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Himber v. Live Nation Worldwide Inc.

Plaintiff on Notice of, Assented to, Arbitration Provision in Website's Terms of Use

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MEMORANDUM & ORDER Plaintiff David Himber (“Himber”) brings this putative class action against defendants Live Nation Worldwide, Inc. and Live Nation Marketing, Inc. (collectively, “Live Nation”) for alleged violations of New York General Business Law (“GBL”) §§349 and 350. Live Nation moves to compel arbitration and stay this action pending arbitration. Himber opposes the motion. For the reasons below, the motion is GRANTED.1BACKGROUNDI. Procedural HistoryIn response to the Complaint, Live Nation moved to dismiss. (See Mot. To Dismiss, Docket Entry 21.) That motion was denied. (See July 6, 2017 Minute Order, Docket Entry 27.) Thereafter, Live Nation answered the Complaint, asserting as an affirmative defense that Himber’s claims are subject to mandatory binding arbitration and a class-action waiver. (Ans., Docket Entry 28, 53.) Live Nation again moves to compel arbitration, claiming the parties have an enforceable agreement to arbitrate. (See Mot. to Compel, Docket Entry 62.)II. Factual BackgroundFor purposes of this decision, the background can be summarized as follows. Live Nation operates a website through which customers can purchase online tickets for performances at various entertainment venues, including the Nikon at Jones Beach Theatre at Jones Beach State Park — which Live Nation is licensed to operate. (Compl.

7, 11.) During the past several years, Himber has used Live Nation’s website to buy event tickets online. (Declaration of Kimberly Tobias “Tobias Decl.”, Docket Entry 64, 5.) Himber’s claims arise from his use of the website in June 2016. At that time, Himber entered the website, navigated to the page for a September 1, 2016 Rascal Flatts concert at Jones Beach Theatre, and browsed for tickets. (Compl.

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