How Ticketmaster Made It Impossible To Sue Them

Ticketmaster and its parent company Live Nation Entertainment have drawn the ire of consumers — and the Federal Trade Commission — for exorbitant ticket prices, misleading hidden fees, and shady resale tactics.  

But losing your right to sue Ticketmaster or join a class action lawsuit is now just a click away. Hiding in the company’s new terms-of-use agreement, The Lever found a clause that forces ticket buyers into arbitration, a private judicial system rigged in favor of the company.

Today on Lever Time, David Sirota sits down with The Lever’s Luke Goldstein and anti-monopoly attorney David Seligman to reveal how the ticketing company has monopolized the live entertainment market, kept ticket prices high, and is now stripping away your legal rights.

Click here to read Luke’s story about Ticketmaster’s new terms of use.

To learn more about David Seligman’s organization, Towards Justice, click here.

Click here to pre-order our new book, MASTER PLAN: The Hidden Plot to Legalize Corruption in America.

A full transcript of today’s episode is available below.

TRANSCRIPT

Following is an automated, unedited transcription of this episode. If you plan to quote any part of this transcript, please first confirm that it is correct by listening to the audio.

[00:00:00] David Sirota: From The Lever's reader, supported newsroom, this is Lever Time. I'm David Sirota. If you've ever bought a ticket to a concert or a sporting event, you probably got an email a few weeks ago from Ticketmaster. It looked boring. Something about changing its terms of service. Does anyone even read those emails?

You probably deleted it. Well, we didn't delete it. We at The Lever actually read it, and guess what? It's a really big deal. Buried in the fine print is new language that

locks you and everyone else who buys a ticket into a private judicial system. On today's episode of Lever Time, The Lever's Luke Goldstein and attorney David Seligman reveal how the ticket cartel is trying to keep ticket prices high and strip you of your legal rights.

That's coming up on today's episode.

[00:01:06] Kid Rock: Like anyone who's bought a concert ticket in the last decade, maybe 20 years, no matter what your politics are, knows it's a conundrum. You, you buy a ticket for a hundred bucks. By the time you check out it's 170. You don't know what you can charge for.

[00:01:17] David Sirota: This was Kid Rock at the White House back in March.

He was in the Oval Office as President Donald Trump signed an executive order purporting to. Finally solve the problem of Americans getting fleeced on the price of tickets for music concerts, professional sports games, and other live events. Trump credited kid rock with prompting him to allegedly fix the entire issue with the stroke of a pen.

[00:01:41] Donald Trump: I didn't know too much about it, but I checked it out and it is a big problem and I thought, I think you've been trying to get this done for 20 years or something. He said, Trump got it done in two weeks.

[00:01:50] David Sirota: Trump's executive order back in March only focused on ticket resellers. They can be a problem for sure, but the really, really big problem is the monopolist at the top of the Ticket Empire, Ticketmaster and its parent company Live Nation, and now Trump's antitrust enforcers at the Federal Trade Commission seemed to be honing in on that problem.

They recently filed a lawsuit alleging that Ticketmaster saddles consumers with ticket fees on platforms dominated by illegal brokers, commonly known as scalpers. The FTC also accused the company of bait and switch pricing.

[00:02:29] News Clips: You know, everyone now who's gone to a show and has to buy a ticket with Ticketmaster knows about the high service fees and charges that they add on.

That's one of the most basic, I think, understandable extortion rackets that the Live Nation monopoly is able to wield on consumers.

[00:02:44] David Sirota: That's the levers. Luke Goldstein. Who has extensively reported on Live Nation and Ticketmaster, those companies have effectively become a cartel controlling most of the ticket market and using that power to jack up prices for so many things.

We love music, concerts, basketball games, live podcasts, and more. Now, it wasn't always like this. Ticketmaster used to sell tickets and Live Nation promoted events. They were separate complimentary businesses, but over the decades, the music industry has transformed. Here's Luke again.

[00:03:19] News Clips: When artists used to go on tours and they would play at venues, it was really more so almost marketing.

For their records that they were putting out, like they made their money from record sales. Then you had big pop artists that kind of discovered that they could actually like sell out giant stadiums and amphitheaters and make lots of money. But today, artists are really reliant on those live entertainment tours

[00:03:43] David Sirota: after cornering each of their respective markets by buying out competitors Live Nation and Ticketmaster proposed a merger about 15 years ago.

The company's CEOs frame the business move as salvation for the struggling music industry.

