Ticketmaster Says Customers Suing Over Scalping Bought Ticket Out of Class Action

Ticketmaster has turned to the fine print in order to save itself from a putative class action that alleges the company actively encourages the sale of tickets on the secondary market. 

Allen Lee is among ticket buyers now suing Ticketmaster and its parent, Live Nation, after undercover reporters from Canada’s CBC and the Toronto Star detailed how Ticketmaster facilitates scalpers in order to gain a second cut on sales. The lawsuit claims violations of the Cartwright Act, California Penal Code and unfair and fraudulent business practices.

To head off any situation where plaintiffs may gang up on the company in open court, Ticketmaster now points in a brief filed Friday (read here) to the “clickwrap” terms of use that Lee assented to when purchasing secondary tickets to numerous sporting events. The defendants maintains that “the applicable Terms contained a provision by which Plaintiffs expressly agreed to submit their claims to binding arbitration, and waive any right to a jury trial or to participate in a class action.”

Ticketmaster argues that such terms of use constitute a valid, enforceable agreement and that the arbitration clause encompasses the dispute at issue.

Lee’s “claims plainly relate to ‘products or services sold or distributed by [Ticketmaster] or through [Ticketmaster],’ within the meaning of the ticketmaster.com Terms of Use,” argue the company’s lawyers at Latham & Watkins.

Most courts have upheld clickware agreements so long as they are conspicuous enough, although Spotify lost a ruling a couple years ago for the unconscionable way it had modified terms without proper notice. Plaintiffs lawyers will now argue against compelled arbitration, while renewed attention to Ticketmaster’s alleged cooperation with scalpers has some calling for new legislation.