Live Nation has asked a U.S. appeals court to undo a decision last month which ruled that the entertainment giant will no longer be able to force consumers to arbitrate their antitrust claims, claiming that the ruling has created “mass uncertainty” regarding mass arbitration.
According to Reuters, Live Nation filed a petition for the three-judge panel to reconsider the ruling, noting that the Federal Arbitration Act does not apply when companies subject customers to problematic consolidated proceedings. The panel said that Live Nation’s contract is “unenforceable” under a 2005 California decision known as Discover Bank, which said class-wide litigation is “unconscionable.” Now, the company argues in the petition that the panel’s Discover Bank holding “threatens extreme consequences.”
While private arbitration has worked for the ticketing giant in the past, Ticketmaster changed its chosen arbitrator from a company called JAMS to another company, New Era. Last year, U.S. District Judge George H. Wu rejected the bid by Live Nation and Ticketmaster, noting that the change in arbitrator was an “unfair surprise” for ticket buyers and the forced-arbitration was “procedurally unconscionable.” Additionally, he questioned the power of the mass arbitration process that could group cases together. Wu said this would limit clients’ ability to prove their cases in court.
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It is plain that it would be impossible for plaintiffs to present their claims on equal footing to Live Nation,” Judge William Fletcher wrote for the Ninth Circuit. “Forced to accept Terms that can be changed without notice, a plaintiff then must arbitrate under New Era’s opaque and unfair Rules.”
Judge Morgan Christen and Judge Lawrence VanDyke echoed similar sentiments, with VanDyke noting that the Federal Arbitration Act “does not apply to the type of mass ‘arbitration’ contemplated by Live Nation’s agreements.”
The 9th U.S. Circuit Court of Appeals upheld a lower judge’s 2023 ruling in Heckman v. Live Nation Entertainment last month, which said Live Nation could not enforce contract provisions that required ticket buyers to arbitrate their claims instead of suing them in federal court. The appeals panel called the arbitration rules unfair to consumers, while “overtly” beneficial to defendants.
Live Nation and Ticketmaster are currently targets of an antitrust lawsuit by the Department of Justice, 39 states, and the District of Columbia. The lawsuit alleges monopolistic and anticompetitive practices, aiming to break-up the pair. A trial date is set for March 2026. Additionally, 365 fans across the country have signed onto a new lawsuit against Ticketmaster and its parent company, citing breach of contract, fraud, negligent misrepresentation, negligence, and antitrust violations, as well as a claim that Live Nation violated the Racketeer Influenced and Corrupt Organizations (RICO) Act.
