EGAN v. LIVE NATION WORLDWIDE, INC.

Filing 63

MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 7/24/18. (jad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN EGAN,
Plaintiff,
V.

LIVE NATION WORLDWIDE, INC.,
Defendant.

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2:17-cv-445

MEMORANDUM OPINION

Mark R. Hornak, United States District Judge
On March 12, 2018, this Court denied Defendant Live Nation Worldwide's Motion to
Compel Arbitration, ECF No. 35, on the basis that the Defendant had not demonstrated the
existence of a valid agreement to arbitrate. (Op. of Mar. 3, 2018, ECF No. 46, at 1 (attached as
Exhibit A).) Defendant appealed that decision to the Court of Appeals on April 9, 2018, and filed
a Motion to Stay proceedings in this Court pending that appeal, ECF No. 57, on April 30, 2018.
Plaintiff opposes the stay, asserting that Defendant's appeal is frivolous. Upon full consideration
of the Motion and briefings of the parties, for the following reasons, Defendant's Motion to Stay
is denied without prejudice to the Defendant seeking a stay from the Court of Appeals.

I.

Legal Standard
An appeal of a denial of a motion to compel arbitration automatically deprives the District

Court of jurisdiction to proceed unless the appeal is deemed frivolous or forfeited. Kim v. Dongbu

Tour & Travel, Inc., 529 F. App'x 229, 223 (3d Cir. 2013) (citing Ehleiter v. Grapetree Shores,
Inc., 482 F.3d 207, 215 n.6 (3d Cir. 2007)). An appeal is considered frivolous '"when it is utterly
without merit' or without 'colorable arguments' raised in support." Hilman Co. (VI) Inc. v. Hyatt

1

Int'l et al., 899 F.2d 250, 251 (3d Cir. 1990) (quoting Sun Ship, Inc. v. Matson Navigation Co.,
785 F .2d 59, 64 (3d Cir. 1986); In re Hall's Motor Transit Co., 889 F .2d 520, 523 (3d Cir. 1989)
(internal citations omitted)).
II.

Analysis

Defendant asserts that it has five viable arguments to assert on appeal. First, with respect
to its claim that Plaintiff agreed to arbitrate in 2012, Defendant asserts that:
(1) Plaintiff waived all evidentiary objections to the 2012 [Terms of Use ("TOU")]
by failing to object;
(2) the Court was required to give Defendant an opportunity to supplement the
record to cure any perceived deficiencies in light of Plaintiffs failure to object;
(3) the declaration and deposition testimony of Mr. Han adequately authenticated
the 2012 TOU; and
(4) Defendant's evidence regarding the design ofits Website was sufficient to prove
a valid agreement to arbitrate.

(Def.'s Br. in Supp. of Mot. to Stay Pending Appeal, ECF No. 58, at 6-7.) Lastly, as to Defendant's
argument that Plaintiff agreed to arbitrate in 2017, Defendant claims that:
( 5) the evidence submitted shows that Plaintiff proceeded past the landing page of
the Website when he entered the presale code and clicked on the Website to attempt
to purchase tickets.
(Id. at 7.)
The Court will address each asserted appeal issue. Because Issues 3 through 5 each deal
with the adequacy of Defendant's evidence to authenticate documents and/or prove a valid
agreement to arbitrate (in both 2012 and 201 7) and fail for similar reasons, the Court will address
those issues together.
A.

Issue 1: Waiver of 2012 TOU Objections

Defendant asserts that the Court was required to accept its evidence as authenticspecifically, the 2012 Terms of Use ("2012 TOU")-because (it believes) the Plaintiff did not
properly object on authenticity grounds. Plaintiff asserts that he did properly object, since his
2

concerns with Defendant's evidence of the website in 2012-including the 2012 TOU-and Mr.
Han's inability to authenticate it based on personal knowledge (despite the fact that his declaration
purported to be based on personal knowledge) are what brought the issue to the Court's attention.
(Pls.' Resp. in Opp'n to Def.'s Mot. to Stay, ECF No. 60, at 5-6.)
As an initial matter, the Court notes that the competency of Defendant's evidence was
clearly a matter before the Court, and it was a matter raised by the Plaintiff, both in its briefs and
at oral argument. (See, e.g., Pls.' Resp. in Opp'n to Def.'s Mot. to Compel Arbitration, ECF No
37, at 7-8, 8 n.5; Tr. of Oral Arg. Proceedings of Jan. 30, 2018, ECF No. 61, 14:9-16:15.)
Secondly, what objections (and the specific grounds of those objections) may or may not have
been preserved by a party for appeal is a question for the Court of Appeals-not for this Court in
ruling on the Motion to Compel Arbitration. When the issue was before this Court, it identified it,
addressed it, and ruled on it. A district court judge's discretion is not bound by specific evidentiary
objections raised by the parties, Fed. R. Evid. 103(c), 901(a), and a district court may raise
authenticity issues sua sponte. See, e.g., Maddox v. Patterson, 905 F.2d 1178, 1180 (8th Cir. 1990)
("[I]t is clearly within the trial court's discretion to exclude evidence sua sponte."). Whether the
Plaintiff objected or not, the Court actually addressed and considered the authenticity issue as it
considered whether the Defendant was entitled to the reliefit sought. Accordingly, the Defendant's
argument on this point is frivolous.
B.

