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.
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.
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.
Max Mitchell is a reporter for The Legal Intelligencer, the Philadelphia-based ALM sibling publication of Entertainment Law & Finance.
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.