[00:03:57] Michael Rapino: MTV doesn't play videos and radio stations are on a downward spiral. Album sales have fallen almost by

[00:04:02] David Sirota: half since 2000. That's Michael Rapinoe live Nation's CEO, making his case in front of Congress in 2009.

[00:04:09] Michael Rapino: The artist makes music and others steal and exploit it, clinging to the old ways and fighting change is not the answer.

[00:04:17] David Sirota: It was a match made in heaven. Or hell. The proposed merger garnered intense scrutiny from musicians like the boss.

[00:04:24] Jerry Mickelson: Bruce Springsteen posted a letter on his website. He stated the one thing that would make the current ticket situation even worse for the fan than it is now would be Ticketmaster and Live Nation coming up with a single system.

[00:04:37] David Sirota: Members of Congress like Minnesota. Senator Amy Klobuchar expressed concern.

[00:04:41] Amy Klobuchar: I'd like to know whether this merger will raise ticket prices and make it harder for independent concert agents to market and promote lesser known artists at smaller venues.

[00:04:52] David Sirota: But of course, the CEOs assured Congress that the companies wouldn't collude to jack up prices.

[00:04:57] Michael Rapino: Our motivation is to keep the ticket price as low as possible and get everyone in the building

[00:05:05] David Sirota: Those arguments worked. President Obama's antitrust enforcer, Christine Varney approved the merger in 2010 with a few strings attached.

[00:05:13] News Clips: They had to solve a couple parts of their business that didn't frankly matter that much, and they had to sort of pinky promise that they would not use this giant monopoly to retaliate.

Against the other commercial players like venues that rely on their services.

[00:05:29] David Sirota: You can probably guess what happened next. A recent study found that over just the last four years, concert ticket prices have increased by more than 80%. Had concert ticket prices stayed in line with the rate of inflation over the last 40 years, the average price for a ticket.

Would be about one third less than what fans pay today. And yet, the CEO of Live Nation believes concert tickets are underpriced. Here's Michael Rapinoe again. In a recent interview,

[00:05:59] Michael Rapino: I think music has been underappreciated. You know, I always joke sports, it's like a badge of honor to spend 70 grand for a Nick's court side.

They beat me up. If we charge 800 for Beyonce, the concert is underpriced. Has been for a long time.

[00:06:15] David Sirota: High ticket prices are just one side effect of the ticket cartel. After the merger of Live Nation and Ticketmaster, the Justice Department accused the conglomerate of retaliating against competitors.

Here's just one example from back in 2021, which Luke Goldstein investigated

[00:06:31] News Clips: the LA Coliseum. They wanted to go to StubHub, which is one of the only major competitor ticketing services

[00:06:39] David Sirota: Live Nation intervened, imposing expensive conditions on the venue, punishing the LA Coliseum for partnering with StubHub instead of Ticketmaster,

[00:06:48] News Clips: to the point that StubHub wasn't even gonna be making money on that show anymore.

Lo and behold, the La Coliseum ditched this whole effort and just said, okay, there's nothing we can do. We'll just go to Ticketmaster.

[00:06:59] David Sirota: Since last year, the Justice Department has been investigating these alleged crimes. An ongoing lawsuit could even force the companies to break up.

[00:07:07] News Clips: That brings us to the new version of Live Nation, which is really at the apex of its powers, and this is the new entertainment giant that the Department of Justice is now trying to.

Unwind and breakup.

[00:07:21] David Sirota: The threat of a forced breakup comes. Thanks. In part to mega pop star Taylor Swift, back in 2022 when Swift released tickets for her ERAS tour using what seemed like the only viable option, Ticketmaster,

[00:07:34] News Clips: all of these bots that had infiltrated the platform had bought up huge bulks of tickets, and then were immediately reselling them for exorbitantly high prices on the resell platforms, which, by the way, Ticketmaster also.

Controls, they have secondary ticket platforms where they also get to charge an additional fee.

[00:07:51] David Sirota: The public backlash was hard to ignore.

[00:07:54] News Clips: As more

[00:07:54] David Seligman: fans lost out on tickets, they started looking for someone or something to blame. This was a terrible experience. I'm really disappointed, and a lot of them looked at Ticketmaster.

[00:08:04] ABC News Clip: We are not gonna just settle. We want to see some change happen.

[00:08:08] David Sirota: The resulting Swifty rage inspired 32 Democratic members of the house to release a letter. They demanded that President Biden's, attorney General Merrick Garland, investigate Live Nation for its business practices and break up the corporations.

The Justice Department filed its antitrust suit against the company the same day.