Issue 2: Required Opportunity to Supplement the Record

Next, Defendant asserts that even if Plaintiff did not waive his objections to the 2012 TOU,
this Court was required to allow Defendant to supplement the record to authenticate the 2012 TOU
prior to issuing its decision.

3

The Court concludes that this appeal issue is similarly frivolous. As an initial matter, the
Court notes that this was Defendant's Motion to Compel Arbitration, which the Court denied after
oral argument based on Defendant's lack of evidence. In that regard, Defendant's citations to cases
involving a court granting summary judgment without oral argument and without giving a party
notice of the authenticity issues of its evidence opposing summary judgment are therefore clearly
distinguishable. (Def.'s Br. in Supp. of Mot. to Stay Pending Appeal, ECF No. 58, at 11 (citing,
e.g., Rodriguez v. Vil!. Green Realty, Inc., 788 F.3d 31, 46-47 (2d Cir. 2015).)
Secondly, and importantly, Defendant was well on notice that its evidence faced
substantiation issues. Plaintiff raised the issue in its briefing, and a substantial portion of the oral
argument in this matter was devoted to the question of how Mr. Han, who did not begin working
for Defendant until 2013, could speak with personal knowledge in his declaration and deposition
as to the contents of the website in 2012-which included the 2012 TOU. (Tr. of Oral Arg.
Proceedings of Jan. 30, 2018, ECF No. 61, 14:9-16:15, 19:25-20:5, 42:4-7, 50:6-51:19.) 1 The
majority of the rest of the argument was devoted to discussing whether there was a "hole in the
factual record" as to the rest of Defendant's evidence, and the Court identifying exactly what it
might conclude that hole was. (See, e.g., id. at 40:14-41:18.)
Despite this extensive discussion (including the Court's observations on this issue during
oral argument) about the inadequacies of Defendant's evidence (both in regards to the 2012 TOU

1

This exchange between the Court and Defendant's counsel during oral argument provides one example:
THE COURT: What do I do with[ ]in his deposition he said, I think, that it wasn't
until 2013 that he got a job that involved him in doing all this stuff? So it was
after all of the events of 2012. How does he know any of that stuff?
MR. CHILLEEN: What -- because he works there. Just because you are THE COURT: I work here, but I don't know what kind of car John Roberts drives.

(Tr. of Oral Arg. Proceedings of Jan. 30, ECF No. 61, 51: 12-19.)

4

and the design of the website in both 2012 and 2017), Defendant never asked to nor offered to
supplement the record, either in response to Plaintiffs arguments in his brief or to the Court's
extensive questioning at oral argument. Further, in the month and a half between oral argument
and the date the Court issued its decision-January 30, 2018, to March 12, 2018-Defendant made
no effort to supplement the record regarding any of the evidentiary deficiencies discussed at oral
argument, and it never asked to do so. Defendant did not need an engraved invitation to provide
further support of its own Motion to Compel Arbitration, and it is not the Court's responsibility to
affirmatively offer this opportunity to a litigant who makes no effort to request it-particularly
after the Court identified the potential evidentiary issues on the record at oral argument. Finally,
although Defendant includes a single line in its brief in support of this Motion to Stay requesting
permission to supplement the record now, it does not attempt to explain what it would supplement
the record with. (Def.'s Br. in Supp. of Mot. to Stay Pending Appeal, ECF No. 58, at 12.) At any
rate, this request is irrelevant to the Court in deciding the present Motion to Stay.
Finally, the Court's Order did not deny the Motion to Compel Arbitration with prejudice.
Defendant could have supplemented the record and reasserted that Motion with competent
evidence at any time, but it chose not to. Instead, Defendant decided to appeal, in part on the basis
that it did not have a chance to supplement the record-something it never tried to do prior to this
Motion to Stay. This appeal issue is therefore frivolous and wholly of the Defendant's own making.

C.

Issues 3, 4, and 5: The Adequacy of Defendant's Evidence

The three remaining issues in Defendant's appeal each assert that Defendant's evidence
was competent to demonstrate an agreement to arbitrate. Specifically, Defendant claims that the
declaration and deposition testimony of Mr. Han adequately authenticated the 2012 TOU; that
Defendant's evidence regarding the design of its Website was sufficient to prove a valid agreement

5

to arbitrate in 2012; and that the evidence submitted pertaining to Plaintiffs attempt to purchase
tickets in 2017 shows that Plaintiff proceeded past the landing page of the Website when he entered
the presale code and clicked on the Website to attempt to purchase tickets. (Def.' s Br. in Supp. of
Mot. to Stay Pending Appeal, ECF No. 58, at 6-7.)
Defendant's appeal is frivolous as to these issues because it does nothing to rebut the
evidentiary gaps, holes, and insufficiencies that the Court laid out in detail in its Opinion as the
basis for its denial of Defendant's Motion to Compel-and, indeed, it cannot. (Op. of March 12,
2018, ECF No. 46, at 5-7, 8-12.) This was Defendant's Motion to Compel Arbitration, and
Defendant could have supported it however it wanted. Defendant decided to support its Motion
with a declaration by a declarant with no real personal knowledge 2 ( and no temporal basis to have
such knowledge), and once this issue was pointed out to it, Defendant made no effort to support
its evidence any other way, or explain how this declarant could have obtained personal knowledge.
(Id. at 6-7.)

