The Live Nation Arbitration Appeals Moved the Fight to Scope and Formation

Two appellate fronts have replaced the unconscionability fight

The Live Nation arbitration appeals now pending in New York and Nevada are not a continuation of Heckman v. Live Nation Entertainment, Inc. They are a different argument, made at a different stage of the analysis, and the shift is the most consequential development in consumer arbitration doctrine this year.

For four years the litigation against Ticketmaster's terms of use ran along a single track. Claimants argued that the arbitration agreement was unconscionable because of what the arbitration would look like once it began: who the arbitrator would be, what discovery would be permitted, whether one claimant's loss would bind thousands of others. That argument succeeded in the Central District of California in August 2023, was affirmed by the Ninth Circuit on 28 October 2024, and survived a petition for certiorari denied in October 2025. It is settled, at least in the Ninth Circuit, and Live Nation has largely stopped fighting it.

What has replaced it is narrower, earlier, and considerably harder for a drafter to engineer around. In the Southern District of New York, two secondary-market ticket buyers have asked the Second Circuit for a writ of mandamus vacating Judge Arun Subramanian's order of 29 June 2026, which sent their antitrust claims to arbitration. Their argument is not that the procedures are unfair. It is that Section 2 of the Federal Arbitration Act (FAA) does not reach a dispute over tickets bought from a third-party reseller, and that whether the statute applies is a question the court must answer itself before it can send anything anywhere. In Nevada, the Ninth Circuit certified a question to the state supreme court on 31 July 2026 — reported as No. 93076 — asking whether an arbitration agreement is void under Nevada law where the drafter reserves the unilateral right to modify the entire agreement at any time and without notice. That is a formation question. If the answer is yes, there is nothing to enforce, and no amount of procedural redrafting will change it.

Both appeals attack the threshold rather than the machinery. Both were reported in the trade press on 16 September 2026 as parallel developments, which is how they are usually described, but the parallel is doctrinal and not merely chronological. Each one asks a court to decide something before it decides arbitrability, and each one is immune to the remedy Live Nation has used successfully everywhere else — rewriting the provider's rules.

Where the Live Nation arbitration appeals now stand

Three separate proceedings are live, in three different courts, on three different questions. Practitioners tracking the Live Nation arbitration appeals should keep the postures distinct, because a favourable ruling in one has almost no carry-over into the others.

Front	Case	Court	Key date	Question presented	Stage
Ninth Circuit	Heckman v. Live Nation Entertainment, Inc., No. 23-55770	9th Cir., on appeal from C.D. Cal. (No. 2:22-cv-00047-GW-GJS)	Decided 28 Oct. 2024; cert. denied Oct. 2025	Whether the delegation clause and the arbitration agreement incorporating New Era ADR's mass arbitration rules were unconscionable	Concluded; class claims proceeding in the district court
Second Circuit	Jacobson v. Live Nation / Leifer v. Live Nation	S.D.N.Y. (Subramanian, J.); mandamus petition to 2d Cir.	District order 29 June 2026	Whether FAA §2 reaches antitrust claims arising from resale-market purchases, and whether that question is for the court	Petition pending; Jacobson not appealing
Nevada	Paxson v. Live Nation Entertainment, Inc., reported as No. 93076	Nev. Sup. Ct., on certification from the 9th Cir.	Argued 23 June 2026; certified 31 July 2026	Whether an unlimited unilateral right to modify renders the agreement void under Nevada law	Certified question pending; federal appeal stayed

The Heckman line is finished as an appellate matter. The other two are open, and they are the ones worth watching, because they test propositions that generalise well beyond ticketing.

What Heckman decided, and the question it never reached

It is worth being precise about the 2024 holding, because a good deal of secondary commentary has compressed it.

Live Nation had moved to compel arbitration under terms of use that designated New Era ADR, a provider founded in 2020 that Live Nation had engaged, according to the district court, as a prophylactic measure against mass arbitration risk. Live Nation executed its subscription on 21 June 2021 as the provider's first subscriber, and amended its terms of use on 2 July 2021 while a related motion to compel was pending in Oberstein v. Live Nation Entertainment, Inc., 60 F.4th 505 (9th Cir. 2023). Under New Era's rules, a Mass Arbitration was defined as an expedited proceeding covering five or more cases presenting common issues of law and fact.

