Mitch Oberstein v. Live Nation Ent'm't, Inc. ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MITCH OBERSTEIN; GARY No. 21-56200
MATTY; SOPHIE BURKE, on behalf
of themselves and all those similarly D.C. No. 2:20-cv-
situated, 03888-GW-GJS
Plaintiffs-Appellants,
OPINION
v.
LIVE NATION ENTERTAINMENT,
INC.; TICKETMASTER LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted September 19, 2022
Pasadena, California
Filed February 13, 2023
2 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
Before: Danny J. Boggs, * Kim McLane Wardlaw, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Boggs
SUMMARY **
Arbitration
The panel affirmed the district court’s order compelling
arbitration pursuant to the Federal Arbitration Act and
dismissing an antitrust action brought under the Sherman
Act by a putative class of ticket purchasers against appellees
Ticketmaster LLC and Live Nation Entertainment, Inc.
The ticket purchasers claimed that they paid supra-
competitive fees for tickets on appellees’
websites. Appellees moved to compel arbitration on the
basis of their websites’ terms of use, which included an
arbitration provision. The district court granted the motion,
holding that the terms of use constituted a valid agreement
between the parties and that the requirements for mutual
assent were met.
The panel held that the terms of use were not invalid
under California law for failure to properly identify
appellees as parties to the agreement. The panel concluded
*
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 3
that it was possible for a reasonable user to identify the
parties to the contract based on the terms’ repeated
references to appellees’ common trade names, express
references to “Live Nation Entertainment, Inc.,” and
available avenues that would enable a reasonable user to
identify Ticketmaster’s full legal name.
The panel further held that appellees did not fail to
provide constructive notice of the terms of use. The panel
concluded that the online terms fell between the extremes of
a “clickwrap” agreement, in which a website presents users
with specified contractual terms on a pop-up screen and
users must check a box explicitly stating “I agree” in order
to proceed, and a “browsewrap” agreement, in which a
website offers terms that are displayed only through a
hyperlink and the user supposedly manifests assent to those
terms simply by continuing to use the website. Therefore, a
fact-intensive inquiry, analyzing mutual assent under an
objective-reasonableness standard, was required.
The panel concluded that it need not engage in a detailed
choice-of-law analysis between California and
Massachusetts law because the two states’ laws apply
substantially similar rules. The panel held that an
enforceable agreement may be found where (1) a website
provides reasonably conspicuous notice of the terms to
which the consumer will be bound; and (2) the consumer
takes some action, such as clicking a button or checking a
box, that unambiguously manifests his or her assent to those
terms. The panel held that appellees’ terms of use met this
standard. Appellees’ website contained features sufficient
to provide reasonably conspicuous notice of the terms
because the terms were marked in bright blue font and
distinguished from the rest of the text, and the notices were
located directly on top of or below the action button at each
4 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
of three independent stages that a user was required to
complete before purchasing tickets. And the notices at issue
explicitly alerted the user that by creating an account,
signing in, or purchasing a ticket, and proceeding to the next
page, the user “agrees to our Terms of Use.” Finally, the
panel held the district court did not err in deciding the
constructive notice issue as a matter of law.
COUNSEL
Sanford I. Weisburst (argued), Quinn Emanuel Urquhart &
Sullivan LLP, New York, New York; Kevin Y. Teruya,
Adam B. Wolfson, William R. Sears IV, and Shon Morgan,
Quinn Emanuel Urquhart & Sullivan LLP, Los Angeles,
California; Warren D. Postman and Albert Y. Pak, Keller
Postman LLC, Washington, D.C.; Frederick A. Lorig,
Frederick Lorig APC, Rolling Hills, California; for
Plaintiffs-Appellants.
Sadik H. Huseny (argued), Timothy L. O’Mara, Daniel M.
Wall, Andrew M. Gass, Kirsten M. Ferguson, Alicia R.
Jovais, and Nicholas Rosellini, Latham & Watkins LLP, San
Francisco, California, for Defendants-Appellees.
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 5
OPINION
BOGGS, Circuit Judge:
This appeal arises from a motion to dismiss in favor of
compelled arbitration. Plaintiffs-Appellants represent a
putative class of ticket purchasers (“Ticket Purchasers”)
against Defendants-Appellees Ticketmaster LLC and Live
Nation Entertainment, Inc. (“Appellees”). Ticket Purchasers
sued Appellees in federal district court alleging
anticompetitive practices in violation of the Sherman Act.