[00:08:28] News Clips: You don't wanna piss off. You know, Swifty is, as I've discovered,

[00:08:31] David Sirota: Trump's administration is currently considering new rules to govern the ticket market, and Ticketmaster is lobbying for a cap on resale prices. Now that sounds great.

But critics including those in MAGA world, like former Republican Congressman Matt Gaetz, they argue that it's another stealthy way to help the company put rivals out of business and seize even more power in the market that leaves ticket buyers to take matters into their own hands through class action lawsuits.

Since 2010, plaintiffs have exercised those rights to Sue Ticketmaster. The massive agency is facing a class action lawsuit in Quebec.

[00:09:11] News Clips: Have you ever used Ticketmaster? Their ticket vendor recently settled a class action lawsuit where it was accused of overcharging people,

a group filing a lawsuit in court today, claiming a conspiracy to jack up prices for Swift's Eras tour.

Ticketmaster has faced. A bunch of these class action complaints for all kinds of practices. Some of it's like scalping, ticketing fraud, some of it's for the really high fees, but a bunch of them have been antitrust complaints.

[00:09:38] David Sirota: So how is Ticketmaster now responding by trying to force those cases out of the normal court system and into a secretive private judicial system that big corporations have influence over?

This system is called arbitration, which sounds fair enough. Which is in reality corporate America's Kangaroo Court. Here's Luke Goldstein again.

[00:10:00] News Clips: You're now gonna go through this private justice system, which is known as arbitration, where you will be seen before a judge that's been hired by Ticketmaster, and your actual chance of winning that case is extremely, extremely low as a number of lawsuits have shown in recent years.

And a class action waiver means. That you cannot ban together with all the other ticket purchasers who may have had the same problem as you, the way you would be able to in regular court

[00:10:34] David Sirota: companies like arbitration. Because the proceedings are secret, the rulings cannot be appealed, and the corporations are paying the arbitration firms, which means those firms are incentivized to make corporate friendly rulings or risk losing the business.

Isn't

[00:10:50] Jerry Mickelson: that a conflict of interest?

[00:10:52] David Sirota: Not in my book. That's what the companies claim, but the proof seems to be in the pudding. One old study found that these arbitration courts were ruling in favor of companies over consumers upwards of 95% of the time. A more recent Washington Post headline, put it this way, as closed door arbitration soared last year, workers won cases against employers just 1.6% of the time.

Which brings us to the email that you probably got from Ticketmaster last month. The subject line simply said, quote, we are updating our terms and policies, the levers. Luke Goldstein discovered that buried in those fine print changes is language that says you basically cannot join with other ticket buyers and go into federal court to sue Ticketmaster for ripping you off.

If you have a problem, you must use Ticketmaster's handpicked private arbitration company.

[00:11:46] News Clips: What Ticketmaster did was they took this beyond the scope of what has been sanctioned by the Supreme Court. They were facing a previous class action lawsuit called Oberman in 2020. And while that case was ongoing, in order to just try to get around.

Some parts of that court case, they created a new arbitration firm. What later cases have deemed is that this arbitration company called New Era was really just a shell company of Ticketmaster. And that's like kind of the one, no-no. It's one line you can't cross in arbitration law.

[00:12:21] David Sirota: The new terms of use agreement also asserts that even if your state.

Happens to have tough laws against arbitration scams. The company doesn't have to abide by those laws, frankly, like they're stacked against you. Ticketmaster is not alone. One study found that 81 of the top 100 largest companies forced consumers to sign arbitration agreements by slipping these clauses into the fine print of their terms of use agreements without fully informing consumers.

Put it this way. You've probably already signed away your legal rights a bunch of times when you've clicked okay to all that fine print on the internet.

[00:13:00] News Clips: One of the, uh, downsides unfortunately with reporting is you learn a lot about how stuff works. I mean, I've known that terms of service has been, have been totally cooked for a while, but I've definitely grown a little bit more paranoid about what's actually, uh, in the fine print.

I, I'm, I'm not gonna claim that that's motivated me to actually. Read through the whole text, but I'm definitely a little bit wearier. So what can

[00:13:19] David Sirota: be done about the ticket cartel and the larger problem of companies forcing you to give away your legal rights? Well, it turns out this issue is far from settled.

Or to put it in legal terms, the case isn't closed. I wanted to talk with somebody who could get to the bottom of this arbitration tactic, but first. I wanted to have a little legal fun with him and we need you to confirm that you understand and agree that this interview is being recorded and may be used by us.

If you agree, please state your name and say, I agree. Is there forced

[00:13:49] David Seligman: arbitration in there too?

[00:13:50] David Sirota: There is no forced arbitration.