The district court's opinion, reported at 686 F. Supp. 3d 939 (C.D. Cal. 2023), went further than most in documenting how the regime came to exist. It noted what it described as a remarkable degree of coordination between the provider and Live Nation's outside counsel during the period the rules were being written. That finding did a great deal of work on appeal. Procedural unconscionability in an online contract of adhesion is ordinarily established by the mere fact of a take-it-or-leave-it presentation, which produces a modest quantum on the sliding scale. A record showing that the forum itself was assembled in consultation with the party that would be defending in it produces a great deal more, and it is what allowed the courts to find the agreement unenforceable without any showing that the individual claimants had been misled about anything in particular.

The Ninth Circuit affirmed the denial of the motion to compel arbitration on two independent grounds, exercising jurisdiction under 9 U.S.C. § 16(a) and Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023).

The first ground was unconscionability. The court found a high degree of procedural unconscionability — this was a contract of adhesion presented online, and the court described New Era's rules as internally inconsistent, poorly drafted, and riddled with typos, noting that Live Nation's own counsel struggled to explain them at oral argument. On substantive unconscionability, it identified four features: the mass arbitration protocol, which applied precedent from bellwether decisions to claimants who had no part in them; procedural limitations including the absence of a right to discovery in arbitration; a limited and asymmetric right of appeal; and the arbitrator selection provisions. Because those defects ran through the agreement rather than sitting in one excisable clause, the district court did not abuse its discretion in declining to apply the severability clause. The same reasoning invalidated the delegation clause, which is why the court reached the merits of arbitrability at all rather than routing the gateway questions to a neutral.

The second, alternative ground was that the FAA does not preempt California's rule from Discover Bank v. Superior Court, 113 P.3d 1110 (Cal. 2005), as applied to this agreement — a narrow but pointed application of FAA preemption doctrine. Judge VanDyke concurred separately on a still broader theory: that the FAA simply does not apply to this species of proceeding, because what New Era offered was not the bilateral arbitration AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), contemplated.

Warren Postman of Keller Postman argued for the plaintiffs; Roman Martinez of Latham & Watkins argued for Live Nation. The case is now proceeding in the district court as a class action, with trial reported for July 2027.

What Heckman did not decide is the whole of the present story. The court assumed the FAA governed and assumed the parties had formed an agreement. It then asked whether that agreement was enforceable. Neither assumption was contested, because neither needed to be — the unconscionability argument was winning. The two new appeals contest exactly those assumptions, and a respondent cannot answer them by improving its provider's rules.

The Second Circuit: Section 2 scope as a question for the court

The New York litigation involves ticket buyers who did not buy from Ticketmaster. They bought on the secondary market, from resellers including StubHub, and then sued Live Nation and Ticketmaster on antitrust theories. Live Nation moved to compel arbitration on the strength of the terms of use those buyers had accepted in connection with other, unrelated Ticketmaster transactions.

Judge Subramanian granted the motion on 29 June 2026. That the challenge arrives as a petition for a writ of mandamus rather than an ordinary appeal is itself a consequence of the FAA's asymmetric appellate provisions. Section 16(a) of the statute permits an immediate appeal from an order refusing to compel arbitration — which is how Heckman reached the Ninth Circuit in 2024. Section 16(b) forecloses an interlocutory appeal from an order granting one. A claimant sent to arbitration ordinarily has no route to an appellate court until the arbitration is over and a final judgment enters, by which point the merits have been decided in the forum the claimant said was unavailable. Mandamus under the All Writs Act is the recognised workaround, and it is a demanding one: the petitioner must show a clear and indisputable right to relief and no other adequate means of obtaining it. Petitioners in this posture therefore have an incentive to frame the issue as a pure question of law that the district court had no discretion to bypass — which is exactly how the scope argument has been framed.

