This week, Jonathan Hilton of Hilton Parker LLC had the privilege of arguing Paxson v. Live Nation Entertainment, Inc. before a panel of the United States Court of Appeals for the Ninth Circuit—Circuit Judges Sidney R. Thomas, Lucy H. Koh, and Holly A. Thomas. The case arises from the abruptly cancelled 2022 “Lovers & Friends” festival in Las Vegas and a ticket buyer’s effort to recover refunds for herself and others who were left without one. But the questions from the bench reached well beyond a single festival: at its core, the case asks whether the layered online “terms” behind a concert ticket can force consumers out of court and into private arbitration.

Background: A Follow-On to Heckman

The appeal follows on the heels of Heckman v. Live Nation, in which the Ninth Circuit declined to enforce Ticketmaster’s mass-arbitration program as unconscionable. The Supreme Court left that decision in place last fall. With its own arbitration clause unavailable after Heckman, Ticketmaster instead moved to compel arbitration under the terms of use posted on the website of its subsidiary, Front Gate Ticketing Solutions.

Mr. Hilton, who represents appellant Erin Paxson on appeal, argued to the Ninth Circuit that those terms of use are illusory under Nevada law. The company reserved for itself the right to change the terms at any time, effective immediately, and without notice—leaving the consumer bound to arbitrate while the company remained free to walk away from its own promise. A one-sided promise of that kind, the appeal argues, is not the kind of mutual agreement Nevada law requires.

Inside the Argument

The San Francisco courthouse was packed. The Department of Justice’s entire summer intern program came to watch the arguments that day, so there were no spare seats.

The panel pressed both sides closely over the course of the argument. You can watch the entire argument as it was livestreamed:

Press Coverage

The argument drew coverage from outlets following the dispute. TicketNews published its account under the headline “Ninth Circuit Again Presses Live Nation Over Ticket-Buyer Arbitration Terms,” and Law360 covered it under the headline “9th Circ. Judge Pans Live Nation’s ‘Unlawful’ Arbitration Terms.”

Both reports framed Paxson as a notable follow-on to Heckman, observing that—less than a year after the Supreme Court left that decision in place—the Ninth Circuit is once again examining whether the fine print behind a ticket purchase reflects a genuine agreement, or simply a one-sided path out of public court.

What Happens Next

The panel did not rule from the bench. It may affirm the order compelling arbitration, reverse it, or certify the underlying question of Nevada law to the Supreme Court of Nevada.

This post is attorney advertising and is provided for general informational purposes only. It is not legal advice, does not create an attorney-client relationship, and describes a matter that remains pending. Nothing here is a prediction or guarantee of any outcome.