[00:13:51] David Seligman: All right. Uh, David Seligman and I agree not to any arbitration. That's attorney David Seligman. I'm David Seligman. I'm a workers' rights, consumer rights and anti-monopoly lawyer.

I'm the executive director of a nonprofit legal organization called Towards Justice, and I'm also running for Attorney General of Colorado.

[00:14:07] David Sirota: Seligman has been fighting for people exploited by forced arbitration here in Colorado, so when I sat down to discuss this with him. I first wanted to just get a sense of how pervasive this legal tactic is in corporate America.

The majority

[00:14:21] David Seligman: of the contracts that that we're required to enter into with corporate America, your boss, your bank, your credit card company, your nursing home, they include these terms in them, which we call arbitration provisions, forced arbitration provisions 'cause you don't have any choice but to sign them.

And those forced arbitration provisions often say something like if there's a dispute between the parties. You can't sue us in court. And almost always they say you cannot hold us accountable in a class action. Now, that's a huge part of the, of the scam here. A, a strategy blessed relatively recently in five to four Supreme Court decisions by the John Roberts court in 2007, 2011, after, you know, decades of, you know, strategic legal advocacy on the part of, uh.

Corporate aligned groups to, uh, to shut down the class action mechanism of holding corporations accountable. So this, this is like baked into our, our lives. For years, corporate America had strategized this absurd fiction to avoid accountability through class actions. And over the past couple of years, consumers, workers, and others have tried to start calling them.

On the scam to say, look, we can't sue you in a class action, so then what if we get thousands and thousands and thousands of people together to hold you accountable? Because the whole point was that, you know, they were like, if we can avoid the class action, then we'll never be accountable. And in many cases that's true that that's it.

That's the end of the story. No case we'll ever be brought. In, in most cases, in some small number of cases, uh, we've been able to fight back through something called mass arbitration. And mass arbitration is when a bunch of people get together hundreds or thousands to, to file claims about misconduct to try to fight back.

Well,

[00:16:08] David Sirota: before we get into mass arbitration, let's just take a step back here. For those who don't know what a class action is, I mean, a class action is me. And thousands of other. Let's stick with Ticketmaster, me and thousands of other ticket buyers. Get together, probably organized by some, either a group of set of lawyers, legal advocates, get together and file one case on behalf of thousands of people, or it's cert.

A bunch of cases are certified as a class. We go into a. Government run, government operated court and have our disputes ruled on by a government official who was supposed to be impartial. That's the way it's supposed to work.

[00:16:50] David Seligman: Yeah. Class actions are essential in all kinds of cases they developed. You know, in the sort of mid 20th century as a mechanism to efficiently hold systemic misconduct accountable, whether on the part of the government or on the part of corporations, because increasingly we were seeing larger corporations engage in systemic fraud and systemic misconduct.

And in those types of cases, what those. People who developed the class action device recognized that you needed an efficient way to resolve those disputes so that everyone could obtain relief. And also that in many cases, and, and this is especially true now, on, on in cases involving workers, many people will be.

Fearful of coming forward at all. And so the class action device is absolutely essential to saying, look, you know, we're not gonna make everybody sue for the same type of misconduct. One or two or a few people can come forward so long as the case that their allegations are common across the class, then they can sue on behalf of the class and we can have that, that case resolved.

Now, it provides finality to everybody, but the corporation isn't dealing with thousands of lawsuits. Right. And the court system is a cause and the court's not dealing with, with thousands of lawsuits. Right. I mean,

[00:17:56] David Sirota: it's, it's like a, it's like a sort of a.

Lawsuit union. Then the question becomes. Okay. Well I'm, I, if you read the fine print, I'm still allowed to go into this thing called arbitration, which sounds like a court, sounds like a like yeah, an arbitrator.

Somebody who's supposed to like, hear both sides and, but like, clearly that's different than a court. So for somebody who doesn't know what arbitration is, and here's that term, and it sounds kind of innocuous, how would you describe the difference between that and a court?

[00:18:27] David Seligman: So arbitration is a. Private mechanism for resolving disputes.

So these are private companies that are resolving disputes between the parties. For a hundred plus years, we had typically thought of arbitration as being a like an efficient and streamlined way to resolve disputes. Between parties that had roughly equal bargaining power. So two corporations entering into a contract, they want to have a more efficient way of resolving disputes between the parties.

They, they might include in their contract something that says, look, if we've got a dispute, let's use this third party that we both trust to be fair and impartial.