The mandamus petitioners — Abraham Leifer and Tamara Stevens; the third plaintiff, James Jacobson, is not pursuing the appeal — argue that the order skipped a step. Section 2 of the FAA makes enforceable a written arbitration provision in a contract evidencing a transaction involving commerce, and it makes enforceable a provision to settle a controversy arising out of that contract or transaction. Their contention is that a claim about a purchase from a third-party reseller does not arise out of a contract with Ticketmaster, that the statute therefore never attaches, and that a court — not an arbitrator — must decide whether the statute attaches.

The doctrinal anchor is Davitashvili v. Grubhub Inc., 131 F.4th 109 (2d Cir. 2025), decided 13 March 2025 in No. 23-521. There the Second Circuit confronted a platform arbitration clause drafted to capture disputes that in any way related to the customer's use of the platform, and held that such language could not be stretched to reach antitrust claims about restaurants the customer had never ordered from through the platform. The clause had to bear a sufficient connection to the transaction it governed. The court nonetheless compelled the claims against two other defendants on delegation grounds, which makes the decision unusually useful to both sides and is the reason it appears in briefs on both sides of the present dispute.

Davitashvili did not arrive in isolation. The Second Circuit issued an unusual run of published arbitration decisions in 2025 — among them Doyle v. UBS Financial Services, 144 F.4th 122 (2d Cir. 2025), Sudakow v. CleanChoice Energy, Inc., 153 F.4th 280 (2d Cir. 2025), and Frazier v. X Corp., 155 F.4th 87 (2d Cir. 2025). Read together they describe a court that is willing to enforce arbitration agreements but unwilling to treat expansive boilerplate as self-executing, and that expects the party seeking to compel to demonstrate the fit between the clause and the claim rather than assert it. That is the environment into which the mandamus petition lands, and it is materially different from the one that produced a decade of decisions treating any doubt about scope as resolvable in favour of arbitration.

The structural point the petitioners press is the one most likely to matter beyond ticketing. A delegation clause transfers gateway questions — is this dispute arbitrable, is the agreement valid — to the arbitrator. But a delegation clause is itself a term of an arbitration agreement, and an arbitration agreement is enforceable under the FAA only if Section 2 reaches it. A clause cannot supply the statutory predicate for its own enforcement. If that reasoning holds, then whenever a respondent invokes a contract other than the one the claim arises from, the claimant has a court-decided question available before delegation is ever reached.

The practical significance for mass arbitration is considerable. A large share of consumer inventories are assembled from customers whose relationship with the respondent is diffuse: an account opened years earlier, a single app download, a loyalty programme, a purchase from an intermediary. Respondents have generally treated that diffuseness as an asset, because broad terms of use written to cover any dispute of any kind sweep all of it in. The Second Circuit petition treats it as a liability. If the transaction generating the claim is not the transaction containing the clause, the clause may not reach the claim at all — and the question of whether it does belongs to a judge.

Nevada: an agreement the drafter can rewrite at will

The second front is narrower on its facts and potentially broader in effect.

Erin Paxson bought five tickets through Front Gate Ticketing Solutions, a Live Nation subsidiary, for the 2022 Lovers & Friends festival in Las Vegas. The festival gave rise to contract-based claims, and a Nevada federal court compelled arbitration in March 2025. On appeal, the Ninth Circuit heard argument on 23 June 2026 and, on 31 July 2026, certified a question of Nevada law to the state supreme court and stayed the appeal. The certified question asks whether an arbitration agreement is void under Nevada law where the drafter reserves the unilateral right to modify the entire agreement at any time and without notice. The panel described Live Nation's alternative arguments as not persuasive. At argument, one judge called the formation-related delegation provision clearly unlawful and said he was very disappointed by it. Jonathan Hilton appeared for Paxson; Eric Kazerian for Front Gate, arguing that a single transaction supported by consideration sufficed.

This is the illusory promise problem, and it is old contract law wearing modern clothes. If one party may rewrite every term of a bargain at any moment, that party has promised nothing, and a promise of nothing is not consideration. The doctrine long predates the FAA and has nothing to do with hostility to arbitration, which is precisely why it is dangerous to respondents: it is a generally applicable contract defence of the kind Section 2's saving clause preserves, and it is therefore not vulnerable to a preemption argument in the way that arbitration-specific rules are.

