Himber v. Live Nation Worldwide, Inc. et al
MEMORANDUM & ORDER finding as moot 58 Motion for Leave to File; granting 62 Motion to Compel; denying 68 Motion for Hearing; For the above reasons, the Court GRANTS Live Nation's motion to compel individual arbitration and to stay the action pending arbitration. The Clerk of the Court is directed to mark the November 28, 2017 Consent Motion, (Docket Entry 58), as MOOT and the February 13, 2018 Letter/Motion, (Docket Entry 68), see supra n.1), as DENIED. So Ordered by Judge Joanna Seybert on 5/21/2018. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Individually and on behalf of a class,
MEMORANDUM & ORDER
LIVE NATION WORLDWIDE, INC., and
LIVE NATION MARKETING, INC.,
Tiffany N. Hardy, Esq.
Dan Edelman, Esq.
Edelman, Combs, Latturner & Goodwin LLC
20 S. Clark Street 1500
Chicago, IL 60603
Abraham Kleinman, Esq.
626 RXR Plaza
Uniondale, NY 11556-0626
Lawrence E. Buterman, Esq.
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022-4834
Daniel M. Wall, Esq.
Latham & Watkins LLP
505 Montgomery Street
San Francisco, CA 94111
SEYBERT, District Judge:
Plaintiff David Himber (“Himber”) brings this putative
class action against defendants Live Nation Worldwide, Inc. and
Live Nation Marketing, Inc. (collectively, “Live Nation”) for
alleged violations of New York General Business Law (“GBL”) §§ 349
Live Nation moves to compel arbitration and stay this
action pending arbitration.
Himber opposes the motion.
reasons below, the motion is GRANTED.1
In response to the Complaint, Live Nation moved to
(See Mot. To Dismiss, Docket Entry 21.)
That motion was
Thereafter, Live Nation answered the Complaint, asserting as an
affirmative defense that Himber’s claims are subject to mandatory
binding arbitration and a class-action waiver. (Ans., Docket Entry
28, ¶ 53.) Live Nation again moves to compel arbitration, claiming
the parties have an enforceable agreement to arbitrate.
to Compel, Docket Entry 62.)
For purposes of this decision, the background can be
summarized as follows.
Live Nation operates a website through
which customers can purchase online tickets for performances at
various entertainment venues, including the Nikon at Jones Beach
Theatre at Jones Beach State Park—which Live Nation is licensed to
operate. (Compl. ¶¶ 7, 11.) During the past several years, Himber
has used Live Nation’s website to buy event tickets online.
Although Live Nation requests oral argument (see Feb. 13, 2018
Letter/Mot., Docket Entry 68), the Court finds that oral argument
is not necessary to its determination. The Clerk of the Court is
directed to terminate this motion as DENIED.
(Declaration of Kimberly Tobias “Tobias Decl.”, Docket Entry 64,
Himber’s claims arise from his use of the website in June
At that time, Himber entered the website, navigated to the
page for a September 1, 2016 Rascal Flatts concert at Jones Beach
Theatre, and browsed for tickets.
(Compl. ¶¶ 10-11.)
He saw that
the tickets he sought were $49.50 each, but that there was a $15.25
online-service fee added to the price of each ticket.
After learning of this online-service fee, Himber decided
to go to the box office, which was 20 minutes away, to buy the
tickets and avoid the fee.
(Compl. ¶ 12.)
However, when Himber
additional $6 per ticket, a charge that was not disclosed on Live
Nation’s website—but which he paid, having “already incurred the
time and expense of visiting the box office and there was no
cheaper alternative.” (Compl. ¶¶ 13-16.) Himber maintains that it
is impossible to avoid the $6 charge at the box office, making the
true price of a ticket $55.50—not $49.50.
(Compl. ¶ 17.)
claims that Live Nation’s policy and practice of advertising one
price for a ticket on the website (here, $49.50), and then charging
a higher price to people arriving at the box office (here, $55.50)
constitutes false advertising and a deceptive practice in violation
of GBL §§ 349 and 350.
(Compl. ¶¶ 18-20, 31, 35.)
declaration of Kimberly Tobias, Live Nation’s Vice President, Legal
(Tobias Decl. ¶ 2.)
Tobias represents that Live Nation
records of customers’ online ticket purchases. (Tobias Decl. ¶¶ 34.)
She explains the process of using Live Nation’s website,
completing the required forms, registering an account, and making
online ticket purchases.
(Tobias Decl. ¶¶ 4, 8.)
