18th Annual Workplace Class Action Report - 2022 Edition

640 Annual Workplace Class Action Litigation Report: 2022 Edition since there was no evidence that Plaintiffs "availed themselves" of Defendant’s service agreement prior to or in the course of litigation or "received any benefit under that agreement," they were not equitably estopped from rejecting its arbitration clause. Id . at 767. For these reasons, the Third Circuit affirmed the District Court’s ruling denying Defendant’s motion to compel arbitration. Oberstein, et al. v. Live Nation Entertainment, Inc., 2021 U.S. Dist. LEXIS 200094 (C.D. Cal. Sept. 20, 2021). Plaintiffs filed a putative nationwide class action against Defendants Ticketmaster LLC and Live Nation Entertainment, Inc. ("Defendants") alleging various anticompetitive practices in violation of § § 1 and 2 of the Sherman Antitrust Act. Defendants filed a motion to compel arbitration of Plaintiffs’ claims pursuant to an arbitration agreement contained in their website’s terms of use ("TOU"), which every user had to accept in order to make an account, sign into the account, or purchase a ticket. The Court granted the motion. Plaintiffs alleged that they had never seen or read the TOU or noticed the language stating that they agreed with the TOU by taking actions on the website. Id . at *5. First, the Court noted that case law authorities had compelled arbitration of claims against Defendants based on the very same websites as involved in this matter. Plaintiffs initially argued that the Defendants’ TOU did not properly identify the specific parties, instead relying on ambiguous words like "us," "we," and "our." Id . at *8. d The Court held that the TOU were not invalid for failing to identify the contracting corporate entity or party, as under California law, contracts do not need to repeatedly recite the full corporate entity name in order to bind parties, it simply needs to make it possible to identify them. Id . at *9. Here, the Court determined that the TOU were housed on Defendants’ websites, which included information about Defendants. Further, Plaintiffs claimed that they never agreed to the TOU while purchasing their tickets and they had no actual knowledge of the terms and never noticed the links to the TOU. Id . at *11. The Court explained that Defendants’ webpages had designs that provide constructive notice of the TOU such that the user manifested assent by completing the account creation process, signing-in to an account, or completing a purchase. The Court held that the text was sufficiently conspicuous, in different colored font, and required a user to click to access the TOU. The Court thus concluded that Defendants’ websites provided sufficient constructive notice as required for mutual assent. In addition, Plaintiffs argued that their claims fell into the conditional license exception located in the TOU, which was granted to users to view the site and its contents as long as the users agreed not to engage in certain behavior, like sending viruses or using automated bots. Id . at *21. The Court agreed with Defendants’ position that whether the conditional license exception applied was a question that was delegated to the arbitrator based on the agreement’s delegation provision. Finally, Plaintiffs asserted that the delegation clause and arbitration clause in the Defendants’ TOU were unenforceable as unconscionable. The Court found that the agreements were neither substantively or procedurally unconscionable so as to invalidate the delegation clause. For these reasons, the Court granted Defendants’ motion to compel arbitration. Ohanian, et al. v. Apple, Inc., 2021 U.S. Dist. LEXIS 43852 (S.D.N.Y. March 9, 2021). Plaintiffs, several mobile cellular phone customer, filed a class action alleging that Defendants engaged in fraudulent omissions and false representations relative to the data privacy and security of its mobile devices. T-Mobile and Apple moved to compel arbitration of the claims based on the arbitration provision contained in T-Mobile’s terms and conditions. After Defendants filed their motions, Plaintiff Lopez filed a notice of voluntary dismissal of his claims against T-Mobile. The Court denied Apple’s motion and reserved ruling on T-Mobile’s motion to compel Plaintiff Ohanian to arbitration her claims. Plaintiffs asserted that they received messages and calls meant for someone else through Apple’s iMessage and FaceTime apps after T-Mobile had reassigned and recycled old numbers. When Plaintiffs opened prepaid cellular phone accounts with T-Mobile, it was T-Mobile’s practice to provide prepaid customers with a Prepaid Service Confirmation Form (the "Form"), which stated that by activating or using T-Mobile’s services, they were accepting T-Mobile’s Terms and Conditions ("T&Cs"), which included an arbitration provision. T-Mobile contended that the Form provided Plaintiff Ohanian with notice of the T&Cs, including the arbitration provision, and that Ohanian accepted those contractual terms when he purchased the T-Mobile SIM card and activated his line of service. Id . at *9. Plaintiff Ohanian attested that at the time of his purchase, he received only a receipt and did not receive the Form or any information indicating that he was accepting or agreeing to the T&Cs. The Court found that Plaintiff Ohanian’s receipt alone did not provide sufficient notice that by using T-Mobile’s services, as the reference of the T&C was inconspicuous, and did not expressly mention arbitration. The Court therefore reserved ruling on the motion with respect to T-Mobile’s agreement with Plaintiff Ohanian. In addition, the Court found that Apple failed to demonstrate that Plaintiffs