Further, Defendant's argument that the Court should have held a trial on the issue of
agreement to arbitrate before denying the Motion is frivolous because the Court did not deny the
Motion because it resolved a disputed fact against the Defendant; the Defendant's Motion (and its
evidence) simply didn't show that there was an agreement to arbitrate. At this stage, there was
nothing to schedule a trial on. As this Court's Opinion denying the Motion to Compel Arbitration
laid out, even considering the Defendant's proffered evidence, that evidence did not prove what

2

It is undisputed that David Han, Defendant's employee and its only declarant in this case, did not begin working for
Defendant until 2013. (Han Dep., ECF No. 39-2, 74:25.) Defendant has not provided a satisfactory explanation of
how Mr. Han could have gained personal knowledge of the evidence as to the alleged 2012 ticket purchase that he
purported to authenticate in his declaration, particularly in light of Mr. Han's multiple inconsistent statements about
Defendant's ability to produce or recreate the webpages or the code used in 2012. (Op. of March 12, 2018, ECF No.
46, at 6-7. Compare Han Dep., ECF No. 39-2, 18:23-20:3; 20: 13-21 :9; 21: 10-22: 15; 34: 19-36:8, with Han Deel. of
Oct. 27, 2017, ECF No. 40-1, ~ 2; Def. 's Reply in Supp. of Mot. to Compel Arbitration, ECF No. 40, at 8.)

6

the Defendant offered it for, as it was facially incompetent on the relevant issues. There was simply
a glaring lack of actual evidence on Defendant's part.
At bottom, Defendant's appeal issues regarding the adequacy of its evidence argue that
where Defendant failed to fill in the gaps-such as its argument that "a user had to click something
on Defendant's Website" 3 before it received a certain message-the Court should have drawn all
inferences in its favor, rather than Plaintiffs (the nonmoving party). This argument is frivolous
because it runs patently counter to the legal standard the Court was bound to apply: the summary
judgment standard, where the Court is to draw all reasonable inferences in favor of the nonmoving
party. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Guidotti v. Legal
Helpers Debt Resolution, L.L.C., 716 F.3d 764, 776 (3d Cir. 2013). Further, Defendant's litigation

conduct in this case defies logic. Rather than simply supplementing the record4 with additional
screenshots proving the steps a user would have to take to receive the message stating "Sorry we
don't have any accessible seating available at the moment,"-that is, to fill in the evidentiary gap
that, if Defendant's assertions about the design of its website are correct, should have been
exceedingly easy for Defendant to do-Defendant instead asked this Court (and now the United
States Court of Appeals) to just take its word for it that it exists. 5 (Op. of June 12, 2018, ECF No.
46, at 10-12; see also Tr. of Oral Arg. Proceedings of Jan. 30, 2018, ECF No. 61, at 32:18-37:5.)

3

(Def.'s Br. in Supp. of Mot. to Stay Pending Appeal, ECF No. 58, at 16-17.)

4

Either on its own accord, or by asking for the Court's permission to do so.

5

By way of example, the Court notes the following discussion between counsel for Defendant and the Court during
oral argument:
MR. CHILLEEN: There's nothing in the record, I don't see, that implies that Mr.
Egan did not go past that page. I mean - his own exhibit says: Sorry, we don't
have any accessible seating. You don't magically come to a page THE COURT:
I don't know that. You might be right. I'm not saying you' re not
right. But I don't -- I didn't come hatched out of the shell knowing that. As a
judge, I have to rely on evidence. So where is it in the record that says you

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The Defendant's appeal issues as to its proffered evidentiary record are frivolous. The
Court therefore denies the Motion to Stay without prejudice to the Defendant seeking a stay from
the Court of Appeals.

III.

Conclusion
For the reasons stated in this Memorandum Opinion, Defendant's Motion to Stay Pending

Appeal, ECF No. 57, is DENIED.
An appropriate Order will follow.

Mark R. Hornak
United States District Judge
Dated: July 24, 2018
cc:

All counsel of record

can't get to [Exhibits) B or C unless you visited another page? Just physically
can't happen.
MR. CHILLEEN:

I think it's conveyed by the declarations.

THE COURT:
I'll break the bad news, Mr. Chilleen. I don't think the declaration
says that. I think it says a lot of things. I don't think it says that. So if I
conclude that after studying it further, if I stick with that conclusion, what do
you think I should do?
MR. CHILLEEN:
I think it's a matter of judicial notice that when you go to
websites, they don't magically tell you what tickets are available for a certain
concert. You have to click on a button.

(Tr. of Oral Arg. Proceedings of Jan.30,2018, ECF No. 61, at 35: 17~36: 14.)

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Case 2:17-cv-00445-MRH Document 46 Filed 03/12/18 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN EGAN,
Plaintiff,

2: 17-cv-445

V.

LIVE NATION WORLDWIDE, INC.,
Defendant.

OPINION
Mark R. Hornak, United States District Judge

This is a case about buying rock concert tickets online, and the forum in which a dispute
about doing that should be resolved. Now before the Court is Defendant Live Nation Worldwide,
Inc. 's ("Defendant's") Motion to Compel Arbitration, ECF No. 35. For the reasons that follow,
the Court concludes that Defendant has not demonstrated the existence of a valid agreement to
arbitrate. Accordingly, the Motion at ECF No. 35 is denied.