She attaches to
her declaration various screen shots showing a homepage, forms
they must agree before making those purchases.
(See Tobias Decl.
¶ 4 and Exs. 1-8, Docket Entries 64-1 - 64-8.)
that Live Nation’s records show that Himber made six purchases on
Live Nation’s website from 2009 to 2016, the most recent on June 3,
2016, when Himber purchased tickets to a Beach Boys concert at the
Ford Amphitheater at the Coney Island Boardwalk.
typically first visit the website’s homepage, then they navigate
through a series of webpages to buy tickets.
(Tobias Decl. ¶ 6.)
In doing so, users navigate through those pages by clicking on
designated hypertext “links” found on each page.
¶ 6.) The homepage and virtually all interior pages of the website
each page advising users that they agree to abide by those terms if
they continue past the page and use the site, and with each page
¶¶ 6-7 & Ex. 1.)
To buy tickets from the website, a customer, such
as Himber, is required initially to register a Live Nation account.
(Tobias Decl. ¶ 8.)
Attached to Tobias’ declaration are screen
shots that are identical or materially similar (due to slight
changes made over time) to the ones a customer would have seen as
a homepage and during the registration and/or purchasing process.
(Tobias Decl. ¶¶ 6-11 & Exs. 1-7.)
During the registration
process, a customer must click a “Sign Up” or “Accept and Continue”
button to set up an account.
(Tobias Decl. ¶ 8 & Ex. 2.)
above that button, the customer is informed that by using the
& Ex. 2.)
(Tobias Decl. ¶ 8
After the initial sign up, when a customer uses the
website to purchase tickets, the customer is required to click a
“Sign In” button, which appears directly above a notice stating
that “[b]y continuing past this page, you agree to our Terms of
(Tobias Decl. ¶ 9 & Ex. 3.)
To complete each purchase, the
customer clicks a “Place Order” button, while a notice immediately
above the button informs the customer that “By clicking ‘Place
(Tobias Decl. ¶ 10 & Ex.
According to Tobias, it would have been impossible for Himber
to purchase tickets on the website without first clicking the
(Tobias Decl. ¶ 13.)
Tobias maintains that since June 14, 2011, Live Nation’s
Decl. ¶¶ 7, 11 & Exs. 5, 6, 7.)
The arbitration provision in
effect when Himber purchased Beach Boys tickets online on June 3,
2016 and when he accessed the website before purchasing Rascal
Flatts tickets at the box office, provides:
“Any dispute or claim
relating in any way to your use of the Site, or to products or
services sold or distributed by us or through us, will be resolved
by binding arbitration rather than in court . . . .”
Ex. 7, at ECF p. 4.)
The provision states that it is “governed by
the Federal Arbitration Act.”
(Tobias Decl. Ex. 7, at ECF p. 4.)
It also includes a waiver of the right to participate in a class
action and states that the “arbitrator, and not any federal, state
or local court or agency, shall have exclusive authority to the
extent permitted by law to resolve all disputes arising out of or
relating to the interpretation, applicability, enforceability or
formation of this Agreement.”
(Tobias Decl. Ex. 7, at ECF pp. 4-
they have always been broad in scope.
In this respect, the
arbitration provision in effect on June 17, 2011, the date Himber
purchased Foo Fighter tickets, applies to “all disputes and claims
between [Live Nation and its customers] . . . including, without
limitation, claims relating to . . . your use of Live Nation’s
(Tobias Decl. Ex. 5, at ECF p. 6, ¶ 19.)
Tobias also notes that Live Nation’s parent company, Live
(Tobias Decl. ¶ 3.)
She maintains that Ticketmaster’s website and
Live Nations’s website are “materially identical . . . , in that
both websites perform similar functions, have similar designs, and
that by using the website, creating an account, and purchasing
(Tobias Decl. ¶ 12.)
Courts review a motion to compel arbitration under a
“‘standard similar to that applicable for a motion for summary
Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d
Cir. 2016) (quoting Bensadoun v. Tobe-Riat, 316 F.3d 171, 175 (2d
That standard “requires a court to ‘consider all
contained in pleadings, depositions, answers to interrogatories,
and admissions on file, together with . . .
(quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir.
2002) (alteration in original)). “In doing so, the court must draw
all reasonable inferences in favor of the non-moving party.”
The Federal Arbitration Act (“FAA”) expresses the strong
federal policy favoring arbitration.
