Heckman v. Live Nation Entertainment: New Rules For Mass Arbitration Companies
By Jona Mensch
I. Introduction
An interesting new development in alternative dispute resolution has worked its way up the court system in the last few years, as a group of plaintiffs brought a putative class action alleging anticompetitive practices against Live Nation Entertainment and Ticketmaster.[1] Live Nation and Ticketmaster moved to compel arbitration based on Ticketmaster’s Terms of Use, which purported to require that plaintiffs arbitrate claims before a newly created arbitration company—New Era ADR.[2] The Ninth Circuit affirmed the district court’s order denying defendants’ motion to compel arbitration in Heckman v. Live Nation Entertainment, Inc., determining that New Era’s arbitration rules were procedurally and substantively unconscionable.[3] The case reached its final resting place this October, when the Supreme Court, without comment, left the Ninth Circuit’s decision intact.[4]
This decision could have far reaching implications for private arbitration companies, especially those dealing with mass arbitration, as it creates limitations on the arbitration procedures these companies can promulgate.[5] The Ninth Circuit specifically called out four of New Era’s arbitration Rules, “(1) the mass arbitration protocol, including the application of precedent from bellwether decisions to other claimants; (2) procedural limitations, such as the lack of a right to discovery; (3) a limited right of appeal; and (4) the arbitrator selection provisions.”[6] The Court determined that, all together, the rules were “so dense, convoluted and internally contradictory to be borderline unintelligible.”[7]
II. Bellwether Procedure
Under the bellwether procedure, cases are batched and three “bellwether” cases are chosen to be heard by a single arbitrator.[8] The determinations in these proceedings then become precedent for all common issues in the batched cases.[9] Commentators have noted that this procedure allows for defendants to avoid the burden of defending against hundreds, or even thousands, of individual arbitrations, but can create delays for plaintiffs waiting for their claim to be heard.[10] Furthermore, the Ninth Circuit critiqued this method for creating an asymmetry of information—the bellwether cases, which hold precedential value, are confidential to non-party plaintiffs seeking to analogize or distinguish their claims, but the defendant, who is a party in all cases, has access to the record of these previous decisions.[11]
III. Lack of a Right of Discovery
New Era’s rules on discovery were further scrutinized, as the Court called them “inadequate vehicles for the vindication of plaintiffs’ claims.”[12] According to New Era’s rules, complaints are limited to 10 total pages, the evidentiary record is limited to 10 documents, and “final arguments” are limited to 15,000 words.[13] This procedure, according to the Court, “border[ed] on the absurd.”[14] The Court went on to compare the filings the plaintiffs made to the district court, noting that the defendant’s motion to compel arbitration, which only covered some of their claims, was approximately 66,000 characters.[15]
IV. Limited Right of Appeal
When evaluating the right of appeal in New Era’s rules, the Court focused on the “mutuality” of the procedure, deciding whether the procedures represent the needs of both sides equally.[16] The terms of the arbitration agreement specify that, “in the event that the arbitrator awards injunctive relief against either you or us, the party against whom injunctive relief was awarded may . . . appeal that decision to JAMS.”[17] The Court noted that injunctive relief was being pursued by the plaintiffs against Ticketmaster, meaning that this provision could only ever confer a right of appeal on Ticketmaster.[18] The terms did not create a right of appeal for a denial of injunctive relief, effectively disallowing the plaintiffs any mechanism for appealing a decision.[19]
V. Selection of Arbitrators
Lastly, the Court critiqued New Era’s rules for selecting arbitrators. Echoing the trial court, the Ninth Circuit focused on three features of New Era’s rules, (1) that New Era can override a claimant’s decision to disqualify an arbitrator, (2) each side, not each individual party, has a right to disqualify the arbitrator, and (3) a single arbitrator presides over several cases at once.[20] Taken together, these rules disadvantage individual plaintiffs, who could not participate in the disqualification process, while allowing the defendant, as an individual party, to represent its own needs. Notably, the Court found that New Era’s rules violated the California Arbitration Act, and the Federal Arbitration Act does not preempt this as “[t]he FAA does not ‘reflect a congressional intent to occupy the entire field of arbitration.’” [21]
VI. Conclusion
Mass arbitration is a developing field populated by smaller arbitration providers, as the main players in the arbitration space—AAA and JAMS—have been slow to develop rules related to mass arbitration.[22] As companies try to fill this niche, they opt for different strategies to handle the unique particularities of mass arbitration.[23] The Supreme Court’s decision to leave the Ninth Circuit’s ruling in Heckman v. Live Nation Entertainment undisturbed provides meaningful guidance for mass arbitration companies trying to create rules that will be upheld in court.
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[1] Heckman v. Live Nation Ent., Inc., 120 F.4th 670, 676 (9th Cir. 2024).
[2] Id.
[3] Id.
[4] Greg Stohr, Live Nation Rejected by Supreme Court in Consumer Antitrust Case, Bloomberg Law (Oct. 6, 2025, at 21:36 ET), https://news.bloomberglaw.com/antitrust/live-nation-rejected-by-supreme-court-in-consumer-antitrust-case [https:// perma.cc/T4YW-UMWL].
[5] See Alexa Levy, The Final Act: Live Nation’s Arbitration Clause Faces the Supreme Court, Syracuse L. Rev. Legal Pulse (July 10, 2025), https://lawreview.syr.edu/the-final-act-live-nations-arbitration-clause-faces-the-supreme-court/ [https://perma.cc/L5Y5-FRUX].
[6] Heckman, 120 F.4th at 683–84.
[7] Mike Scarcella, Live Nation Must Face Consumer Lawsuit Over Ticket Prices, Reuters (Oct. 28, 2024, at 10:41 ET), https://www.reuters.com/legal/litigation/live-nation-must-face-consumer-lawsuit-over-ticket-prices-us-appeals-court-rules-2024-10-28/ [https://perma.cc/F476-T5T7].
[8] Clifford D. Bloomfield & Gary Fowler, Supplemental Mass Arbitration Procedures: Creating a Process for Fair, Efficient and Cost-Effective Determination of Claims, 112 Advocate 45, 47 (2025).
[9] Id.
[10] Richard Frankel, Fighting Mass Arbitration: An Empirical Study of the Corporate Response to Mass Arbitration and Its Implications for the Federal Arbitration Act, 78 Vand. L. Rev. 133, 163 (2025).
[11] See Heckman, 120 F.4th at 679.
[12] Id. at 685.
[13] Id. at 685–86.
[14] Id. at 685.
[15] Id. at 686.
[16] Heckman, 120 F.4th at 686.
[17] Id.
[18] See id.
[19] Id.
[20] Id. at 687 (citing Heckman v. Live Nation Ent., Inc., 686 F. Supp. 3d 939, 964 (C.D. Cal. 2023)).
[21] Heckman, 120 F.4th at 687 (citing Volt Info. Scis. Inc. v. Bd. Of Trs., 489 U.S. 468, 477 (1989)).
[22] Frankel, supra note 10, at 168.
[23] Id. at 168–169.
