CONSPICUOUS NOTICE.
In a putative antitrust class action, plaintiffs sued Live Nation Entertainment, Inc./Ticketmaster LLC for charging "supra-competitive fees" for tickets to events. Defendants moved successfully to compel arbitration in the trial court, and the Ninth Circuit affirmed. Oberstein et al v. Live Nation Entertainment, Inc. et al (9th Cir. 2/13/23) (Boggs, Wardlaw, Ikuta).
Two BigLaw firms squared off against one another in the appeal to address an issue that will be familiar to readers of this blog: whether an agreement on the internet that fell somewhere between a click-wrap and a browserwrap was sufficient to create an agreement between the consumer and the seller. As a refresher, see our post dated 3/26/2016: Internet contracts “come primarily in two flavors: ‘clickwrap’ (or ‘click-through’) agreements, in which website users are required to click on an ‘I agree’ box after being presented with a list of terms and conditions of use; and ‘browsewrap’ agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen,” quoting from Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014)."
Here, the court concluded that the agreement sufficiently noticed the consumer that the consumer was agreeing to arbitrate: the font was conspicuous, in color other than the rest of the text, near buttons the consumer had to click on, and by clicking on buttons and proceeding through the process of purchasing the ticket, the consumer evidenced consent.
COMMENT: The keys to a binding agreement in internet commerce are reasonably conspicuous notice of the arbitration agreement and action by the consumer to unambiguously manifest consent. That's enough to impart constructive notice.
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