Two features of the posture deserve attention.

First, the question was certified rather than decided. The Ninth Circuit could have affirmed, reversed, or certified, and it chose to hand the question to the court that owns Nevada contract law. That choice signals a panel unwilling to guess, and it means the answer, when it comes, will be authoritative state law rather than a federal prediction — binding on every Nevada case and highly persuasive elsewhere, since unilateral-modification clauses are near-universal in consumer terms of use.

Second, an adverse answer is not curable by amendment in the way a defective protocol is. A respondent that loses on unconscionability can rewrite its rules and re-present the clause to the next claimant. A respondent that loses on formation has no agreement with the claimants who already accepted the defective terms. Fixing the clause going forward does nothing for the existing inventory, which is where the exposure lives.

Curing by stipulation, and what a stipulation cannot fix

Against that background, the June 2026 win in the Southern District of New York is instructive, because of how it was obtained.

New Era ADR revised its rules in 2024. The revision added express rights to discovery in arbitration, removed the evidentiary limitations the Ninth Circuit had criticised, and substituted a narrower rank-and-strike process for the arbitrator replacement mechanism. Those changes address three of the four Heckman defects directly.

The fourth — the mass arbitration protocol itself, under which a bellwether outcome would be applied to claimants who had not participated — was not addressed by rule change. It was addressed by stipulation. Live Nation and Ticketmaster stipulated that the mass arbitration protocol would not apply to these claimants, that the asymmetric appeal provision would not apply, and that no neutral holding an ownership stake in New Era ADR would be appointed. Judge Subramanian found the plaintiffs had not shown the delegation clause unenforceable, rejected a duress theory advanced by the secondary-market purchasers, and found no impropriety in the relationship between the provider and defence counsel.

The technique works, but it has three limits that practitioners should price in.

It is retail, not wholesale. A stipulation binds the parties in the case in which it is made. It does not amend the terms of use, and it does not bind anyone else. A respondent facing a genuine mass arbitration with thousands of claimants would need to make the same concession in every proceeding, and each concession is a public document that the next claimant's counsel will attach to the next opposition.

It concedes the point it moots. Stipulating that the mass arbitration protocol will not apply is a representation that the agreement is more enforceable without the protocol than with it. That is not a fatal admission — parties narrow positions for litigation reasons all the time — but it makes the protocol very hard to defend on the merits anywhere else, and it undercuts the argument that the protocol was a legitimate case-management device rather than a deterrent.

It cannot reach threshold defects. This is the reason the two new appeals matter. A stipulation about how an arbitration will be conducted presupposes that there is an enforceable agreement to arbitrate and that the FAA applies to it. Neither the Second Circuit petition nor the Nevada certified question can be answered by promising better procedures, because neither is about procedures. A respondent cannot stipulate its way into statutory coverage, and it cannot stipulate its way into a contract that was never formed.

The quiet provider migration

One further development belongs in the picture, because it is the clearest signal of how the respondent side reads its own position.

Ticketmaster's terms of use were revised in August 2025 to route disputes to JAMS rather than New Era ADR. That is a return to the provider Live Nation had used before the 2021 switch — the switch that supplied much of the procedural unconscionability narrative in Heckman, since customers who had agreed to one regime found themselves bound to another.

The migration is rational. JAMS issued Mass Arbitration Procedures and Guidelines effective May 2024, with a trigger of seventy-five claimants represented by the same or coordinated counsel, and those procedures apply only where the parties have expressly adopted them. The American Arbitration Association (AAA) operates a broader discretionary regime. Either is a mainstream choice with a documented rulebook, an established neutral roster, and no ownership relationship with the respondent's counsel. A drafter who has watched a bespoke provider arrangement generate four years of adverse appellate law will reasonably conclude that incorporation of provider rules from an established institution is cheaper than innovation, even if the institutional rules are less favourable on paper.