Appellees moved to compel arbitration on the basis of their
websites’ terms of use (“Terms”). The court granted the
motion and dismissed the case, holding that the Terms
constituted a valid agreement between the parties and that
the requirements for mutual assent were met. For the
following reasons, we affirm.
I
Plaintiffs-Appellants Mitch Oberstein, Sophie Burke,
and Gary Matty represent the putative class of Ticket
Purchasers who claim they paid supra-competitive fees for
tickets on Appellees’ websites. After Ticket Purchasers
brought suit in federal district court, Appellees moved to
compel arbitration on the basis of a provision contained in
the Terms on their respective websites. The district court
held that the Terms constituted a valid agreement and that
Ticket Purchasers had assented to the Terms, which included
a binding arbitration provision. As a result, the court granted
Appellees’ motion to dismiss.
On appeal, Ticket Purchasers claim that the district court
erred in ordering dismissal. They contest the validity of the
Terms, and, thus, the arbitration agreement, on a number of
6 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
fronts. First, they argue that the Terms are invalid for failing
to properly identify Appellees as parties to the agreement.
Second, they argue that Appellees failed to provide
constructive notice of the Terms under both California and
Massachusetts law. Alternatively, they claim that, even if the
district court did not err in finding constructive notice of the
Terms under California law, it erred in failing to analyze
constructive notice under allegedly more stringent
Massachusetts law as to Plaintiff-Appellant Burke, who is a
citizen of that state. Finally, they argue that the district court
erred in deciding the constructive-notice issue as a matter of
law. 1
II
We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291.
The Federal Arbitration Act (FAA) requires courts to
compel arbitration of claims covered by an enforceable
arbitration agreement. 9 U.S.C. § 3. The FAA limits the
courts’ role to “determining whether a valid arbitration
agreement exists and, if so, whether the agreement
encompasses the dispute at issue.” Lifescan, Inc. v. Premier
Diabetic Servs., Inc., 363 F.3d 1010, 1012 (9th Cir. 2004).
“In determining whether the parties have agreed to arbitrate
a particular dispute, federal courts apply state-law principles
1
Ticket Purchasers advance another argument concerning the scope of
the arbitration provision, but acknowledge that the issue has already been
decided against them by this court. See Oracle Am., Inc. v. Myriad Grp.
A.G., 724 F.3d 1069 (9th Cir. 2013) (holding that a carve-out provision
excepting certain claims from an arbitration provision does not abridge
an otherwise clear and unmistakable delegation of arbitrability questions
to the arbitrator). They seek to preserve this argument for en banc or
Supreme Court review.
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 7
of contract formation.” Berman v. Freedom Fin. Network,
LLC, 30 F.4th 849, 855 (9th Cir. 2022) (citing First Options
of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). Upon
being satisfied of the existence of a valid arbitration
agreement, the court must order the parties to proceed to
arbitration in accordance with the terms of the agreement. 9
U.S.C. § 4. We review de novo a district court’s decision to
grant a motion to compel arbitration. Quackenbush v.
Allstate Ins. Co., 121 F.3d 1372, 1380 (9th Cir. 1997).
A
Ticket Purchasers argue that the Terms are invalid for
failure to properly identify Appellees as parties to the
agreement. Both parties agree that California law governs
the issue. In applying California law, we are bound by the
decisions of the California Supreme Court. Norcia v.
Samsung Telecomms. Am., LLC, 845 F.3d 1279, 1284 (9th
Cir. 2017). If the California Supreme Court has not directly
addressed the issues before us, we will generally abide by
the decision of an intermediate state court, unless we are
convinced that the California Supreme Court would reject it.
Ibid.Under California law, “[i]t is essential to the existence of
a contract that there should be: (1) [p]arties capable of
contracting; (2) [t]heir consent; (3) [a] lawful object; and, (4)
[a] sufficient cause or consideration.” Cal. Civ. Code § 1550.
Furthermore, for a contract to be binding, it is necessary “not
only that the parties to the contract exist, but that it is possible
to identify them.” Jackson v. Grant, 890 F.2d 118, 121 (9th
Cir. 1989) (citing Cal. Civ. Code § 1558).
