Snow v. Eventbrite, Inc.

Background

Sherri Snow, Anthony Piceno, and Linda Conner filed a proposed class action against Eventbrite. They alleged that they bought tickets through Eventbrite for events later canceled or postponed because of the COVID-19 pandemic, and that Eventbrite unlawfully withheld refunds. Their claims included breach of contract, conversion, unjust enrichment, violations of California consumer-protection and false-advertising laws, fraud, and violation of California’s Unfair Competition Law. Eventbrite disputed those allegations.

Eventbrite moved to compel arbitration. It argued that the plaintiffs agreed to Eventbrite’s Terms of Service when they created accounts or bought tickets. Those terms included a binding arbitration provision and a waiver of class, consolidated, and representative proceedings.

Legal standard

The court applied the Federal Arbitration Act and California contract law. Eventbrite, as the party seeking arbitration, had to prove by a preponderance of the evidence that each plaintiff agreed to an arbitration contract. For an online agreement, the user must have actual notice or be given enough information that a reasonably careful user would be on notice of the terms.

Court’s analysis

The court identified several problems with Eventbrite’s evidence. Eventbrite generally submitted screenshots from January 2016 and the present day, even though the plaintiffs allegedly created accounts or made purchases at later, specific times. Eventbrite did not establish which versions of the sign-up and checkout pages the plaintiffs saw on those dates. The court also found contradictory evidence about whether a “Continue with Apple” button appeared when Conner allegedly used the service.

The court additionally found that Eventbrite’s checkout screenshots could be misleading. The pages appeared to show the Terms of Service notice near the “Place Order” button, but the court took judicial notice that the current site could have a scrollable area containing the notice while leaving the order button fixed and visible. A user could therefore enter information and place an order without necessarily viewing the notice.

For Snow, the court said the January 2016 sign-up notice and the current checkout screenshots might have been conspicuous enough to provide notice if they were the pages she saw. But Eventbrite did not prove that those pages existed when Snow used the service, so it did not establish her assent.

For Piceno, Eventbrite’s records did not show that he purchased the tickets or created an account before the alleged purchase date. The possible sign-up pages varied by platform and date. The court found that some versions might have provided adequate notice, but Eventbrite did not prove Piceno saw them. The court also found the smartphone-app page’s small, dark text against a dark background insufficient to put a reasonably careful user on notice. Eventbrite’s evidence about that page was contradictory as well.

For Conner, Eventbrite likewise did not show that the relevant mobile checkout page existed when she used it. Eventbrite represented that Conner saw the low-contrast smartphone-app page, but the court found that page insufficient to provide notice even if it was from the correct period. Eventbrite’s representations about the page also conflicted.

The court rejected Eventbrite’s argument that post-purchase confirmation emails independently bound the plaintiffs to the Terms of Service. Eventbrite did not provide adequate authority showing that a later, unilateral email could establish mutual agreement when the user had not previously assented.

Disposition

The court concluded that Eventbrite had not met its burden of proving that the plaintiffs assented to the Terms of Service. It denied the motion to compel arbitration and vacated the hearing set for October 21, 2020.