Mitch Oberstein v. Live Nation Ent'm't, Inc.
60 F.4th 505
9th Cir.2023Background
- Plaintiffs (putative class of ticket purchasers) sued Ticketmaster LLC and Live Nation Entertainment, Inc. for alleged Sherman Act anticompetitive conduct.
- Defendants moved to compel arbitration based on an arbitration clause in the websites’ Terms of Use.
- The district court found the online Terms formed a valid agreement, that users had constructive notice and manifested assent, and granted the motion to dismiss in favor of arbitration.
- Plaintiffs appealed, arguing (1) the Terms failed to identify Appellees as parties, (2) Appellees did not provide constructive notice under California and (for one plaintiff) Massachusetts law, and (3) constructive notice was a factual issue for trial.
- The Ninth Circuit reviewed de novo and affirmed: the Terms adequately identified the parties, provided reasonably conspicuous notice, users unambiguously manifested assent, and the constructive-notice question could be decided as a matter of law on the undisputed webpages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Terms properly identified Appellees as parties | Terms use common names and pronouns and thus fail to identify the corporate parties | Terms repeatedly use trade names, expressly reference “Live Nation Entertainment, Inc.”, and link to Ticketmaster LLC information | Identifying information was sufficient under California law; parties reasonably identifiable |
| Whether the Terms gave constructive notice (California standard) | The hybrid/browsewrap design was not conspicuous enough to give notice | Notices were placed directly above/below action buttons, used clear language, and included a bright-blue "Terms of Use" hyperlink | Constructive notice satisfied; notice was reasonably conspicuous and assent was unambiguous |
| Whether Massachusetts law requires a stricter standard for constructive notice (as to Burke) | Kauders allegedly sets a more demanding rule than California | Massachusetts follows the same two-part reasonableness framework (Ajemian/Specht style); results vary by facts | No meaningful difference for present facts; court need not apply a separate, stricter rule |
| Whether constructive notice was a disputed fact for trial | Plaintiffs offered testimony and expert evidence that screenshots misrepresent users’ experience, so the issue should go to trial | Webpage features (color, placement, language, repetition) are undisputed and can be resolved as a matter of law | District court properly decided constructive notice as a matter of law because the controlling webpage features were undisputed |
Key Cases Cited
- Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010 (9th Cir. 2004) (federal courts limited to deciding existence and scope of arbitration agreement under state contract law)
- Berman v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir. 2022) (two-part reasonableness test for online agreements; invalidated hybrid agreement for lack of conspicuous notice)
- Kauders v. Uber Techs. Inc., 159 N.E.3d 1033 (Mass. 2021) (Massachusetts adopts Ajemian two-part test: reasonable notice and reasonable manifestation of assent)
- Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) (clickwrap routinely enforceable; guidance on notice and assent)
- Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014) (factors for browsewrap/conspicuousness and placement of terms hyperlink)
- Specht v. Netscape Commc'ns Corp., 306 F.3d 17 (2d Cir. 2002) (notice requirement for online assent; action must be tied to clear notice)
- Bekele v. Lyft, Inc., 918 F.3d 181 (1st Cir. 2019) (context- and fact-specific inquiry; commentary on Cullinane)
- Cullinane v. Uber Techs., Inc., 893 F.3d 53 (1st Cir. 2018) (applied Ajemian framework; some courts view its application as atypical)
- Sellers v. JustAnswer LLC, 289 Cal. Rptr. 3d 1 (Cal. Ct. App. 2021) (invalidated hybrid agreement for lack of conspicuous notice)
- Flores v. Nature’s Best Distribution, LLC, 212 Cal. Rptr. 3d 284 (Ct. App. 2016) (invalidated arbitration clause where parties were referenced only by undefined generic terms)
- Oracle Am., Inc. v. Myriad Grp. A.G., 724 F.3d 1069 (9th Cir. 2013) (delegation of arbitrability to arbitrator not defeated by carve-outs)