the parties should exist, but that it should be possible to identify them.”
He continued: “Here, the Terms’ repeated references to Appellees’ common trade names, express references to ‘Live Nation Entertainment, Inc.’ and available avenues that would enable a reasonable user to identify Ticketmaster’s full legal name more than clear that low bar.”
The case is Oberstein v. Live Nation Entertainment. Inc., 21-56200.
Copyright 2023, Metropolitan News Company