The Third Circuit Court of Appeals ruled on March 6 that a factual dispute over the existence of an agreement to arbitrate between Live Nation World Wide, Inc. and a customer should be decided at a trial, not on summary judgment. 

John Egan filed suit against Live Nation in 2017, claiming that the company violated the Americans with Disabilities Act (“ADA”) because it did not have tickets for wheelchair-accessible seats available on its website for a Counting Crows concert.  Live Nation moved to compel arbitration, claiming that Egan had agreed to arbitrate any claims against Live Nation twice: in 2017 when he searched Live Nation’s website for Counting Crows tickets, and previously in 2012, when he purchased Madonna tickets. 

In support of the motion, Live Nation produced a declaration signed by its vice president of product management, attaching the 2017 and 2012 Terms of Use, which contain arbitration provisions.  The declaration further stated that the Terms of Use are referenced on “virtually all” of Live Nation’s webpages and that per Live Nation’s records, Egan purchased Madonna tickets from Live Nation’s website in 2012.  

Egan disputed these facts, claiming that Live Nations website did not flag the Terms of Use on the webpage he visited in 2017 and that he did not recall purchasing Madonna tickets in 2012 (and that he is not a Madonna fan) and that Live Nation failed to prove what its website looked like in 2012. 

Ignoring this factual dispute, the United States District Court for the District of Pennsylvania denied Live Nation’s motion to compel arbitration, applying a summary judgment standard and finding that: (1) Live Nation failed to prove that Egan clicked past a Terms of Use disclaimer in 2017; and (2) failed to properly authenticate the Terms of Use from 2012.   

In an unpublished decision, the Third Circuit reversed the district court’s decision, finding that issues of fact regarding the existence of an arbitration agreement preclude resolution of a motion to compel arbitration on the summary judgment standard – instead, the dispute must go to a bench or jury trial.  Further, the Third Circuit held that the district court’s ruling on the 2012 Terms of Use was reversible error, finding “[t]he burden to authenticate a document is ‘slight,’ and “Live Nation produced more than enough evidence to show that the 2012 Terms of Use could be authenticated at trial.”