Live Nation is asking the U.S. Supreme Court to overturn a ruling last year that said the concert giant couldn’t enforce “opaque and unfair” arbitration agreements against ticketbuyers, warning the justices that the scathing ruling “creates massive uncertainty.”
The decision, issued in October by a lower court, said the contracts Live Nation had forced concertgoers to sign – requiring them to resolve disputes via private arbitration — were “so dense, convoluted and internally contradictory” that they were “borderline unintelligible.”
But in a petition to the Supreme Court this week, Live Nation says that the decision must be reversed, warning it would have “far-reaching consequences” for how arbitration works and could potentially cause massive headaches for companies that have long relied on such agreements.
“If allowed to stand, the decision below will enable mass arbitration plaintiffs to continue their abusive strategy of racking up procedural costs to the point of forcing the defendant to capitulate to a settlement, rather than proving their allegations,” Live Nation’s lawyers write. “These highly disruptive consequences reinforce the need for review.”
The appeal to the Supreme Court comes in a class-action lawsuit accusing Live Nation of violating federal antitrust laws by monopolizing the market for concert tickets and engaging in “predatory” behavior. Filed in 2022 on behalf of “hundreds of thousands if not millions” of ticket buyers, the case claims Live Nation and Ticketmaster abused their dominance to charge “extraordinarily high” prices to consumers.
Faced with those allegations, Live Nation argued that fans had waived their right to sue in court when they bought their tickets because they had signed arbitration agreements — a common requirement when purchasing tickets and other services from many companies.
In rejecting that argument in October, the U.S. Court of Appeals for the Ninth Circuit ruled that Live Nation’s agreements were “unconscionable and unenforceable” since they would make it “impossible” for fans to fairly pursue claims against the company.
“Forced to accept terms that can be changed without notice, a plaintiff then must arbitrate under … opaque and unfair rules,” the appeals court wrote at the time. “The rules and the terms are so overly harsh or one-sided as to unequivocally represent a systematic effort to impose arbitration as an inferior forum.”
The ruling described Live Nation’s agreements in scathing terms, calling them “so dense, convoluted and internally contradictory to be borderline unintelligible” and “poorly drafted and riddled with typos.” The terms were so confusing, the court said, that Live Nation’s own attorneys had “struggled to explain the rules” during a court hearing.
The criticism centered on Live Nation’s decision to alter its terms of use to require fans to submit to “novel and unusual” procedures for “mass arbitration.” That new process, offered by an upstart arbitration firm called New Era ADR, was aimed at handling many cases at once rather than individually, which Live Nation believed was necessitated by aggressive tactics from lawyers representing huge numbers of concertgoers.
But in rejecting that new process, the Ninth Circuit said Live Nation was essentially trying to have its cake and eat it too: “Defendants sought to gain in arbitration some of the advantages of class-wide litigation while suffering few of its disadvantages.”
In this week’s petition to the Supreme Court, it was Live Nation’s turn to level criticism – calling the Ninth Circuit’s ruling a “deeply flawed decision” that exemplified the kind of “judicial hostility” to private arbitration that’s prohibited under federal law.
“The Ninth Circuit’s decision below flouts [federal arbitration law], defies this court’s precedents, and threatens to block sensible measures for addressing the new phenomenon of mass arbitration filings,” the company’s lawyers write.
The plaintiffs in the case will file a response in the weeks ahead, and the justices will decide whether to take the case at some point in the next few months. Reps for both sides did not immediately return requests for comment.
