Live Nation antitrust lawsuit thrown out because buyers waived right to sue

NME

An antitrust lawsuit that was filed against Live Nation and Ticketmaster has been thrown out by a federal appeals court after it was ruled that buyers had waived their right to sue.

A class action lawsuit was filed on behalf of “hundreds of thousands, if not millions”, of customers in April 2020, claiming that Live Nation was a “monster [that] must be stopped”.

The complaint claimed that the company’s anticompetitive scheme had been “wildly successful” and “threatens to put nearly all ticketing services for major concert venues (primary and secondary) in the United States under Ticketmaster’s monopolistic thumb”.

A lower court had already dropped the lawsuit on the grounds that customers agreed to settle disputes in arbitration, but it was re-opened by a federal appeals court after plaintiffs argued that they were being misled because the arbitration agreement was not clear.

After the appeal was heard by the US Ninth Circuit court, Judge Danny J. Boggs wrote: “At three independent stages – when creating an account, signing into an account, and completing a purchase – Ticketmaster and Live Nation webpage users are presented with a confirmation button above which text informs the user that, by clicking on this button, ‘you agree to our Terms of Use’.

“A reasonable user would have seen the notice and been able to locate the terms via hyperlink.”

He continued: “Appellees’ notice is conspicuously displayed directly above or below the action button at each of three independent stages that a user must complete before purchasing tickets. Crucially, the ‘Terms of Use’ hyperlink is conspicuously distinguished from the surrounding text in bright blue font, making its presence readily apparent.”

Ticketmaster, which Live Nation became a part of in a 2010 merger, is currently the focus of controversy after the well-publicised issues surrounding the ticket sale for Taylor Swift’s upcoming Eras tour. When tickets went on sale in November, thousands of fans reported lengthy wait times, website outages and hyper-inflated prices on resale sites, including Ticketmaster’s own.

Swift’s fans later filed a class action lawsuit against the company, with plaintiffs accusing the company of violating two laws – the California Cartwright Act and the California Unfair Competition Law – during the first Verified Fan pre-sale. Ahead of a Senate-backed antitrust panel in January, Live Nation president Joe Berchtold blamed cyber attacks for the issues.

“We knew bots would attack… and planned accordingly,” he said. “We were then hit with three times the amount of bot traffic than we had ever experienced, and for the first time in 400 Verified Fan onsales, they came after our Verified Fan access code servers.

“While the bots failed to penetrate our systems or acquire any tickets, the attack required us to slow down and even pause our sales. This is what led to a terrible consumer experience that we deeply regret.”

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