Plaintiff John Egan ("Plaintiff' or "Egan") is a wheelchair user who says that Defendant's
practice of not selling wheelchair-accessible seating during ticket presales violates the Americans
with Disabilities Act, 42 U.S.C. § 12181 et seq. ("ADA"). (Comp!., ECFNo. 1, ~~ 1, 3.) According
to his Complaint, on March 26, 2017, Plaintiff learned that the Counting Crows would be
performing at KeyBank Pavilion, a venue owned by Defendant in Burgettstown, Pennsylvania, on
September 12, 2017. (Id.~~ 4, 18.) Tickets were scheduled to go on sale to the general public on
March 31, 2017, with presale tickets available on March 28, 2017. (Id~ 19.) On March 28 and

EXHIBIT A

Case 2:17-cv-00445-MRH Document 46 Filed 03/12/18 Page 2 of 13

2 9, 1 Plaintiff attempted to purchase pre sale tickets for the concert from Defendant's website, but
both times he received an electronic message stating, "Sorry we don't have any accessible seating
available at the moment." (/d. ~~ 20, 24.) Plaintiff twice called Defendant's helpline for assistance
and was told that Defendant does not sell accessible seating during presales. (Id. ~~ 21, 25.)
Plaintiff also contacted the concert venue and emailed Defendant's customer support team, but did
not receive a solution that worked for him. (Id.

~~

22-23, 26-28.)

Defendant asks the Court to compel Plaintiff to arbitrate his claims and to stay this case
pursuant to an arbitration provision in Defendant's Terms of Use. 2 (Def. 's Mot. to Compel
Arbitration, ECF No. 35.)
II.

Legal Standard

The Federal Arbitration Act ("FAA") requires district courts to stay judicial proceedings
and compel arbitration of claims covered by a written and enforceable arbitration agreement. 9
U.S.C. § 3; James v. Global Te/Link Corp., 852 F.3d 262, 265 (3d Cir. 2017). A party seeking to
compel arbitration must first demonstrate that a valid agreement to arbitrate exists. See Schwartz
v. Comcast Corp., 256 F. App'x 515, 519 (3d Cir. 2007). "Because '[a]rbitration is a matter of
contract between the parties,' a judicial mandate to arbitrate must be predicated upon the parties'
consent." Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 771 (3d Cir. 2013)
(quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980)). Thus,

1 The

record is unclear regarding the precise dates that Plaintiff attempted to purchase Counting Crows tickets from
Defendant's website. The Complaint alleges Plaintiff visited the website on March 28 and 29, 20 I 7. (Comp!., ECF
No. I, 1~ 20, 24.) Plaintiffs Declaration states that he visited the website on March 28 and 30, 2017. (Egan Deel.,
ECF No. 38, ~ 3.) Similarly, Exhibit C to Plaintiffs Declaration is a screenshot ofan iPhone taken on March 30,
2017, showing the Ticketmaster page where Plaintiff attempted to purchase tickets for the concert. (Egan Deel. Ex.
C, ECF No. 38-3.) Except when referring to Exhibit C, the Court will follow the facts as alleged in the Complaint
(March 28 and 29, 2017).
2 Defendant filed its original Motion to Compel Arbitration on June 2, 2017. (ECF No. 18.) Thereafter, the Court
allowed a period of discovery targeted at this issue until October 4, 2017. (See Order of June 26,2017, ECF No. 28;
Order of August 21, 2017, ECF No. 31; Order of September I, 2017, ECF No. 34.) Defendant filed the present
Motion, ECF No. 35, following this discovery period.

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Case 2:17-cv-00445-MRH Document 46 Filed 03/12/18 Page 3 of 13

before ordering arbitration, a court must be "satisfied that the making of the agreement for
arbitration ... is not in issue." 9 U.S.C. § 4. "[Q]uestions of arbitrability, including challenges to
an arbitration agreement's validity, are presumed to be questions for judicial determination."

Guidotti, 716 F.3d at 773 (quoting Qui/loin v. Tenet HealthSystem Phila., Inc., 673 F.3d 221,228
(3d Cir. 2012)).
Where the existence of an agreement to arbitrate is in issue, courts apply the summary
judgment standard to motions to compel arbitration. Id. at 776. District courts "apply the relevant
state contract law to questions of arbitrability, which may be decided as a matter of law only if
there is no genuine issue of material fact when viewing the facts in the light most favorable to the
nonmoving party." Aliments Krispy Kernels, Inc. v. Nichols Farms, 851 F.3d 283, 288-89 (3d Cir.
2017).

III.

Analysis

Defendant has put forth two grounds for which it asks the Court to find that there is a valid
agreement between Plaintiff and Defendant to arbitrate the present dispute: Plaintiffs alleged
online ticket purchase for a Madonna concert in 2012, and Plaintiffs attempt to purchase tickets
online for a Counting Crows concert in 2017 (the basis of the Plaintiffs claim). (Def.'s Br. in
Supp. of Mot. to Compel Arbitration, ECF No. 36, at 5.)
First, according to Defendant, Plaintiff bought Madonna concert tickets online through
Ticketmaster.com from a desktop computer on February 24, 2012, during which he "was required
to affirmatively accept the Terms of Use in order to complete his online transaction." (Han Deel.,
ECF No. 35-4,, 2.) Exhibit A of David Han's Declaration3 is purportedly the Terms of Use that

J

Mr. Han works for Defendant, which also owns Ticketmaster.

