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Long v. Live Nation Worldwide, Inc.

United States District Court, W.D. Washington, Seattle

November 8, 2017

BARRY LONG, Plaintiff,
v.
LIVE NATION WORLDWIDE, INC.; and TICKETMASTER LLC, Defendants.

          ORDER

          THOMAS S. ZILLY, UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on defendants' motion to dismiss or to stay and compel arbitration, docket no. 27. Having reviewed all papers filed in support of, and in opposition to, defendants' motion, the Court enters the following Order.

         Background

         Plaintiff Barry Long brings this action against defendants Ticketmaster LLC and its parent company, Live Nation Worldwide, Inc., under the Americans with Disability Act (“ADA”) and Washington's Law Against Discrimination (“WLAD”). Plaintiff alleges that Ticketmaster operates a website, www.ticketexchangebyticketmaster.com, through which tickets for National Football League (“NFL”) games are resold. See Am. Compl. at ¶ 1.2 (docket no. 16). Plaintiff further asserts that, in attempting to purchase tickets to a Seattle Seahawks game at CenturyLink Field on the secondary (or fan-to-fan) market, he encountered barriers while using the website at issue, including the website's failure to provide information about wheelchair-accessible seating that complies with the Department of Justice's 2010 ADA Standards. See id. at ¶¶ 4.5-4.10; see also 28 C.F.R. §§ 35.138 & 36.302. Plaintiff made no purchase via www.ticketexchangebyticketmaster .com, and was not prompted to “click” on the link to, review, or consent to, the website's Terms and Conditions. In moving to dismiss or stay and compel arbitration, defendants explicitly disclaim any reliance on the Terms and Conditions or “browsewrap” agreement on the ticket exchange website. See Defs.' Reply at 7-8 (docket no. 31).

         Instead, defendants contend that plaintiff is required to arbitrate his ADA and WLAD claims relating to the ticket exchange website because he previously used a different website maintained by Ticketmaster, namely www.ticketmaster.com, via which he became bound by a “clickwrap” agreement in connection with his purchases of tickets for several music concerts and baseball games between June 6, 2012, and April 9, 2017. See Defs.' Motion at 2-7 (docket no. 27); Ex. G to Tobias Decl. (docket no. 27-8). From January 27 to October 31, 2012, the Terms of Use on the Ticketmaster website provided as follows:

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 www.livenation.com, or Ticketmaster's website www.ticketmaster.com, as the case may be (collectively, the “Websites”), any statements or advertising on the Websites, your purchase of tickets through the Websites, any fees or other amounts you paid to Live Nation in connection with the purchase of tickets through the Websites, and/or the delivery of tickets to you that you purchased through the Websites;
• claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
• claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
• claims that may arise after the termination of this Agreement.

         Tobias Decl. at ¶ 10 & Ex. H (docket nos. 27-1 & 27-9). From November 1, 2012, to the present, the arbitration provision of the “clickwrap” agreement remained virtually the same, reading in relevant part:

         Any 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, will be resolved by binding arbitration rather than in court, with the following exceptions:

• You may assert claims in small claims court if your claims apply;
• If a claim involves the conditional license granted to you as described in the Ownership of Content and Grant of Conditional License section above, either of us may file a lawsuit in a federal or state court located within Los Angeles County, California, and we both ...

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