Upon clicking the “Terms of Use” hyperlink, a user is
directed to a page containing the Terms. The first line reads:
“Welcome! The following are the terms of use (‘Terms’) that
8 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
govern your use of Live Nation and Ticketmaster’s sites and
mobile applications . . . and your purchase, possession, or
use of any Live Nation or Ticketmaster tickets, products, or
services.” The Terms reference Appellees’ common trade
names—“Live Nation” and “Ticketmaster”—nine and seven
times, respectively. The webpages where the Terms appear
are emblazoned with Appellees’ logos.
The full legal name “Live Nation Entertainment, Inc.” is
referenced in the arbitration provision: “To begin an
arbitration proceeding, you must send a letter requesting
arbitration and describing your claim to: Live Nation
Entertainment, Inc., 9348 Civic Center Drive, Beverly Hills,
CA 90210, Attn: General Counsel.” “Live Nation
Entertainment, Inc.” is also identified as the relevant contact
for “questions, comments or complaints.” The full legal
name “Ticketmaster LLC” does not appear in the Terms, but
a user could find it by clicking on the “Purchase Policy” link
contained in the second paragraph of the agreement. 2 A user
could find further information concerning Appellees’
corporate entities by following links located at the bottom of
the Terms webpage.
California law does not require that corporate parties to
a contract use their full legal names. California law requires
only that it be possible for a reasonable user to identify the
parties to the contract. See Cal. Civ. Code § 1558. Here, the
Terms’ repeated references to Appellees’ common trade
names, express references to “Live Nation Entertainment,
Inc.,” and available avenues that would enable a reasonable
2
In a section of the purchase policy titled “Who You Are Buying From,”
the policy informs users that “Ticketmaster LLC” handles the sale of
tickets purchased in the United States.
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 9
user to identify Ticketmaster’s full legal name more than
clear that low bar.
As the district court correctly noted, the facts in the cases
that Ticket Purchasers cite to invalidate the Terms at issue
do not come close to comparing with the facts before us.
Ticket Purchasers first rely on Flores v. Nature’s Best
Distribution, LLC, 212 Cal. Rptr. 3d 284 (Ct. App. 2016). In
Flores, the court refused to enforce an arbitration provision
contained in an employment contract between an
“employee” and the “Company.” Flores, 212 Cal. Rptr. 3d
at 287. The contract consistently used those generic words,
without defining either one. Ibid. A carve-out provision
excepted from the arbitration provision claims that were
covered in a separate “[a]greement between Nature’s Best
and Teamster’s Local 692.” Ibid. Ticket Purchasers point to
that contract’s lone reference to “Nature’s Best” as support
for a party-identification standard that would hold all
references to common names to be insufficient.
Ticket Purchasers misread Flores. The Flores court did
not invalidate the agreement at issue because it occasionally
used a company’s common trade name, but rather because it
repeatedly used, without defining, the generic terms
“employee” and “Company.” Id. at 290–91. Because the
single reference to “Nature’s Best” appeared only in an
entirely separate and unrelated arbitration agreement, the
court did not even consider the issue of whether use of a
common trade name would have been sufficient to identify
Nature’s Best as a party to the agreement. See ibid.
Ticket Purchasers’ reliance on Bouarich v. Comerica
Management Co., 2021 WL 1782995 (Cal. Ct. App. May 5,
2021) is similarly misplaced. The court in Bouarich
invalidated the arbitration agreement at issue because it
10 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
“repeatedly refer[red] to ‘the parties’ . . . but d[id] not define
‘parties.’” Bouarich, 2021 WL 1782995, at *5. Citing
Flores, the court recognized that the agreement failed to give
Bouarich any notice of who she was supposed to arbitrate
her disputes with, emphasizing that “Comerica’s name
appear[ed] nowhere in the agreement.” Ibid.In invalidating those agreements, the courts in Flores
and Bouarich did not take issue with the use of common
trade names. They had no occasion to. The agreements were
deemed invalid because of the consistent use of generic,
undefined terms and the companies’ failure to include any
information that would make identification of the relevant
parties possible. See Flores, 212 Cal. Rptr. 3d at 290–91;
Bouarich, 2021 WL 1782995, at *5. Ticket Purchasers’
attempt to compare the general identifiers at issue in Flores
and Bouarich (“Company”; “parties”) with the ones used in
the Terms here (“us”; “we”; “our”) is unconvincing because,
unlike the agreements in those cases, the Terms here
repeatedly indicate which entities the general terms refer to:
Live Nation and Ticketmaster. 3
Even if California law required the recitation of a
corporate entity’s full legal name, “Live Nation
Entertainment, Inc.” is explicitly referenced multiple times
in the Terms, including in the arbitration clause itself. Ticket
Purchasers concede as much, but claim that the references to
the legal entity are only “ministerial,” reflecting Live Nation
3
The use of these terms (“us,” “we,” and “ours”) along with statements
that the Terms govern any “use of Live Nation and Ticketmaster’s sites”
and all purchases of “Live Nation or Ticketmaster tickets, products, or
services,” forecloses Ticket Purchasers’ argument that the Terms convey
that there is only one ticket-selling entity.