Ragone v. Atl. Video at
Manhattan Ctr., 595 F.3d 115, 121 (2d Cir. 2010); Zaken v. Jenny
Craig, Inc., No. 11-CV-2465, 2011 WL 4916928, at *1 (E.D.N.Y. Oct.
13, 2011); see also Washington v. William Morris Endeavor Entm’t,
LLC, No. 10-CV-9647, 2011 WL 3251504, at *10 (S.D.N.Y. July 20,
The FAA provides that arbitration
agreements are “valid, irrevocable and enforceable,” unless such
grounds exist for the revocation of the contract.
9 U.S.C. § 2;
see also Ragone, 595 F.3d at 121 (quoting 9 U.S.C. § 2).
keeping with this policy, a court resolves doubts in favor of
agreements in accordance with their terms. Collins & Aikman Prods.
Co. v. Bldg. Sys., Inc., 58 F.3d 16, 19-20 (2d Cir. 1995).
Agreement and Scope of Agreement
In determining whether to compel arbitration, a court
must determine (1) whether such agreement exists between the
parties, as determined by state contract law; and, if so, (2)
whether the dispute falls within the scope of that agreement.
Meyer v. Uber Techs., Inc., 868 F.3d 66, 73-74 (2d Cir. 2017);
Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016);
Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 26 (2d Cir. 2002);
Infinity Indus., Inc. v. Rexall Sundown, Inc., 71 F. Supp. 2d 168,
170 (E.D.N.Y. 1999).
As for whether an agreement to arbitrate exists here, the
formation and construction control.
See Granite Rock Co. v. Int’l
Bhd. of Teamsters, 561 U.S. 287, 296-97 (2010).
To form a
contract, there must be mutual manifestation of assent by the
parties, whether by words or conduct, sufficient to assure that
they are truly in agreement with respect to all material terms.
Specht, 306 F.3d at 29; Friedman v. Schwartz, No. 08-CV-2801 (JS)
(WDW), 2009 WL 701111, at *9 (E.D.N.Y. Mar. 13, 2009).
context of agreements made over the internet, New York courts find
that binding contracts are made when the user takes some action
demonstrating that they have at least constructive knowledge of the
terms of the agreement, from which knowledge a court can infer
acceptance.” Hines v. Overstock.com, Inc., 380 F. App’x 22, 25 (2d
Cir. 2010). In other words, “[w]here there is no evidence that the
offeree had actual notice of the terms of the agreement, the
offeree will still be bound by the agreement if a reasonably
prudent user would be on inquiry notice of the terms,” Meyer, 868
F.3d at 74-75, a determination turning on the “‘[c]larity and
conspicuousness of arbitration terms,’” Id., at 75 (quoting Specht,
306 F.3d at 30).
When dealing with web-based contracts, as here,
“clarity and conspicuousness are a function of the design and
content of the relevant interface.”
In Meyer, the Second Circuit observed that one way it has
distinguished web-based contracts is the manner in which the user
In this respect, the court differentiated
between “clickwrap” agreements, which require users to click an “I
conditions of use, and “browsewrap” agreements, which generally
post terms and conditions on a website via a hyperlink at the
bottom of the screen.
Because browsewrap agreements do not
require the user to expressly assent, the validity of a browsewrap
agreement depends on whether the user has actual or constructive
knowledge of a website’s terms and conditions.
On a motion
to compel arbitration, a court “may determine that an agreement to
arbitrate exists where the notice of the arbitration provision was
reasonably conspicuous and manifestation of assent unambiguous as
a matter of law.”
Id. at 76.
Himber does not dispute that before he used Live Nation’s
website on the day that he purchased Rascal Flatts tickets at the
box office, he had used the website to purchase tickets, having
previously registered an account thereon.
Himber does not deny
online. Nor does he sufficiently contest that the layout and
language of the website provided reasonably conspicuous inquiry
notice of the arbitration provision when he used the website to
In fact, the evidence shows that the website’s
homepage page and interior pages contain reasonably conspicuous
hyperlinks to, and notices concerning applicability of, the Terms
By accessing the website and purchasing tickets thereon,
Nevertheless, the crux of Himber’s argument is that the
at the box office. (See Plaintiff’s Response to Defendants’ Motion
to Compel Arbitration, “Pl.’s Br.”, Docket Entry 66, at 1 (“It is
not ‘reasonably conspicuous’ to a reasonably prudent ‘computer
user’ that the terms and conditions would govern a purchase at the
box office”; and “Himber’s prior use of the website would not
convey to him that terms and conditions on the website that
governed his purchase of tickets online would govern a later
purchase at the box office”); Pl.’s Br. at 5 (“There is no basis
for a claim that when [Himber} actually purchased his tickets at a
box office, an arbitration clause was a term of the deal.”).)