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Case 2:17-cv-00445-MRH Document 46 Filed 03/12/18 Page 4 of 13

were in vogue when Plaintiff purchased these tickets in 2012, which include a binding arbitration
provision. (Id.; Han Deel. Ex. A, ECF No. 35-5, at 1, 10.)
Second, Defendant asserts that Plaintiffs attempt to purchase tickets to the Counting
Crows concert in 2017 using his iPhone constitutes an agreement to arbitrate because "when
Plaintiff signed into his account on March 28 and 29, 2017, he had to demonstrate by clicking a
button that he affirmatively expressed his agreement to be bound by the arbitration provision
contained in the Terms of Use before attempting to purchase tickets." (Def.'s Br. in Supp. of Mot.
to Compel Arbitration, ECF No. 36, at 5.) Additionally, by the nature of Plaintiffs interactions
with the website, Defendant claims that Plaintiff necessarily navigated past a page that stated: "By
continuing past thi_s page, you agree to our Terms of Use." (Id. at 4-5.)

A. Choice of Law
Before analyzing whether either the alleged 2012 purchase or the 2017 attempted purchase
established an agreement to arbitrate the present dispute, the Court must decide which substantive
law to apply. To determine whether the parties have agreed to arbitrate, courts apply "ordinary
state-law principles that govern the formation of contracts." First Options of Chi., Inc. v. Kaplan,
514 U.S. 938,944 (1995).
The parties have not briefed the issue of which state's law the Court should apply. Plaintiff
is a Pennsylvania resident. Although Defendant is incorporated in Delaware with its principal place
of business in California, Plaintiff accessed Defendant's website in Pennsylvania, and the venue
of the Counting Crows concert for which Plaintiff attempted to purchase tickets (KeyBank
Pavilion, which Defendant owns) is located in Pennsylvania. The arbitration provisions in both the
2012 and the 2017 Terms of Use provided by Defendant state that the agreement is "governed by
and construed in accordance with federal law to the fullest extent possible," and neither version of

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Case 2:17-cv-00445-MRH Document 46 Filed 03/12/18 Page 5 of 13

the Terms of Use directs which substantive state law should apply in determining whether the
parties have agreed to arbitrate. (See Han Deel. Exs. A & B, ECF Nos. 35-5, 35-6.) Accordingly,
because neither party has asserted that a different state law should apply, the entirety of the events
giving rise to this claim occurred in Pennsylvania, and the arbitration provisions contain no choiceof-law clause related to substantive state law, the Court will apply the law of the forum state,
Pennsylvania, to determine whether the parties have agreed to arbitrate. See, e.g., Kochert v.

Adagen Med. Int 'l, Inc., 491 F.3d 674,677 (2007) ("Where the parties have not identified a conflict
in state law, we will generally apply the law of the forum state." (citing Gould v. Artisoft, Inc., 1
F.3d 544, 549 n.7 (7th Cir. 1993))).
Contract formation under Pennsylvania law requires "( 1) a mutual manifestation of an
intention to be bound, (2) terms sufficiently definite to be enforced, and (3) consideration." Kirleis

v. Dickie, McCamey & Chilcote, P. C., 560 F .3d 156, 160 (3d Cir. 2009) (citing Blair v. Scott
Specialty Gases, 283 F.3d 595,603 (3d Cir. 2002)). In Pennsylvania, like most other states, mutual
assent is the "touchstone of any valid contract." Bair v. Manor Care of Elizabethtown, PA, LLC,
108 A.3d 94, 96 (Pa. Super. Ct. 2015).

B. AHeged 2012 Ticket Purchase
As to Plaintiffs alleged 2012 ticket purchase, 4 the Court concludes that Defendant has not
produced competent evidence to demonstrate that the Terms of Use included as Exhibit A to David
Han's Declaration, ECF No. 35-5-which Defendant asserts constitutes a binding arbitration

4

Plaintiff states that he does not recall purchasing Madonna concert tickets from Defendant's website on February
24, 2012. (Egan Deel., ECF No. 38, ~ 10.) Plaintiff says that he is not particularly hung up on Madonna, stating, "I
also am not a Madonna fan, so I would not have wanted to purchase tickets for any such concert." (Id. 1 11.) The
Court notes that testimony that one does not recall an event is not equivalent to testimony that it did not happen, and
a failure to recall an event without a denial that it happened is insufficient to create an issue of material fact. See
EEOC v. Bob Evans Farms, LLC, 275 F. Supp. 3d 635, 642 n.6 (W.D. Pa.2017) (collecting cases). That said, given
the Court's conclusion that Defendant's evidence is insufficient to demonstrate that the parties entered into a valid
agreement to arbitrate based on this alleged 2012 purchase, and Plaintiffs statement is not an admission that he did
buy those tickets, Plaintiffs avennent does not resolve the matter.

