In Heckman v Live Nation Entertainment, Inc., No. 23-55770 (9th Cir. Oct. 28, 2024), the Ninth Circuit revisited Live Nation and Ticketmaster’s arbitration clause and class action waiver after having upheld a previous version last year. Oberstein v. Live Nation Entertainment, Inc., 60F. 4th 505 (9th Cir. 2023). Live Nation and Ticketmaster’s latest attempt to contain burgeoning consumer litigation involves an effort to curtail what is known as “mass arbitration” — the practice of plaintiff-side attorneys whose clients are bound by class action waivers to inundate defendants with many individual small-stakes consumer claims in arbitration. Ultimately, the Ninth Circuit upheld the decision by Judge George H. Wu of the Central District of California to deny Defendants’ motion to compel arbitration, finding the delegation clause as well as the arbitration procedures procedurally unconscionable “to an extreme degree,” and substantively unconscionable to a “substantial degree” under California law. At bottom, the panel pushed back on what it appears to have viewed as an attempt by Live Nation and Ticketmaster to “have their cake and eat it too” by imposing barriers to multiple arbitrations after having succeeded in precluding the most likely alternative—a class action.Continue Reading The Ninth Circuit Criticizes Mass Arbitration Models

On August 13, 2012, another California Court of Appeal recognized that Gentry v. Superior Court, 42 Cal.4th 443 (2007) has been “discredited” by the U.S. Supreme Court’s expansive landmark decision in AT&T Mobility, Inc. v. Concepcion, 131 S. Ct. 1740 (2011) holding the Federal Arbitration Act preempts state laws refusing to enforce arbitration agreements with class action waivers. See Truly Nolen of America v. Superior Court, D060519, 2012 Cal. App. LEXIS 871 (2012). Gentry, a pre-Concepcion opinion, established a rule effectively invalidating most class action waivers contained in arbitration provisions based on certain state statutory rights. The Truly Nolen decision expressly joined the emerging “majority view” in recognizing that the FAA preempts Gentry, “Based on Concepcion’s expansive language and its clear mandate that arbitration agreements must be enforced according to their terms despite a state’s policy reasons to the contrary.”
Continue Reading Another California Court of Appeal Rules That Concepcion Discredits Gentry’s Rule Invalidating Most Class Action Waivers In Arbitration Provisions