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Live Nation hits back at legal claim seeking access to Ticketmaster website data

By | Published on Tuesday 14 July 2020

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Live Nation has hit back at efforts by aggrieved ticket-buyers to access usage data from its ticketing websites arguing that said efforts are an irrelevant “fishing expedition”. In the legal sense of course. No one – and we can’t stress this enough – is accusing anyone of planning a sea adventure in a bid to demonstrate Live Nation and its Ticketmaster subsidiary abuse their market dominance. Though that does sound like more fun.

This all relates to a lawsuit filed by ticket-buyers Olivia Van Iderstine and Mitch Oberstein who accuse Live Nation and Ticketmaster of abusing their market dominance to charge “extraordinarily high fees” whenever people buy tickets for events. You know, back in those long-forgotten days when there were events.

Live Nation’s first response to the lawsuit was that Van Iderstine and Oberstein had both agreed to the live music giant’s terms and conditions when buying their respective tickets, and that those terms clearly state that any future grievances must be pursued through an arbitration process rather than a court of law. Therefore Van Iderstine and Oberstein should take their complaint to Live Nation’s chosen arbitrator, not the US District Court of California.

The duo of ticket-buyers are currently trying to avoid having to go the arbitration route by arguing that Live Nation buries things like the arbitration obligation on its ticketing websites in the middle of a load of hard-to-find tedious legalese, and therefore that obligation should not be binding.

Is was as part of that argument that Van Iderstine and Oberstein recently asked the courts to force Live Nation to share a load of data relating to its and websites. The plaintiffs want to show that no one ever clicks on Live Nation’s terms and conditions, presumably to suggest that the live music company and its ticketing division deliberately try to hide all those commitments from its customers.

A lawyer working for the pair told The Hollywood Reporter last month: “As they have in other cases, defendants argue that plaintiffs agreed to arbitration clauses that are buried in terms of use on [the Ticketmaster and Live Nation websites] and the Ticketmaster mobile application. The terms of use are presented to users in a ‘browsewrap’-type format that does not affirmatively require consumers to read the terms, or indicate they have read them, before making a purchase”.

He went on: “Plaintiffs intend to show on opposition that [the Ticketmaster and Live Nation websites] are designed in a way to actively dissuade consumers from knowing or understanding that the terms of use are something they can or should read. If it turns out that, as plaintiffs suspect, the vast majority of users do not view the terms of use, that would tend to show that the website and app provide insufficient notice of the terms of use, and thus the arbitration agreement contained in it”.

But Van Iderstine and Oberstein can just fuck off with their discovery motion bid to access a load of web traffic data from Live Nation, the live firm has now unsurprisingly stated. Well, what it actually said was: “Plaintiffs’ discovery motion is a fishing expedition that has no bearing on defendants’ pending motion to compel arbitration. It should be denied”.

The live firm added that, in previous court filings in relation to this case, it “submitted detailed declarations … setting forth plaintiffs’ ticket-purchase histories and the various points in the ticket-buying process at which they agreed to the terms – including screenshots of the Ticketmaster and Live Nation websites that plaintiffs used to purchase their tickets, and the terms of use that they accepted when doing so”.

“Plaintiffs do not dispute any of this evidence”, it went on. “Instead, plaintiffs claim that the court cannot decide [on Live Nation’s motion to force arbitration] without additional ‘click data’ – ie the number of ‘clicks’ for each sign in to and, as well as the number of clicks on the terms of use defendants cite in their motion. But click data is irrelevant to the sole question before the court: whether Ticketmaster’s and Live Nation’s websites provided plaintiffs with constructive notice of the term”.

This is by no means the first time the forced arbitration clause and the “but nobody reads the terms!” argument have come up in disputes between ticket-buyers and Live Nation. The same arguments were made in two relatively recent lawsuits relating to Live Nation’s secondary ticketing operations in the US. Which is something Live Nation was keen to stress in its latest legal filing, because in both those cases the court rejected the “but nobody reads the terms!” line and forced arbitration.

The new legal filing says that in the case Lee v Ticketmaster, the Ninth Circuit court very recently confirmed “the blackletter principle” that Live Nation’s arbitration clause stands. “In affirming arbitration based on the same Ticketmaster website that is at issue here”, it said, “the Ninth Circuit reaffirmed that a plaintiff ‘cannot avoid the terms of [the] contract on the ground that he … failed to read it before signing, especially when he had a legitimate opportunity to review it”.

And in the case Dickey v Ticketmaster LLC, “this court reached the same conclusion and compelled arbitration based on nearly identical evidence to what is before the court here, recognising that ‘constructive notice is generally clear where the user is actually required to, and does, click a button explicitly agreeing to the terms of the contract, even if the user does not actually read the terms of service'”.

Which does seem like pretty solid precedent to back up Live Nation’s arguments here. But we’ll see if the court sides with the live music firm this time around, or whether it will consider forcing the sharing of Live Nation and Ticketmaster web traffic data to better inform the debate.