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Case 2:17-cv-00445-MRH Document 46 Filed 03/12/18 Page 6 of 13

agreement-were in fact the Terms of Use in effect at the time of Plaintiffs alleged purchase in
2012, and that Plaintiff would have necessarily had to have agreed to those terms to purchase the
Madonna tickets.
Under Federal Rule of Evidence 901, "[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). One way to
authenticate evidence is by testimony of a witness with knowledge that an item is what it is claimed
to be. Fed. R. Evid. 901 (b )(1 ); see also Fed. R. Evid. 602 ("A witness may testify to a matter only
if evidence is introduced sufficient to support a finding that the witness has personal knowledge
of the matter."). Defendant appears to attempt to authenticate Exhibit A through David Han's
Declaration, where he states, "I have personal knowledge of the facts set forth herein .... " (Han
Deel., ECF No. 35-4, ~ 1.) However, this Declaration is the only evidence offered by Defendant
to verify the purported 2012 Terms of Use, and Mr. Han actually cannot speak from personal
knowledge because he did not begin working for Defendant until 2013. (Han Dep., ECF No. 39-

2, 74:25.)
Plaintiff conceded during oral argument that he had no affirmative evidence to dispute
whether these terms were or were not in effect in 2012; however, under Rule 901, the burden is on
the proponent of the evidence to sufficiently demonstrate that the item is authentic, and under the
substantive law for resolving this Motion, that there is sufficient evidence to support its claim.
Defendant has produced no competent evidence beyond David Han's Declaration to verify the
existence and methodology of the 2012 Terms of Use, and it has not explained how Mr. Han could
have gained personal knowledge of the previous content of the website. Although Mr. Han
suggested multiple times in his deposition testimony that he could use the website's "code" to

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Case 2:17-cv-00445-MRH Document 46 Filed 03/12/18 Page 7 of 13

recreate various pages as Plaintiff allegedly would have seen them on February 24, 2012, 5 this
actually proved to not be possible. As Mr. Han stated in a second Declaration, "Although
Defendant has the code version controlled, the software tree is now different, the infrastructure has
changed such that the code cannot be deployed, and the data sets and application programming
interfaces have changed." (Han Deel. of Oct. 27, 2017, ECF No. 40-1, ~ 2.) This being the case,
Plaintiffs challenge to Mr. Han's personal knowledge of the contents of Defendant's website in
2012 is well taken, and Exhibit A to David Han's Declaration-the purported 2012 Terms of
Use-has not been sufficiently authenticated. Without such evidence, the Court cannot conclude
that Plaintiff agreed to arbitrate with Defendant in 2012.
Although the Court need not reach the next issue in light of its conclusion regarding the
insufficiency of Defendant's evidence in support of its argument, the Court also questions whether
a reasonable internet user would understand that by using the website-including, according to
Defendant, clicking anything on a page that included the text "[b]y continuing past this page, you
agree to our Terms of Use"-under the purported 2012 Terms of Use, that user was agreeing to
forever arbitrate any dispute with Defendant, even a dispute completely unrelated to the use of the
website at that time. 6 As with any other contract situation, if there is no meeting of the minds on

5 See,

e.g., Han Dep., ECF No. 39-2, 18:23-20:3; 20:13-21:9; 21:10-22:15; 34:19-36:8.
During oral argument, counsel for Defendant stated (in response to the Court's hypothetical question) that
Defendant's arbitration provision would require arbitration in a negligence action where, for example, a plaintiff
(who had used Defendant's website years earlier) slipped and fell at Defendant's headquarters-an injury
completely unrelated to the plaintiffs purchase of tickets or previous use of the website. (See Han Deel. Ex. A, ECF
No. 35-5, at I 0-11 ("Live Nation and you agree to arbitrate all disputes and claims between us. This agreement to
arbitrate is intended to be broadly interpreted. It includes, but is not limited to ... claims arising out of or relating to
any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any
other legal theory, including, without limitation, claims relating to your use of Live Nation's website ... claims that
arose before this or any prior Agreement ... [and] claims that may arise after the termination of this Agreement."
(emphasis added)).)
Interestingly, the arbitration provision in Defendant's 2017 Terms of Service is significantly narrower in this
regard, as it applies only to "[a]ny 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 . ... " (Han Deel. Ex. 8, ECF No. 35-6, at 6.)
6

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the terms of the contract, there is no contract. See, e.g., Morosetti v. La. Land & Exp/. Co., 564
A.2d 151, 153 (Pa. 1989).
During oral argument, counsel for Defendant opined (seemingly both off-the-cuff and out
of thin air) that the arbitration agreement in the 2012 Terms of Use might only last ten years from
the date of the agreement. This temporal limitation is not supported by the text of the 2012 Terms
of Use (or anything else in the record), and at any rate, the Court is skeptical that a reasonable
internet user would understand that they were agreeing to arbitrate any claim at all-based in
contract, tort, or any other kind of law, including claims wholly unrelated to the use of the website
or tickets purchased from Defendant-merely by using Ticketmaster's website. In this case, the
2012 purchase and the 2017 attempted purchase were more than five years apart, and Plaintiffs
claim is entirely unrelated to his alleged use of the website in 2012 or the Madonna concert. Under
these circumstances, the reasonableness and substantive conscionability of the arbitration
provision may fairly be questioned. If Defendant had shown that the parties agreed to arbitrate,
these questions might well be left to the arbitrator based on the delegation clause in the arbitration
provision. (See Han Deel. Ex. A, ECF No. 35-5, at 10.) However, as explained above, Defendant
failed to establish the existence of such an agreement. Accordingly, the Court cannot conclude as
a matter of law that there was a valid agreement to arbitrate Plaintiffs current ADA claim based
on Plaintiffs alleged 2012 purchase of Madonna concert tickets from Defendant's website.

