<i>Decision of Note:</i> Live Nation Can't Force Arbitration over Online Ticketing Site

Agreeing to arbitration was supposed to be as easy as clicking a button, but Live Nation was unable to show that a man seeking to sue the company actually clicked any of the buttons indicating his consent to arbitrate.

Federal District Judge Mark R. Hornak of the Western District of Pennsylvania denied the global entertainment company's efforts to compel arbitration, finding instead that the live events company failed to prove that plaintiff John Egan visited any of the company's Web pages where he would have agreed to arbitration.

According to District Judge Hornak's opinion in Egan v. Live Nation Worldwide Inc., 2:17-cv-445, Egan sought to buy presale Counting Crows tickets online for wheelchair-accessible seats, but was allegedly told Live Nation does not make wheelchair-accessible seats available for presale purchase.

Live Nation contended that Egan should have passed through at least one of several web pages that would have required him to click a button accepting arbitration. But because Egan allegedly accessed the company's web pages through Facebook, rather than its usual home page, and never ended up buying the tickets, the company was unable to prove that Egan actually agreed to arbitration.

“Defendant asserted during oral argument that the court could presume that after plaintiff arrived at Ticketmaster's website through the link on the Counting Crows Facebook page, he would have had to click something to receive the message, 'Sorry we don't have any accessible seating available at the moment,''' Judge Hornak wrote. “But defendant has not demonstrated that plaintiff necessarily clicked anything.”

According to the judge, Egan twice attempted to buy presale tickets in March 2017, several days before the tickets were to go on sale to the general public. Each time he tried, however, Egan received a message saying there were no wheelchair-accessible tickets available at that time. Egan contended he was later told on the phone that Live Nation does not sell wheelchair-accessible tickets during presales.

After Egan sued under the Americans with Disabilities Act, Live Nation, which merged with Ticketmaster in 2010, sought to move the case to arbitration. According to Judge Hornak, Live Nation contended that Egan previously bought tickets in 2012 and so he must have agreed to the terms of use at that point.

Live Nation further contended that, to get to the page telling him the tickets were not available, Egan would have had to agree to the terms of use, because several preceding pages would have said, “By continuing past this page, you agree to our terms of use.” Live Nation produced screenshots of several web pages containing the terms of use, including the “Create Account” page, and the “Account Sign-In” page.

The district judge, however, determined the language in the 2012 ticket purchase agreement could not be applied to the 2017 ticket purchase, and added that doing so would also raise reasonableness and conscionability questions.

In addition, Live Nation failed to show Egan actually navigated past any of the pages that outlined the terms of use. “Although [Live Nation employee] David Han's declaration states that 'virtually all' pages include the terms of use disclosure, virtually all does not mean all, and the court has no record evidence to conclude that the disclosure was necessarily present on this page when plaintiff viewed it,” Judge Hornak noted.

Eve Hill of Brown, Goldstein & Levy, who represented Egan, said the case was “symptomatic of the profusion of arbitration clauses” and showed that Live Nation was “overstepping” the goals of arbitration clauses. “People no longer have any real ability to opt out of arbitration,” she said. “I hope this calls into question to enforceability of arbitration clauses that simply say, if you look at this page, basically, you're bound by the terms and conditions.”

Gregory Hurley of Sheppard, Mullin, Richter & Hampton, who represented Live Nation, did not return a call seeking comment.

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Max Mitchell is a reporter for The Legal Intelligencer, the Philadelphia-based ALM sibling publication of Entertainment Law & Finance.