[00:19:05] David Sirota: After a quick break, I'm gonna ask attorney David Seligman to explain why we should be especially concerned that a company like Ticketmaster is forcing class action lawsuits.

Into arbitration court.

Welcome back to Lever Time. So in the context of something like Ticketmaster, why should somebody who buys a ticket be concerned that the fine print in the email that was sent to them essentially strengthens and arguably broadens the. Language that says they can't go to court, they have to go into arbitration, and they waive their class action rights.

Like why should the average ticket holder care about

[00:19:49] David Seligman: that? Yeah, I mean, even if you don't give a shit about your constitutional right to like a jury of your peers, right? Like you don't theory, you don't care about like, whatever. I'm just like trying to go through my day. I'm not actually gonna like, what?

I'm gonna sue Ticketmaster. It's a, this is a license for them to steal from you because if you don't have mechanisms for. Holding Ticketmaster accountable for its monopoly power, for its junk fees, for all the scams that it might be engaging in, then it's just gonna engage in those scams. I mean, there are like companies across our marketplace whose business model basically involves arbitration and is built on arbitration because they involve such clear and outrageous legal risk to the company, um, that there's no way that they could maintain the business model.

Absent some mechanism for ensuring that they'll never be held accountable. So arbitration is often accompanied by a scam, right? By, by like a, you know, junk fees by the, the ways in which companies might jack up your costs. There's a, there's a terrific paper from a few years ago actually, that FTC chair Lena Conn wrote before she was on the, the Federal Trade Commission called arbitration as wealth transfer, which I think eloquently captures what often is happening here.

So

[00:20:57] David Sirota: this, so are, are you essentially saying the scammier your business. The more insistent you might be about having arbitration clauses in your contracts because you know that the arbitration system is way less likely to result in holding you accountable than the court system.

[00:21:17] David Seligman: Absolutely. I mean, it's a, it's like, it can be, it can operate like a license to steal and I think,

[00:21:22] David Sirota: uh, well, well, let's, let's dig down on that a little bit.

Why is that? What about the arbitration system is, is better for the company?

[00:21:30] David Seligman: So. In many cases, it's because they've stripped you of the class action device, right? So you're a bad boss and you're scamming over all your immigrant workers. You know, you're like a staffing agency around Colorado. This is a case that I've seen where you charge three, four bucks a paycheck as some kind of paycheck processing fee.

Just a scam. Just like. Just, you're just stealing from people. And the only real way that you'll ever be held accountable for that through private litigation is if people can stand up together through the class action. They're just, they're not gonna do it on their own. They're gonna be too scared to do it on their own.

They're gonna be too uncertain of their legal rights to do it on their own. They're gonna need to band together. Uh, and it's also like if they do bring an individual case, all right, you pay 'em a couple bucks, but you've got thousands and thousands of workers, there's really no way that you'll be forced through private litigation.

To pay up for your, for your violations in any kind of systemic way, unless, unless there's a class action to hold you accountable. And so, um, that. That's what I mean when I say forced arbitration becomes part of a business model of the scam. The arbitrators very often are corporate lawyers who have relationships with the corporate lawyers who defend the company and see those lawyers over and over and over and over again.

You know, I was talking to a lawyer in Denver. A couple of weeks ago, who brings cases against car dealerships who's explaining how challenging it is when you know, when you're constantly up with against the same arbitrators who seem to see the same car dealership who pays them, you know, thousands and thousands of dollars a year to ever prevail in one of these cases when you know, they know that their paychecks.

Are gonna depend on them continuing to do right by the car dealership. It's a, it's a, sometimes we call it like a repeat player bias, but it's sort of intuitive that, that if the company is paying for the arbitrator and developing the rules of the arbitration, often having relationships with the arbitrators that it's gonna be, the deck is gonna be stacked.

[00:23:28] David Sirota: Okay.

So somebody who, again, who got the email

from Ticketmaster.

Now they're learning. I, I'm, I'm essentially signing away my rights. All of us are signing away. Clicking away. Yeah. Our rights. It's reinforcing the fact, as you've argued, that Ticketmaster, its business model relies on having this sort of legal wall from being collectively held accountable.

What do you think that means? In practice for somebody and what can be done about this,

[00:24:01] David Seligman: you know, and oftentimes I'll get this question from folks or like, you know, clients will come in the door, you know, and say something like, oh man, I really, I really screwed up here by agreeing to this arbitration thing.

I didn't know what I was doing. You have to understand. And yeah, the whole point is that you didn't have a choice. Um, there's nothing that, there's nothing meaningfully that could have been done now. In terms of reforms. Yeah. Um, you know, Congress could fix it. And how,

[00:24:23] David Sirota: how, what could Congress do?