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 11
Entertainment, Inc.’s status as a recipient of notices and
questions rather than as a party to the agreement.
It is difficult to imagine who would be a party to the
arbitration agreement if not, at the very least, the entity
specifically listed as the addressee for the initiation of
arbitration disputes. While it is true that, near the end of the
Terms, there is language stating that “questions, comments
or complaints regarding these Terms” are to be referred to
“Live Nation Entertainment, Inc.,” that reference bolsters
rather than diminishes the already clear identification of Live
Nation Entertainment, Inc. as an interested party concerning
arbitration-related disputes.
Ticket Purchasers further claim that “the fact that a
different entity—Live Nation Worldwide, Inc.—owns the
livenation.com domain name and operates the website”
further supports the idea that Live Nation Entertainment, Inc.
is a mere recipient of notices and questions. The Terms,
however, “govern [the] use of Live Nation and
Ticketmaster’s sites and mobile applications . . . and [the]
purchase, possession, or use of any Live Nation or
Ticketmaster tickets, products, or services.” The collective
terminology (“we”; “us”) used throughout the agreement can
reasonably be understood as referring to any Live Nation or
Ticketmaster ticket-selling entity operating under the “Live
Nation Entertainment, Inc.” banner. This would naturally
include Ticketmaster LLC, the Ticketmaster entity
responsible for selling tickets in the United States.
Ticket Purchasers effectively ask this court to impose a
requirement that parties to an arbitration agreement identify
themselves in the contractual document by their full legal
names. However, they fail to produce any authority,
mandatory or persuasive, demanding as much. While the
12 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
cases Ticket Purchasers cite establish a floor for what level
of identification is insufficient, the agreements at issue rise
stories above it.
Between the Terms’ repeated references to Appellees’
common trade names, the express references to “Live Nation
Entertainment, Inc.,” and the fact that identification of
“Ticketmaster LLC” was not unduly difficult, it was
reasonably possible for Ticket Purchasers to identify
Appellees as parties to the agreement. Because that is all that
California law requires, see Cal Civ. Code § 1558, we affirm
the district court’s holding that the Terms adequately
identified Appellees as parties to the agreement.
B
Ticket Purchasers next argue that Appellees failed to
provide constructive notice of the Terms under both
California and Massachusetts law. Concerning the latter,
they contend that the district court erred in failing to analyze
Plaintiff-Appellant Burke’s claims under Massachusetts’s
more stringent standard. Ticket Purchasers finally argue that
the district court erred in deciding the constructive-notice
issue as a matter of law.
1. California vs. Massachusetts Law
To form a contract under California or Massachusetts
law, there must be actual or constructive notice of the
agreement and the parties must manifest mutual assent.
Berman, 30 F.4th at 855; see Kauders v. Uber Techs. Inc.,
159 N.E.3d 1033, 1049 (Mass. 2021) (“[F]or there to be an
enforceable contract, there must be both reasonable notice of
the terms and a reasonable manifestation of assent to those
terms.” (citing Specht v. Netscape Commc’ns Corp., 306
F.3d 17, 35 (2d Cir. 2022))). With the rapid growth of the
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 13
internet and e-commerce, courts have been required to apply
these traditional contract principles to novel forms of
agreement. See Berman, 30 F.4th at 855–56 (“[E]lemental
principles of contract formation apply with equal force to
contracts formed online.”); Kauders, 159 N.E.3d at 1048
(“The touchscreens of Internet contract law must reflect the
touchstones of regular contract law.”).
The first and “most straightforward application of these
principles . . . involves so-called ‘clickwrap’ agreements, in
which a website presents users with specified contractual
terms on a pop-up screen and users must check a box
explicitly stating ‘I agree’ in order to proceed.” Berman, 30
F.4th at 856 (citing Nguyen v. Barnes & Noble, Inc., 763
F.3d 1171, 1175–76 (9th Cir. 2014)). Courts routinely find
clickwrap agreements enforceable. Ibid. (citing Meyer v.
Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir. 2017)). “At the
other end of the spectrum are so-called ‘browsewrap’
agreements, in which a website offers terms that are
disclosed only through a hyperlink and the user supposedly
manifests assent to those terms simply by continuing to use
the website.” Ibid. (citing Nguyen, 763 F.3d at 1176). Courts
are generally reluctant to enforce such agreements because
they often leave users “unaware that contractual terms were
even offered, much less that continued use of the website
will be deemed to manifest acceptance of those terms.” Ibid.(citing Nguyen, 763 F.3d at 1178). When an online
agreement falls between these two extremes, courts analyze
mutual assent under an objective-reasonableness standard.
See id. at 856–58 (conducting a fact-intensive inquiry to
determine whether a non-clickwrap agreement met an
objective standard of mutual assent); Kauders, 159 N.E.3d
at 1049 (citing Meyer, 868 F.3d at 76) (same).
14 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
Ticket Purchasers rely primarily on Kauders for the
proposition that Massachusetts law imposes a more stringent
standard than California law on the issue of constructive
notice. In Kauders, after a group of registered users brought
suit against Uber, Uber sought to compel arbitration based
on an agreement contained in its mobile application’s terms
of use. Id. at 1038–39. To determine whether the users had
constructive notice of the agreement, the Massachusetts
Supreme Judicial Court adopted the reasonableness test laid
out in Ajemian v. Yahoo!, Inc., 987 N.E.2d 604, 611–12
(Mass. App. Ct. 2013). Kauders, 159 N.E.3d at 1049 (“We
conclude that [the Ajemian] test . . . is the proper framework
for analyzing issues of online contract formation.”). The
two-part Ajemian test, requiring “[1] reasonable notice of the
terms and [2] a reasonable manifestation of assent to those
terms,” was itself borrowed from Specht, a Second Circuit
decision that applied California law. See ibid. (citing
Ajemian, 987 N.E.2d at 611–12) (quoting Specht, 306 F.3d
at 35).
Ticket Purchasers claim that Kauders did not merely
apply the California-based framework to a new set of facts,
but rather articulated a new standard that, absent clickwrap,
it will be difficult for the offeror to carry its burden to show
that the user assented to the terms.
Kauders did not break any new legal ground. Rather,
there, the Massachusetts Supreme Judicial Court engaged in
the same “fact-intensive inquiry” as have other courts,
including this one, that apply the reasonableness test.
Kauders 159 N.E.3d at 1050–51 (citing Meyer, 868 F.3d at
76); cf. Berman, 30 F.4th at 855–56 (finding that “New York
and California apply substantially similar rules for
determining whether the parties have mutually assented to a
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 15
contract term” before conducting a fact-intensive inquiry)
(cleaned up).
That “it will be difficult for the offeror to carry its
burden” in cases involving non-clickwrap websites does not
reflect a novel standard, but rather the same sort of common-
sense factual conclusion made by courts applying the
reasonableness framework to the spectrum of online
agreements. See Kauders, 159 N.E.3d at 1051. Thus, while
clickwrap represents “the clearest manifestations of assent”
and is “certainly the easiest method of ensuring the terms are
agreed to,” it is “not necessarily required.” Id. at 1050
(internal quotations marks omitted) (quoting Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 237–38 (2d Cir. 2016)).
And where clickwrap is not employed, “courts must again
carefully consider the totality of the circumstances, and
assent may be inferred from other action the users have
taken.” Id. at 1051.
In Berman, the Ninth Circuit engaged in the same sort of
fact-intensive inquiry, noting that the webpage agreement at
issue did not fall neatly into either the clickwrap or
browsewrap categories. The Berman court employed a
materially indistinguishable two-part test that is used by both
California and New York courts, which requires (1)
reasonably conspicuous notice and (2) an unambiguous
manifestation of assent. Compare Berman, 30 F.4th at 856
(citing Meyer, 868 F.3d at 75), with Kauders, 159 N.E.3d at
1049 (requiring “reasonable notice of the terms and a
reasonable manifestation of assent to those terms”). After
pointing out that clickwrap agreements are routinely found
enforceable and represent “[t]he most straightforward
application of these principles,” the court went on to analyze
the non-clickwrap agreement there under the objective,
totality-of-the-circumstances standard. Berman, 30 F.4th at
16 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
856–58 (ultimately finding both a lack of reasonable
constructive notice and of unambiguous manifestation of
assent).