Himber takes issue with the exhibits attached to the Tobias
Declaration, arguing that “the performance pages are cluttered” and
that the notice, “BY CONTINUING PAST THIS PAGE, YOU AGREE TO OUR
Br. at 5.)
He maintains that a “user who has only accessed the
website to determine what shows or performances are available would
regarding continuing further.
(Pl.’s Br. at 5.)
this motion, a reasonable consumer who was purchasing tickets at
the box office “would conclude that nothing that follows [the first
paragraph] applies and stop reading.”
(Pl.’s Br. at 6.)
respect, the first paragraph provides:
(“Terms”) that govern your use of the Live
Nation sites and applications where this
appears (collectively, the “Site”).
policies, rules or guidelines that may be
applicable to particular offers or features on
the Site are also incorporated into these
Terms. By visiting or using the Site, you
expressly agree to these Terms, as updated
from time to time.
arbitration provision, he notes, does not appears until ECF page 4
of Exhibit 7.
To the extent that Himber’s argument challenges whether
he assented to the Term of Use by using the website on the day in
question, the Court concludes that he did.
When Himber used the
website on the day he purchased the Rascal Flatts tickets, he again
advertising and deceptive practices.
Himber alleges that when he
accessed the website that day, he was interested in purchasing
three tickets to the Rascal Flatts concert. (Compl. ¶¶ 10-11.) By
using the website that day, Himber would have clicked on multiple
Live Nation webpages, including the homepage page and interior
pages (Tobias Decl. ¶ 7 & Ex. 1), which contained the reasonably
that by continuing past that page, they agree to abide by the Terms
See Meyer, 868 F.3d at 79 (“As long as the hyperlinked
text was itself reasonably conspicuous . . . a reasonably prudent
. . . user would have constructive notice of the terms.”).
result, Himber was on inquiry notice of, and had manifested assent
(“While it may be the case that many users will not bother reading
the additional terms, that is the choice the user makes; the user
is still on inquiry notice.”).
Contrary to Himber’s contentions,
the user ultimately purchases tickets on the website.
See Id. at
Moreover, contrary to Himber’s contentions, a user who
paragraph apply only to users purchasing tickets online, not at the
box office. Indeed, the first paragraph expressly advises that the
“following” terms “govern your use of the [website],” unqualified
by later language stating or reasonably suggesting that the terms
apply only to users making online purchases--but not to a user
complaining about false advertising and deceptive practices that
affected a box office purchase.
that the record demonstrates that the parties entered into an
agreement to arbitrate.
To the extent that Himber argues that the dispute and his
claims do not fall within the scope of the arbitration provision,
the parties disagree whether that issue is to be determined by the
Court or by an arbitrator.
Live Nation argues that the issue must
be determined by an arbitrator, whereas Himber argues that the
determination is for the Court.
(See Memorandum of Law in Support
of Defendants’ Motion to Compel Arbitration, at 11-2, Docket Entry
63; Pl.’s Br. at 13-14.)2
The Court agrees with Live Nation that
Himber also argues that Live Nation, by asking this Court to
“enforce the website’s terms-of-use” in its earlier motion to
dismiss (see Memorandum of Law in Support of Defendants’ Motion
to Dismiss, Docket Entry 21-1, at 10-11), somehow “waived” the
present argument that arbitrability must be determined by the
arbitrator. (Pl.’s Br. at 14.) There is no basis for Himber’s
claim of waiver, as Live Nation made the same argument then as it
send the case to arbitration for determination of arbitrable
arbitrator will determine whether this dispute is within the scope
of the arbitration provision.
In this respect, the parties agreed
that “[t]he arbitrator, and not any federal, state or local court
or agency, shall have exclusive authority to the extent permitted
by law to resolve all disputes arising out of or relating to the
interpretation, applicability, enforceability or formation of this
Agreement. . . .”
(Tobias Decl., Ex. 7, at ECF p. 4-5.)
express contractual provision clearly and unmistakably demonstrates
the parties’ intent to delegate the question of arbitrability to
See Mumin v. Uber Techs., Inc., 239 F. Supp. 3d
507, 522-23 (E.D.N.Y. 2017) (holding that similar language “clearly
and unmistakably evinces the parties’ intent to submit to an
application of the arbitral clause”); see also Nevarez v. Forty
Niners Football Co., LLC, No. 16-CV-7013, 2017 WL 3492110, at *1011 (N.D. Cal. Aug. 15, 2017) (holding that similar language in
question of arbitrability to the arbitrator”).
