The US Court of Appeals for the Ninth Circuit ruled for the ticketing giant, saying the company is entitled to arbitrate claims that it gouged customers on fees after its merger with Ticketmaster LLC by leveraging its monopoly to gain a stranglehold over the ticket resale market.
The ruling hands Live Nation a victory as it faces an onslaught of bad press and renewed questions—including from lawmakers—over the 2010 business combination, which created an entertainment industry behemoth. The transaction secured antitrust clearance from the Justice Department.
The government signed off on the merger again in 2019, extending approval until 2025 as part of a deal resolving allegations that the company worked to undermine competition. The DOJ’s antitrust chief boasted that the settlement reflected the agency’s “most significant enforcement action” in decades.
The Ninth Circuit on Monday avoided grappling directly with the substance of the consumer litigation. The lawsuit accuses the company of offering concert promotion services at a loss, tying them to its ticket business, and imposing a bevy of resale restrictions.
Judge Danny J. Boggs, writing for the court, said the arbitration clause was prominently enough displayed on Live Nation’s websites for a reasonable user to have noticed it. Customers can’t complete a purchase or access the platform’s core features without seeing the links, he noted.
“The notices were not buried on the bottom of the webpage or placed outside the action box, but rather were located directly on top of or below each action button,” Boggs wrote.
The appeals court also rejected the argument that the arbitration agreement failed to properly identify Live Nation or Ticketmaster as a party. The provision repeatedly referred to both companies by their common trade names, and it used Live Nation’s full legal name at least once, Boggs said.
The customers “effectively ask this court to impose a requirement that parties to an arbitration agreement identify themselves in the contractual document by their full legal names,” he wrote. “However, they fail to produce any authority, mandatory or persuasive, demanding as much.”
Judges Sandra S. Ikuta and Kim McLane Wardlaw joined the ruling, which affirmed a decision by George H. Wu of the US District Court for the Central District of California. Boggs is a Sixth Circuit judge who sat on the panel by designation.
Live Nation is represented by Latham & Watkins LLP. Quinn Emanuel Urquhart & Sullivan LLP, Keller Postman LLC, and Frederick Lorig APC are counsel for the consumers.
The case is Oberstein v. Live Nation Ent. Inc., 9th Cir., No. 21-56200, 2/13/23.
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