Lee v. Ticketmaster L.L.C.

Opinion

 [*393]  MEMORANDUM²

Plaintiff Allen Lee appeals the district court's decision granting Defendant Ticketmaster's motion to compel arbitration and dismissing Lee's case. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts of this case, we need not recount them here.

] "We review a district judge's order to compel arbitration de novo." Casa del Caffe Vergnano S.P.A., v. ItalFlavors, LLC, 816 F.3d 1208, 1211 (9th Cir. 2016); see [**2]  also Serafin v. Balco Props. Ltd., LLC, 185 Cal. Rptr. 3d 151, 173,  [*394]  235 Cal. App. 4th 165 (Ct. App. 2015) ("[When] there are no facts in dispute, the existence of a contract is a question we decide de novo.").

] To determine "whether a valid arbitration agreement exists, federal courts 'apply ordinary state-law principles that govern the formation of contracts.'" Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 2014) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995)).³ "While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract." Id. (quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004)). "One such principle is the requirement that '[m]utual manifestation of assent, whether by written or spoken word or by conduct, is the touchstone of contract.'" Id. (quoting Specht v. Netscape Commc'ns Corp., 306 F.3d 17, 29 (2d Cir. 2002)). Under California law, "[c]ourts must determine whether the outward manifestations of consent would lead a reasonable person to believe the offeree has assented to the agreement." Knutson v. Sirius XM Radio, Inc., 771 F.3d 559, 565 (9th Cir. 2014) (citing Meyer v. Benko, 55 Cal. App. 3d 937, 127 Cal. Rptr. 846 (1976)).

] When determining whether there is a binding agreement with respect to a website's terms of use, courts often analyze Internet contracts in two groups: "clickwrap" agreements, "in which website users are required to click on an 'I agree' box after being presented with a list of the terms and conditions of use," and "browsewrap" agreements, "where a website's terms and conditions of use are generally posted [**3]  on the website via a hyperlink at the bottom of the screen." Nguyen, 763 F.3d at 1175-76. Although it is easier to find mutual assent in cases dealing with clickwrap agreements, the "validity of [a] browsewrap contract depends on whether the user has actual or constructive knowledge of a website's terms and conditions." Id. at 1176 (quoting Van Tassell v. United Mktg. Grp., LLC, 795 F. Supp. 2d 770, 790 (N.D. Ill. 2011)). We are "more willing to find the requisite notice for constructive assent where the browsewrap agreement resembles a clickwrap agreement—that is, where the user is required to affirmatively acknowledge the agreement before proceeding with the use of the website." Id. Likewise, "where the website contains an explicit textual notice that continued use will act as a manifestation of the user's intent to be bound, courts have been more amenable to enforcing browsewrap agreements." Id. at 1177.

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