Yesterday, the Ninth Circuit issued an opinion in Heckman v. Live Nation Entertainment, where it affirmed a district order denying a motion to compel mass arbitration of a consumer antitrust class action about online ticket sales practices by Live Nation and Ticketmaster.
Finding the arbitration agreement “borderline unintelligible,” the panel majority held that both the delegation clause and the arbitration agreement as a whole were unconscionable and unenforceable under California law. As an alternate ground for affirmance, though the majority held that “the FAA simply does not apply to and protect the mass arbitration model” contained in the agreement, and thus that California’s prohibition on class action waivers was not preempted in this circumstance. Recognizing that the Supreme Court’s decision in Concepcion was based on the “fundamental” bilateral nature of arbitration, the panel found that the FAA did not preempt California law in cases involving mass arbitration agreements.
Concurring, Judge VanDyke would only have addressed the second issue–agreeing that the FAA does not apply to arbitration agreements that, like the one at issue, provide for mass arbitration.
