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Ticket-buyers try to prove Ticketmaster terms are non-binding

By | Published on Monday 29 June 2020


Two ticket-buyers who are suing Ticketmaster and its owner Live Nation over allegations of anti-competitive conduct have asked the court to allow them to gather evidence in a bid to counter the ticketing firm’s claim that they are obliged to take their case to arbitration. That basically means demonstrating that the ticketing company’s website terms are not binding because they are deliberately hidden and that’s why nobody ever reads them.

Ticketmaster has argued before that ticket-buyers are obliged to take any grievances to an arbitrator of the Live Nation company’s choosing before going to a court of law, because of the terms and conditions those ticket-buyers sign up to when purchasing a ticket. For example, that argument was presented last year in two separate cases over Ticketmaster’s involvement in secondary ticketing.

In this latest case, Olivia Van Iderstine and Mitch Oberstein accuse Ticketmaster and Live Nation of abusing their market dominance to charge “extraordinarily high fees” for tickets. Told by the ticketing firm that they are obliged to take the matter to arbitration, the duo’s lawyers are now trying to demonstrate why the terms on Ticketmaster’s website are not binding.

According to The Hollywood Reporter, the lawyer repping the ticket-buyers, Frederick Lorig, says: “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”.

Van Iderstine and Oberstein are now asking that the courts compel Ticketmaster to hand over data relating to their website and app. Basically so that they can compare how many times people signed into the ticketing firm’s platform with how many times people actually clicked to view the company’s terms and conditions.

Lorig goes 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”.

It remains to be seen if the court forces the data handover. Although, if it can be shown that – by obscuring terms and conditions on a website in any way – those terms no longer apply, well, that could have ramifications well beyond Ticketmaster.

That said, this isn’t the first time the question of how binding never-read website terms are has come up in the US courts, so presumably Live Nation’s lawyers are now busy looking for the precedent that ensures the company’s terms remain in force.