Oberstein v. Live Nation Entertainment, Inc.

An enforceable agreement may be found where “(1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms” Berman v. Freedom Fin. Network, LCC, 30 F.4th 849, 855 (9th Cir. 2022)

Defendants appealed the grant of a motion to dismiss in favor of compelled arbitration. Defendants assigned error to the trial court’s determination, contesting the validity of the Terms which included the arbitration agreement. On appeal Defendants argued that the “Terms of Use” were invalid because they failed to properly identify the Plaintiffs as parties to the agreement and that the Plaintiffs failed to provide constructive notice. An enforceable agreement may be found where “(1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms” Berman v. Freedom Fin. Network, LCC, 30 F.4th 849, 855 (9th Cir. 2022). In regard to the first part of the test, the Court was satisfied because the “Terms of Use” hyperlink was not too conspicuous. The Court was also satisfied in regard to the second part of the test because they found that at three independent stages when creating an account, a user was presented with a confirmation that they were agreeing to the “Terms of Use.” Affirmed.