C. 2017 Attempted Ticket Purchase
As to Plaintiff's 201 7 attempted ticket purchase, the evidence in the record does not
sufficiently demonstrate under the summary judgment standard that when Plaintiff saw the
webpage informing him that accessible seating was not available for presale, he had necessarily
agreed to the Terms of Use by proceeding past previous pages that stated, "[b]y continuing past

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this page, you agree to our Terms of Use" (the "Terms of Use disclosure"). 7 First, Defendant
asserts that the 2017 purchase attempt constitutes an agreement to arbitrate because "when Plaintiff
signed into his account on March 28 and 29, 2017, he had to demonstrate by clicking a button that
he affirmatively expressed his agreement to be bound by the arbitration provision contained in the
Terms of Use before attempting to purchase tickets." (Def.'s Br. in Supp. of Mot. to Compel
Arbitration, ECF No. 36, at 5.) A number of Defendant's exhibits are screenshots of the "Create
Account" or "Account Sign-In" pages that include the Terms of Use disclosure at the bottom of
the screen, both from desktop and mobile versions. (See Han Deel. Ex. D, ECF No. 35-8; Ex. E,
ECF No. 35-9; Ex. J, ECF No. 35-14; Ex. K, ECF No. 35-15.) But there is no evidence in the
record that Plaintiff ever signed into (or created) a Ticketmaster account during his 2017 attempt
to purchase tickets. Defendant's website requires users to sign in before they can purchase tickets
through the site-a user does not have to sign in simply to view the site. (Han Deel., ECF No. 35-

7

Currently in the record relevant to this issue is the following: David Han's Declaration, which states that "[s]ince at
least 2007, the home page and virtually all interior pages of the ticketmaster.com website-whether accessed from a
desktop computer or a smart phone such as an iPhone-have clearly stated that the use of the site is subject to the
Terms of Use" (Han Deel., ECF No. 35-4, 1 4); the Terms of Use in effect when Plaintiff attempted to purchase
tickets on March 28 and 29, 2017, which include a mandatory arbitration provision (Han Deel. Ex. 8, ECF No. 35-6,
at I, 6); a screenshot of Ticketmaster's Homepage (date unclear), which includes the Terms of Use disclosure at the
bottom of the screen (Han Deel. Ex. C, ECF No. 35-7); a screenshot ofTicketmaster's Create Account page (part of
the process to purchase tickets) with an "Accept and Continue" button and the Terms of Use disclosure at the bottom
(Han Deel. Ex. D, ECF No. 35-8); a screenshot ofTicketmaster's Account Sign-In page (also part of the process to
purchase tickets, if the customer already has an account) with the Terms of Use disclosure at the bottom (Han Deel.
Ex. E, ECF No. 35-9); a screenshot of the Payment page, where customers enter their billing information and click
"Submit Order" to complete their purchase, which also includes the Terms of Use disclosure at the bottom (Han
Deel. Ex. F, ECF No. 35-10); screenshots of the mobile versions of the Ticketmaster Homepage, Create Account
page, Account Sign-In page, and Payment page, all of which include the Terms of Use disclosure at the bottom of
the screen (Han Deel. Exs. I, J, K, & L, ECF Nos. 35-13-35-16); and a screenshot of the "Event Info" page for a
Rob Delaney comedy show on May 12, 2012, which appears to be from the mobile version of the website, and
which does not include the Terms of Use disclosure at the bottom of the page (Han Deel. Ex. M, ECF No. 3 5-17).
Each of these Exhibits were offered by Defendant. Plaintiff offered the following relevant exhibits: a photograph of
(presumably) Plaintiffs iPhone 5, showing a post on the Counting Crow's Facebook page with a link to the presale
tickets that Plaintiff attempted to purchase on March 28 and 29, 2017 (Egan Deel. Ex. A, ECF No. 38-1); and
photographs of that iPhone on March 28 and 30, 2017, both showing the Ticketmaster page where Plaintiff
attempted to purchase tickets for the Counting Crows concert, including the message: "Sorry we don't have any
accessible seating available at the moment" (Egan Deel. Exs. B & C, ECF Nos. 38-2, 38-3).

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4, ~ 5.) Plaintiff asserts that because he could not purchase tickets, he never signed in (Pl.'s Resp.
in Opp'n, ECF No. 37, at 16-17), and Defendant has not demonstrated otherwise.
Defendant further argues that because "the home page and virtually all interior pages" (Han
Deel., ECF No. 35-4,