Ticket Purchasers rely on a set of unpublished California
district court decisions holding that a First Circuit decision,
Cullinane v. Uber Technologies, Inc., 893 F.3d 53 (1st Cir.
2018), sets a higher standard than the standard set under
California law. According to Ticket Purchasers, Cullinane is
based on Massachusetts law, and therefore, Ticket
Purchasers allege, Massachusetts law sets a standard higher
than California law. We disagree. The district court
decisions—Lee v. Postmates Inc., No. 18-cv-03421-JCS,
2018 WL 4961802, at *4 (N.D. Cal. Oct. 15, 2018), and West
v. Uber Technologies, No. 18-cv-3001-PSG-GJS, 2018 WL
5848903, at *4 (C.D. Cal. Sept. 5, 2018)—did not state that
Cullinane departed from Ninth Circuit reasoning in applying
the two-part reasonableness test. While those cases took
issue with Cullinane’s application of the prevailing legal
framework, the framework itself remained the same.
Cullinane, 893 F.3d at 61–62 (“[W]e apply the principles
stated in Ajemian.”); see also Sellers v. JustAnswer LLC, 289
Cal. Rptr. 3d 1, 24 (2021) (acknowledging Cullinane’s
anomalous result but noting that the court there “appl[ied]
the same substantive law”). 4 Thus, although some California
district courts consider Cullinane a deviation from existing
law, the result there can be explained by the fact that “the
inquiry has always been context- and fact-specific.” Bekele
v. Lyft, Inc., 918 F.3d 181, 187 (1st Cir. 2019); see also
Meyer, 868 F.3d at 76 (“[R]easonable minds could disagree
4
For its part, the First Circuit, in Bekele v. Lyft, Inc., 918 F.3d 181, 187
(1st Cir. 2019), noted that “Cullinane did not substantial[ly] change the
applicable law.
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 17
regarding the sufficiency of notice.” (citing Nicosia, 834
F.3d at 237)).
In expressly adopting the Ajemian test, the
Massachusetts Supreme Judicial Court aligned
Massachusetts law with Second Circuit precedent, which, in
turn, was based on California law. While the fact-intensive
inquiry required under the two-part reasonableness test may
lead to different results as courts encounter novel fact
patterns, the general legal framework remains unchanged.
As California and Massachusetts law apply “substantially
similar rules,” we need not engage in a detailed choice-of-
law analysis. See Berman, 30 F.4th at 855 (first quoting
Meyer, 868 F.3d at 74; and then citing Nguyen, 763 F.3d at
1175).
2. Constructive Notice
As discussed above, an enforceable agreement may be
found where “(1) the website provides reasonably
conspicuous notice of the terms to which the consumer will
be bound; and (2) the consumer takes some action, such as
clicking a button or checking a box, that unambiguously
manifests his or her assent to those terms.” Id. at 856 (citing
Meyers, 868 F.3d at 75); see also Kauders, 159 N.E.3d at
1049.
To satisfy the first part of the test, “a notice must be
displayed in a font size and format such that the court can
fairly assume that a reasonably prudent Internet user would
have seen it.” Berman, 30 F.4th at 856 (first citing Specht,
306 F.3d at 30; and then citing Nguyen, 763 F.3d at 1173).
This court looks to “the conspicuousness and placement of
the ‘Terms of Use’ hyperlink, other notices given to users of
the terms of use, and the website’s general design” in
determining “whether a reasonably prudent user would have
18 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
inquiry notice of a browsewrap agreement.” Nguyen, 763
F.3d at 1177.
The second part of the test—whether the user takes some
action that unambiguously manifests assent—is relatively
straightforward. “A user’s click of a button can be construed
as an unambiguous manifestation of assent only if the user
is explicitly advised that the act of clicking will constitute
assent to the terms and conditions of an agreement.”
Berman, 30 F.4th at 857 (citing Specht, 306 F.3d at 29–30).
“[T]he notice must explicitly notify a user of the legal
significance of the action she must take to enter into a
contractual agreement.” Id. at 858.
Appellees’ Terms are not pure clickwrap because they
do not, upon some user action, request that users click on a
box to confirm agreement before proceeding. Nor are they
pure browsewrap, as they are not hidden in links located at
the bottom of webpages. Rather, they lie somewhere in
between. For the following reasons, we conclude that
Appellees did enough to provide constructive notice of the
Terms.