[00:24:24] David Seligman: So Congress, there are bills before Congress now, the Fair Act that would prohibit forced arbitration in certain contexts involving workers, consumers, and small businesses.

[00:24:35] David Sirota: Like saying, these, these provisions are just not allowed. They're illegal. Illegal. You

[00:24:37] David Seligman: can't, you can't use these provisions in cases that involve. You know, consumer claims, worker claims, and, and that's already happened in some cases. So a couple of years ago, Congress passed a law saying that you couldn't force into arbitration claims involving, uh, sexual assault or harassment when, uh, that passed in Congress.

Uber is actually one of the one, Uber and Lyft, which are subject to all kinds of complaints involving sexual assault and harassment. On the part of drivers and on the part of the riders have, you know, now in the, the sort of like next effort to shut down accountability recently tried to push a measure in Nevada that would've made it effectively impossible for private attorneys to bring those cases.

The bottom line, I guess, is all to say that, you know, forced arbitration is like, is it. Baked into a business model of corporate corruption and, and corporate abuse. Now, there are things that states can do too. Right? You're running for State Attorney

[00:25:28] David Sirota: general.

[00:25:29] David Seligman: Yeah, there are. There are. There's things that states can do too.

So I, and I've written a lot about opportunities that states have to at least address the harms of forced arbitration. Now, the. Supreme Court precedent suggests that states, as a general matter, can't prohibit the enforceability of these kinds of terms, and that that's, you know, these Supreme Court cases are cases about federal preemption, where the court is saying, look, California common law is preempted by something called the Federal Arbitration Act.

So states are limited in what they can do, but states. Still have all kinds of authority to enforce their laws. But most importantly, like a key thing to remember here is that public enforcers, attorneys general departments of labor, the, you know, and federal enforcers like the Consumer Financial Protection Bureau, the FTC, et cetera, they are not bound by these forced arbitration provisions.

So that is why we should be, especially. Concerned. Another reason why we should be especially concerned by the ways in which the Trump administration has completely dismantled the agencies that are there to enforce consumer worker. Any mechanism for accountability is completely gone. And, and what that means is that, you know, the laws are just like words on a.

On a freaking page. That's the truth for a lot of people in this country who experience rampant corporate lawlessness and forced arbitration is absolutely central to the scheme. So when, when we have like Democrats running around about how we have to restore the rule of law, I think it's also important to be mindful of the fact that like a lot of working people in this country have experienced a rule of law that is substantially rigged against them, forced arbitration.

At the center of that.

[00:26:58] David Sirota: So to go back to the Ticketmaster situation, yeah. The, the court case at issue, the Ticketmaster is still embroiled in and they're asking to go to the Supreme Court on when it comes to forced arbitration and they're trying to keep these cases against it, or potential cases. At this point out of court, what's at issue there?

What could the Supreme Court. Do I'm, I'm like almost afraid to ask.

[00:27:22] David Seligman: Let's talk first about what Ticketmaster Live Nation scam was. So again, we're playing a rigged game of whack-a-mole with corporate power. In some narrow cases, consumers and workers have been able to stand up and say, you know what? Screw it.

You think that you can. Rig the rules. So we don't have a class action. We're gonna call your bluff. We're gonna show up thousands of us filing individual cases to actually hold you accountable and

[00:27:46] David Sirota: in in the arbitration system. In the arbitration system to actually hold you accountable. So fine, you're putting us in this unfair system.

We're gonna flood this system now. We're gonna flood it. We're gonna try to find a way to make it painful for you.

[00:27:55] David Seligman: We're all gonna show up no matter how weird and inefficient and costly that is. And. What companies have started to realize, like Live Nation and Ticketmaster is, oh shit, this is actually really inefficient and costly.

All the reasons, by the way, which we have class actions in place for. So you don't have to deal with that kind of crap, but they don't wanna go back to the class action. So yeah.

[00:28:15] David Sirota: It's kind of jujitsu, like the, the, the thing they thought was their solution arbitration is now being like kind of weaponized against them.

Exactly.

[00:28:21] David Seligman: Exactly. Uh, they don't wanna go back to the class exercise. They'd to hear. Yeah, that's right. And it's, but I should say that it's really like hard to do. A lot of, like, workers aren't gonna sign up for that kind of thing, but it can happen in some cases. And again, you don't wanna go back to the class action device, you gotta stay one step ahead.