Even if the Court were to agree with Himber that the
determination of the scope of the arbitration provision is for this
Court, the arbitration provision appears broad enough the cover the
present dispute and claims.
As noted, the arbitration provision
“Any dispute or claim relating in any way to your use of
the Site, or to products or services sold or distributed by us or
through us, will be resolved by binding arbitration rather than in
court . . . .”
(Tobias Decl. Ex. 7, at ECF p. 4.)
dispute and claims for false advertising and deceptive practices
relate to Himber’s use of Live Nation’s website and to his use of
the website in connection with his box-office purchase of tickets-Live Nation’s “products or services.”
Himber seemingly ignores
that his claims in this action are for false advertising and
deceptive practices arising from his use of Live Nation’s website.
Indeed, he claims that Live Nation’s policy and practice of
advertising one price for a ticket on the website (here, $49.50),
and then charging a higher price to people arriving at the box
office (here, $55.50) constitutes false advertising and a deceptive
practice in violation of GBL §§ 349 and 350.
(See Compl. ¶¶ 16, 20
(“Nothing on the web site disclosed that there was a charge of $6
for purchasing tickets at the box office. . . .
The practice of
advertising one price for a ticket and then charging a higher price
The legal and factual bases for his claims cannot
be so easily divorced from his complaints about the website and his
use thereof on the day in question.
In other words, as Live Nation
argues, “Himber cannot base a claim on his use of Live Nation’s
website and at the same time argue that his use of that website is
irrelevant because he purchased his tickets at the box office.”
(Reply Memorandum of Law in Further Support of Defendants’ Motion
to Compel Arbitration, “Defs.’ Reply Br.”, Docket Entry 67, at 5.)
Himber also argues that Live Nation’s motion is barred by
(Pl.’s Br. at 11-12.)
To invoke judicial
estoppel, a party “must show that: (1) his adversary ‘advanced an
inconsistent factual position in a prior proceeding, and (2) the
prior inconsistent position was adopted by the first court in some
Wight v. BankAmerica Corp., 219 F.3d 79, 90 (2d Cir.
2000) (quoting AXA Marine & Aviation Ins. (UK) Ltd. v. Seajet
Indus. Inc., 84 F.3d 622, 628 (2d Cir. 1996)).
“‘[T]here must be
a true inconsistency between the statements in the two proceedings.
If the statements can be reconciled there is no occasion to apply
Id. (quoting Simon v. Safelite Glass Corp., 128
F.3d 68, 72–73 (2d Cir. 1997)) (alteration in original).
According to Himber, Live Nation is judicially estopped
from taking the position it currently takes because Ticketmaster,
its affiliate, took a contrary position in two earlier, unrelated
(See Pl.’s Br. at 11 (citing Goza v. Multi-Purpose Civic
Ctr. Facilities Bd. for Pulaski Cty., No. 12-CV-6125, 2014 WL
3672128 (W.D. Ark. July 23, 2014), and Nevarez, 2017 WL 3492110).)
Ticketmaster “asserted that it’s [sic] arbitration clause was not
unconscionable because a customer was free to buy tickets at a box
office without being bound by the arbitration clause.”
Himber’s reliance on judicial estoppel is
stated above, the present dispute and claims are based on Himber’s
use of Live Nation’s website--which he asserts subjected him to
false advertising and deceptive practices under New York law. Even
assuming that Live Nation is bound by the position Himber claims
Ticketmaster took in Goza and Nevarez, Live Nation does not argue
that the purchase of tickets from a Live Nation box office results
in the purchaser’s assent to the arbitration provision on its
website. Rather, in Live Nation’s words, its position here is that
“one cannot use Live Nation’s website, base a lawsuit on the use of
purchase at Live Nation’s box office.”
(Defs.’ Reply Br. at 5-6
Accordingly, there is no true inconsistency
to support the application of judicial estoppel.
Himber further argues that any agreement to arbitrate was
induced by misrepresentation. (Pl.’s Br. at 14.) This argument is
baseless, as Himber provides no support or sufficient explanation
for this contention.
For the above reasons, the Court GRANTS Live Nation’s
motion to compel individual arbitration and to stay the action
November 28, 2017 Consent Motion, (Docket Entry 58), as MOOT and
supra n.1), as DENIED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
21 , 2018
Central Islip, New York
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