At three independent stages—when creating an account,
signing into an account, and completing a purchase—
Ticketmaster and Live Nation webpage users are presented
with a confirmation button above which text informs the user
that, by clicking on this button, “you agree to our Terms of
Use.” To sign into an account, for example, a user must click
the “Sign in” button, directly above which is language
stating: “By continuing past this page, you agree to the
Terms of Use.” Similarly, to place an order, a user must click
on the “Place Order” button, directly above which is
language stating: “By continuing past this page and clicking
‘Place Order’, you agree to our Terms of Use.” The “Terms
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 19
of Use” hyperlink is written in bright blue font,
distinguishing it from the surrounding text. By clicking on
the blue “Terms of Use” text, users are transferred to a
separate webpage containing the Terms, which contains an
arbitration provision.
We agree with the district court that a reasonable user
would have seen the notice and been able to locate the Terms
via hyperlink. Appellees’ notice is conspicuously displayed
directly above or below the action button at each of three
independent stages that a user must complete before
purchasing tickets. The language “By continuing past this
page and clicking [the button], you agree to our Terms of
Use” clearly denotes “that continued use will act as a
manifestation of the user’s intent to be bound.” See Nguyen,
763 F.3d at 1177. And, crucially, the “Terms of Use”
hyperlink is conspicuously distinguished from the
surrounding text in bright blue font, making its presence
readily apparent. Based on these features, this court and
several others have held that these very same Ticketmaster
and Live Nation websites have designs that provide
constructive notice of the Terms. See, e.g., Dickey v.
Ticketmaster LLC, 2019 WL 9096443 (C.D. Cal. Mar. 12,
2019); Nevarez v. Forty Niners Football Co., 2017 WL
3492110 (N.D. Cal. Aug. 15, 2017).
Ticket Purchasers argue that none of these cases is
binding and point us to two recent cases, Berman and Sellers,
that invalidated online agreements on grounds of lack of
constructive notice. Applying the standard two-part test,
Berman found the hybrid agreement at issue to be invalid for
failing to include features that would alert a reasonable user
to its existence. Berman, 30 F.4th at 857. In conducting the
fact-intensive inquiry, the court emphasized that the text
disclosing the existence of the terms was printed in an
20 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
inconspicuous tiny gray font and found that the mere
underlining of hyperlinked terms and conditions was
“insufficient to alert a reasonably prudent user that a
clickable link exists.” Ibid. It noted, however, that
“[c]ustomary design elements denoting the existence of a
hyperlink include the use of a contrasting font color
(typically blue) . . . which can alert a user that the particular
text differs from other plain text in that it provides a clickable
pathway to another webpage.” Ibid.
In Sellers, a California appellate court similarly found a
hybrid agreement invalid because of the enforcing party’s
failure to provide reasonably conspicuous notice of the
agreement. There, too, the court emphasized the
insufficiency of merely underlining a hyperlink to an
agreement, stating that it was “not set apart in any other way
that may draw the attention of the consumer, such as with
blue text or capital letters.” Sellers, 289 Cal. Rptr. 3d at 29.
The court also considered “the context of the transaction”
and the placement of the notice. Ibid. (citing Meyer, 868 F.3d
at 80). Unlike a user who signs up for an account and “clearly
contemplate[s] some sort of continuing relationship,” the
users of the website at issue were merely attempting to start
a free trial, making it less likely that they would “scrutin[ize]
the page for small text outside the payment box or at the
bottom of the screen linking them to 26 pages of contractual
terms.” Ibid.Rather than support the invalidation of the Terms at
issue, the principles laid out in Berman and Sellers support
the district court’s holding that Appellees’ websites
contained features sufficient to provide reasonably
conspicuous notice of the Terms. In contrast with the
agreements invalidated in Berman and Sellers, the Terms
here were marked in bright blue font and distinguished from
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 21
the rest of the text. The notices were not buried on the bottom
of the webpage or placed outside the action box, but rather
were located directly on top of or below each action button.
And, in contrast with the noncommittal free trial offered in
Sellers, the context of this transaction, requiring a full
registration process, reflected the contemplation of “some
sort of continuing relationship” that would have put users on
notice for a link to the terms of that continuing relationship.