But the, the thing about arbitration is you are writing your own rules, you're picking your own arbitrator. So what Live Nation tried is to really basically through its lawyers to create a new kind of arbitration system that would make it. Impossible to even use this mass arbitration mechanism to hold them accountable.

I see, I see.

[00:28:55] David Sirota: So there was a

[00:28:56] David Seligman: glitch in the matrix. Now the matrix is trying to close the glitch there. Yeah. We like, how, how do we shut this thing down? And the good news is for them is that they write the rules. They write the rules in the, in the contract that you have no choice but to sign. So it's, it is all private rules written by them, their own private legal universe.

Um, so they set their own private legal universe. They say we're, we got a new arbitration company and this new arbitration company, which, which seems to have been developed by. Their own lawyers and Live Nation was the first subscriber. It's a subscription model. This new arbitration company, they have all kinds of rules in place to make it really difficult to even bring a ma uh, a mass arbitration.

Rules in like that include limiting your right to get any discovery, any information from them. They've got this process in place. Involving what they call bellwether cases where as opposed to actually having to deal with these thousands of other disputes, only a couple of cases are picked out and you know, most of the consumers have no idea what's actually happening In those cases, of course, live Nation does, it can then, if it wins in those cases, then it can use those cases against the thousands of other people and they make it really hard to appeal in cases in which you might have a problem with the ar, what the arbitrator has done, they rig the rules.

Even further to make it exceptionally challenging to bring these mass arbitration cases, and that's what's at issue. Whether that's legal and the ninth Circuit says the district court in California and then the Ninth Circuit said, that's not legal. That is, that is unconscionable and unfair because there's not even really, you know, there's, there's no real mechanism for, first of all, there's all kinds of the due process rights of everybody who's not part of these bellwether cases are, are being denied them.

The arbitrators are. Effectively picked by the arbitration company, which was developed by the law firm that, you know, the defendant, uh, has hired. There is no mechanism for people to appeal. There's no discovery. I, there's some, you know, you, these are complicated, you know, antitrust cases, but they say, but.

That to make your argument about why there's been unlawful conduct, you're like limited to 10 pages or something like that. It's a jail court. It's a kangaroo jail court. We're gonna

[00:30:57] David Sirota: take one more quick break afterwards. Attorney David Seligman and I are going to discuss Ticketmaster's appeal to the US Supreme Court and why federal judges aren't more concerned about private arbitration.

Courts usurping their power.

Welcome back to Lever Time. So now this issue of whether this even more dystopian system, that issue. Is now going up to the Supreme Court that that sounds terrifying. Like we're giving the Supreme Court, this Supreme Court, another chance to enshrine something even worse. They've,

[00:31:37] David Seligman: yeah, they've petitioned for cert in the Supreme Court.

They've asked the Supreme Court to hear the case and the absurdity of this is so extraordinary. I like to hope. That, you know, the Supreme Court wouldn't exercise the chutzpah to actually bless it. Right. It looks so absurd. So obviously a kangaroo court. Now, what I'll say is that like, you know, we're constantly hoping and praying that the Supreme Court isn't gonna exercise the chutzpah to do horrific things.

I, and they're doing 'em all the, all the freaking time. Man, I,

[00:32:01] David Sirota: let me, I mean, I'll ask like

a naive question. I mean, this such, such a, I just gotta ask it. It's like, sounds so ridiculous to even ask this in 2025, but what about the idea that, like, if you're. A judge or a Supreme Court justice, shouldn't part of you be looking at this as like this system that's being expanded and now, you know, mega corporations are using it all the time, right?

Like everyone listening to this is probably signed into these, whether these agreements, like maybe 50 of them, right? 50 of them. Right. Right that you don't even know. Wouldn't a judge or a Supreme Court justice look at this private judicial system as a user patient of their own power? Of course, if, if you're a judge who's ruling and validating this and saying, this is okay, you're saying my power as a judge, my entire job is becoming less and less.

Meaningful with any

power.

[00:32:52] David Seligman: You could talk to judges and I have, and you know, hear from judges all the time that they have seen cases, especially if they've been around for a couple of decades, they have seen cases disappear. They've seen cases involving wage theft, involving discrimination, involving consumer fraud.

They've seen the cases go away. They're not there anywhere. The cases have disappeared and they're not brought at all. They're brought into private arbitration.

[00:33:13] David Sirota: Of course, of course. I'm thinking that like, as you say, that I'm thinking that like I can hear the conservative voices saying. We're unclogging the courts like that's actually the point here that legal disputes as a general matter.