~

4) of Ticketmaster's website include the disclosure that "[b]y continuing

past this page, you agree to our Terms of Use," Plaintiff necessarily navigated past a page while
attempting to purchase Counting Crows tickets that bound him to the Terms of Use, including the
arbitration provision. (Def. 's Br. in Supp. of Mot. to Compel Arbitration, ECF No. 36, at 4-5.)
Once again, the evidence in the record does not establish this. Defendant submitted exhibits
showing that a consumer traveling from the Homepage to the Create Account/Sign-In page and
ultimately to the Payment page would navigate past these Terms of Use disclosures; however,
Plaintiff asserts he did not visit any of those pages when he attempted to purchase Counting Crows
tickets in 2017. (Pl.'s Resp. in Opp'n, ECF No. 37, at 16-17.) Rather, Plaintiff was taken directly
to the ticket sales page on Defendant's website through a link on the Counting Crows' Facebook
page, therefore bypassing the Homepage. (Egan Deel., ECF No. 38, ~~ 4-9.)
Plaintiff asserts that the only page he visited is the page depicted in Exhibit B of Plaintiff's
Declaration, ECF No. 38-2, which is the Ticketmaster page where Plaintiff attempted to purchase
tickets for the Counting Crows concert. (Egan Deel. Ex. B, ECF No. 38-2.) This page includes the
message: "Sorry we don't have any accessible seating available at the moment." (Id.) Because
accessible seats were unavailable, Plaintiff was unable to continue to another page. (Egan Deel.,
ECF No. 38, ~ 9.) The Terms of Use disclosure is not visible in Exhibit B (although the photo does
not show the bottom of the webpage), and Defendant has not submitted a screenshot of this page
into the record.

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Although David Han's Declaration states that "virtually all" pages include the Terms of
Use disclosure, virtually all does not mean all, and the Court has no record evidence to conclude
that the disclosure was necessarily present on this page when Plaintiff viewed it. In fact, the only
similar exhibit submitted by Defendant is Exhibit M to David Han's Declaration, which is a
screenshot of the "Event Info" page for a Rob Delaney comedy show on May 12, 2012, which
appears to the Court to be from the mobile version of the website. (Han Deel. Ex. M, ECF No. 3517.) Crucially, Exhibit M does not include the Terms of Use disclosure at the bottom of the page.
(Id.) Accordingly, based on the evidence ofrecord, the Court cannot conclude that Plaintiffs visits

to this page on March 28 and 29, 2017, bound him to Defendant's Terms of Use.
Even if the Terms of Use disclosure was present on this page, this alone would not be
enough to evidence an agreement to arbitrate, because Defendant has not established that Plaintiff
"continued past" the page shown in Plaintiff's Exhibit B, or had previously navigated past a page
containing the Terms of Use disclosure in order to reach the page in Exhibit B. That is, Defendant
has not demonstrated that Plaintiff actually consented to the Terms of Use by interacting with the
website. Defendant asserted during oral argument that the Court could presume that after Plaintiff
arrived at Ticketmaster's website through the link on the Counting Crows Facebook page, he
would have had to click something to receive the message, "Sorry we don't have any accessible
seating available at the moment." (See Egan Deel. Ex. B, ECF No. 38-2.) This click (perhaps to
request accessible seating), according to Defendant, would constitute "continuing past" the initial
page and would bind Plaintiff to the Terms of Use. But Defendant has not demonstrated that
Plaintiff necessarily clicked anything-none of the exhibits show a Ticketmaster page that Plaintiff
would have had to have seen immediately before the page depicted in Exhibit B. Defendants'
exhibits are of no help in this regard, since none of them pertain to the actual page or pages

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Plaintiffs Complaint alleges that he visited on March 28 and 29, 2017. 8 Accordingly, considering
the evidence in the record, the Court cannot conclude that there necessarily was a valid agreement
to arbitrate based on Plaintiffs 2017 purchase attempt.

D. Arbitration Delegation Clause
Defendant asserts that because the arbitration prov1s1on contains a delegation clause
providing that the arbitrator shall decide the arbitrability of this dispute, the Court's inquiry is
limited to whether Defendant's assertion of arbitrability is "wholly groundless." (Def. 's Reply to
Pl.'s Resp., ECF No. 40, at 1-3.) Defendant is incorrect. For the Court to apply the delegation
clause, it would first need to detennine that the parties agreed to arbitrate. See, e.g., Guidotti, 716
F.3d at 771, 773. Given the Court's conclusion that there is not sufficient evidence in the record
to support a finding that there was an agreement to arbitrate, there is similarly not sufficient
evidence that the parties agreed to delegate the issue of arbitrability of a particular dispute to an
arbitrator. 9

8

The Court notes that in his Complaint, Plaintiff alleges that he entered the presale code "CROWS 17" into
Defendant's website. (Compl., ECF No. I,~ 20.) But evidence that in doing so, Plaintiff necessarily "continued
past" a page containing the Terms of Use disclosure is similarly missing from the record.
9
But, given the large evidentiary (and logical) gaps in the record advanced by Defendant as the Court has noted
above, the Court also concludes that Defendant's argument to compel arbitration is "wholly groundless.'' Defendant
controls all of the electronic information that would back up its arguments, and for the reasons noted, what it has
advanced fails to demonstrate the existence of an actual agreement to arbitrate anything. From where the Court sits,
that does make the argument that Plaintiff actually (as opposed to "could have," or "might have") agreed to send any
question to an arbitrator "wholly groundless."

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Case 2:17-cv-00445-MRH

IV.

Document 46 Filed 03/12/18 Page 13 of 13

Conclusion
For the reasons stated in this Opinion, Defendant's Motion to Compel Arbitration, ECF

No. 35, is denied.
An appropriate Order will issue.

Mark R. Hornak
United States District Judge
Dated: March 12, 2018
cc: All counsel of record

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