See ibid.We find it worth emphasizing that while Appellees’
Terms meet the reasonably conspicuous standard, this
hybrid form of agreement is not without its risks and invites
second-guessing. See Berman, 30 F.4th at 868 n.4 (Baker, J.,
concurring). To ensure that an online agreement passes
muster, clickwrap is the safest choice. However, guided by
the principles set forth by this court and other courts across
this country, we hold that, under the undisputed facts here,
the Appellees presented their Terms so as to be reasonably
conspicuous to the average user.
The second part of the analysis—whether the user took
some action that unambiguously manifested the user’s assent
to the agreement—is straightforward on these facts. Ticket
Purchasers do not contest that the notices at issue explicitly
alert the user that by creating an account, signing in, or
purchasing a ticket, and proceeding to the next page, the user
“agrees to our Terms of Use.” As the Berman court
emphasized, that is all that is required. Id. at 858 (“[The]
notice defect could easily have been remedied by including
language such as, ‘By clicking the Continue >> button, you
agree to the Terms & Conditions.’” (citing Meyer, 868 F.3d
at 78–80)).
22 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
Because the Ticketmaster and Live Nation websites
provided reasonably conspicuous notice of the Terms to
which Ticket Purchasers unambiguously manifested assent,
we hold that the district court did not err in determining that
the Terms, including the arbitration provision, were valid
and binding.
3. Constructive Notice as a Matter of Law
As a final matter, Ticket Purchasers argue that the district
judge erred in finding constructive notice as a matter of law.
Specifically, they contend that the district court failed to
consider Ticket Purchasers’ discovery evidence and
erroneously relied on Appellees’ screenshots, which they
claim did not accurately capture the Ticket Purchasers’
experience. Citing the Federal Arbitration Act, 9 U.S.C. § 4,
they claim that this case should have gone to trial on the issue
of constructive notice.
In response to a motion to compel arbitration the district
court must “hear the parties.” Hansen v. LMB Mortg. Servs.,
Inc., 1 F.4th 667, 672 (9th Cir. 2021) (quoting 9 U.S.C. § 4).
A district court considering such a motion must “give to the
opposing party the benefit of all reasonable doubts and
inferences that may arise.” Three Valleys Mun. Water Dist.
v. E.F. Hutton & Co., 925 F.2d 1136, 1141 (9th Cir. 1991)
(quoting Par–Knit Mills, Inc. v. Stockbridge Fabrics Co.,
636 F.2d 51, 54 (3d Cir. 1980)). “If the court is satisfied that
the making of the agreement for arbitration or the failure to
comply therewith is not in issue, the court shall make an
order directing the parties to proceed to arbitration in
accordance with the terms of the agreement.” Hansen, 1
F.4th at 672 (internal quotation marks omitted) (quoting 9
U.S.C. § 4). Although mutual assent is generally a question
of fact, whether a certain set of facts is sufficient to establish
OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. 23
a contract is a question of law. Long v. Provide Commerce,
Inc., 245 Cal. Rptr. 3d 117, 123–24 (2016); see also Sellers,
289 Cal. Rptr. 3d at 23 (“Because the threshold issue of the
existence of a contract is for the courts to decide, the issue
of conspicuousness is typically characterized as a question
of law.”). Thus, where the authenticity of screenshots is not
subject to factual dispute, courts may decide the issue as “a
pure question of law.” Long, 245 Cal. Rptr. 3d at 123–24.
The district court did not err in deciding the constructive
notice issue as a matter of law. While Ticket Purchasers
claim that the district court relied on incomplete excerpts of
the webpages, there is no dispute that the webpages
themselves contained the notices, that the notices linked to
the Terms, and that the Terms contained the arbitration
provision. The features of the webpages on which the district
court based its holding—the color, placement, language, and
repetition of the notices—are all features on which courts,
including this one, have relied in determining constructive
notice as a matter of law. See, e.g., Berman, 30 F.4th at 858;
Nguyen, 763 F.3d at 1180.
Ticket Purchasers also argue that the district court
erroneously failed to consider their expert and deposition
testimony. In doing so, they conflate what is necessarily a
fact-intensive inquiry with the existence of a material factual
dispute. Even assuming that the discovery testimony was as
damning as Ticket Purchasers claim, it could not mitigate the
uncontested existence of features that, by themselves,
establish constructive notice as a matter of law. When
uncontested features of a webpage meet the baseline
requirements for constructive notice, additional evidence of
subjective intent is not required for a court to determine that
constructive notice exists. Because that is what happened
24 OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC.
here, the district court did not err in finding that constructive
notice was established as a matter of law.
AFFIRMED.