Bad. If we're essentially reducing legal disputes, we're making the society more efficient. Now, your point is, is that just because the legal disputes are not in court doesn't mean there's not a dispute. Doesn't mean there's not, uh, illegal, horrible conduct. It just means that it just, it doesn't have access to be.

[00:33:45] David Seligman: Challenged there. I mean, there is more illegal conduct, right? There is, it's more of a scam when you don't have a mechanism for holding them accountable. And this is part of the master plan too, is to, to steal from people, to jack up their prices, to make their lives harder, to treat your workers like shit, and to then to make them mechanisms of.

Maintaining that system so complicated and challenging to wrap your head around imperceptible, literally buried in the fine print, that there's no real democratic accountability. Like that's the master plan. Um, and that's what's happening here. There's

[00:34:19] David Sirota: a method in the madness. Absolutely that, that, that's

[00:34:21] David Seligman: the

[00:34:21] David Sirota: point.

And, and I, and I want to add one last thing here, which is that for every class action case that is brought successfully, even the ones that lose, by the way, for every class action, that at least gets into court, in theory, that is a deterrent to the kind of behavior, corporate behavior at issue. In the case, if a corporation knows.

That there is that annoying, costly process right there that, that in theory, the corporation is gonna think, Hey, we could do our business the high roadway, or we could do it the shitty low roadway. And if we do it the low roadway, we might get dragged into that place, that court that we don't want to be dragged into.

And so the existence of that court process is a deterrent when you take that deterrent away. Or for every one case that gets into the, into the court, it says to thousands, millions of of businesses, corporations don't behave that way. And when you take that away. You get what we're living through.

[00:35:31] David Seligman: Yeah. I mean, I promise you, I promise you, I wouldn't know for sure.

Uh, I've never been a corporate lawyer, but I promise you that there are conversations happening today out there where some, um, corporation, you know, some, uh, is trying some new legal innovation. You know, why don't we try it this way? Why don't we, why don't we just scam people just this much? You know, it would be great if we didn't have to comply with the Truth in Lending Act to disclose the terms of our, our loan.

It'd be great if we didn't have to pay workers overtime. It'd be great. You know, if we could, you know, engage in a little bit of discrimination. Yeah. It's like the

[00:36:09] David Sirota: Superman three scheme. We'll, we'll take another extra penny. Half a penny outta people's

[00:36:13] David Seligman: paycheck. Yeah. That's 10 bucks in junk fees. Thousands of customers, you know how much 10 bucks in junk fees adds up to.

Right, right. So, uh, it'd be great if we could do those things. I. There's a little bit of risk to us, and there's some corporate lawyer somewhere today that's saying, well just, you know, just remember we've minimized the list, the risk of class actions because we've got a forced arbitration clause and we have, we're the best lawyers and we have locked down and airtight.

Arbitration clause for you, uh, which minimizes your risk. So yeah, proceed with a little bit more legal innovation, push the limits a little bit more. Evade the, you know, you can, you can, you know, skirt between the laws. Like that's the scam. That's the, you know, it's, it makes our lives harder, jacks up our prices, um, and makes everything worse.

And it's all there right in the fine print of, you know, I mean, that

[00:36:57] David Sirota: really is the master plan. And what makes it so politically difficult, I think, is that it's operating sort of imperceptibly. It's like thrumming. Behind the scenes, right? It's like you take the deterrent away and in all these little ways.

Yeah. It encourages and allows for the kinds of things that over time. Really, truly like, ruin our lives.

[00:37:19] David Seligman: Absolutely. And you know, right now people are feeling screwed over in all kinds of ways. You could trace a lot of that back, uh, to the fine print of their contracts into the, into John Roberts and the Supreme Court,

[00:37:31] David Sirota: David Seligman with Towards Justice.

He's running for Attorney General of Colorado. He's a Democrat. Uh, we'll put a link in our show notes to towards Justice. David, thanks so much. Hey, thank you very much. Appreciate it.

Thanks for listening to another episode of Lever Time to check out the levers reporting on Ticketmaster, along with David Seligman's organization towards justice. Check out our show notes. Lever Time is a production of the Lever. This episode was produced by Ariella Markowitz. It was edited and mixed by Ron Doyle.

Our theme music is by Nick Campbell. You can subscribe to Lever Time on Apple Podcasts, Spotify, iHeartRadio. The PRX mobile app or wherever you get your podcasts. For ad free episodes, exclusive bonus content and access to the lever's, entire archive of investigative journalism, please consider becoming a premium subscriber.

Head over to lever news.com. To learn more about becoming a paid subscriber, or click the link in this episode. Show notes. I'm David Sirota. We'll be back later this week with another episode of Lever Time.