There is a second-order consequence worth noting. A change of provider in the terms of use is itself an exercise of the modification right, and it is the exercise that generated the procedural unconscionability narrative the first time. A drafter relying on an unlimited amendment power to move away from a provider whose rules proved unenforceable is, in the same instrument, demonstrating the breadth of the power the Nevada certified question asks about.

But the migration also illustrates the asymmetry the new appeals exploit. Changing providers changes the machinery. It does not change who the claimant bought from, and it does not change whether the drafter reserved the right to rewrite the bargain.

Questions practitioners are asking

Does the Second Circuit petition threaten delegation clauses generally?

No. It threatens the use of a delegation clause to answer a question that logically precedes it. The petitioners accept that a valid delegation clause sends arbitrability to the arbitrator. Their argument is that a court must first find that the FAA reaches the dispute, because the delegation clause derives its enforceability from the same statute. Clauses in contracts that plainly govern the transaction generating the claim are unaffected.

Is the Nevada question limited to Nevada?

Formally, yes — it is a certified question of Nevada contract law, and the answer will bind only Nevada. Practically, no. Illusory-promise analysis of unlimited modification rights is a feature of contract law in most states, and a reasoned decision from a state supreme court squarely addressing a consumer terms-of-use clause will be cited immediately in every jurisdiction where the same clause appears. Because the defence is generally applicable rather than arbitration-specific, it is also comparatively insulated from FAA preemption.

Has Heckman been superseded by the June 2026 ruling?

No. The two decisions address different agreements. Heckman addressed New Era ADR's original rules, unmodified and unstipulated. The Southern District of New York addressed the 2024 revised rules as further narrowed by defence stipulations that removed the mass arbitration protocol, the asymmetric appeal, and any owner-neutral. The later ruling shows what it takes to make the regime enforceable; it does not rehabilitate the version the Ninth Circuit rejected.

Why is the New York challenge a mandamus petition rather than an appeal?

Because 9 U.S.C. § 16 permits an immediate appeal from an order denying a motion to compel arbitration but not from an order granting one. A claimant who loses that motion is generally stuck until the arbitration concludes. Mandamus is the available alternative, and its demanding standard shapes the argument: the petitioners must present the issue as one the district court was obliged to decide and did not, which is why the framing is jurisdictional rather than evaluative.

Does any of this affect the fee structure of a mass arbitration?

Not directly, but it changes when fees are incurred. Threshold litigation happens in court, on a motion, before any filing fees attach at a provider. A respondent that defeats a mass filing on scope or formation never pays the initiation fee at all; a respondent that litigates unconscionability usually does, because those arguments are typically joined after demands are filed. For claimants' firms, the same sequencing means the threshold fight is funded out of litigation budget rather than filing costs — a meaningfully different cash-flow profile from the one that made batching economics work.

What should a respondent do if its own terms contain an unlimited modification clause?

Treat it as a formation exposure rather than a housekeeping item, and understand that amending it now protects only prospective agreements. The claimants already in the inventory accepted the old terms. Whether those agreements formed is a question that will be answered under the law of each claimant's state, on the language as it stood, and it is answered before anyone reaches the arbitration clause.

What the Live Nation arbitration appeals mean for drafters, respondents, and claimants' counsel

The Live Nation arbitration appeals are useful precisely because Live Nation has already run the experiment that most respondents are only contemplating. It built a bespoke mass arbitration deterrent, lost on it comprehensively, rebuilt the procedures, won a case by giving the deterrent away, and is now defending on grounds that have nothing to do with any of it.

For drafters. The scope clause and the modification clause now carry more risk than the procedural clauses, and they receive far less attention. A term that purports to cover any dispute of any kind with the company is not obviously an asset after Davitashvili; it invites the argument that the clause was never tied to a transaction at all. A reservation of the unilateral right to change everything at any time without notice is worse: it is the standard drafting convention that the Nevada certified question puts directly in issue. The defensible pattern is the narrower one — modification prospective only, with notice, with the existing terms governing disputes that have already accrued, and with the arbitration clause tied to the transactions it is meant to cover rather than to the customer relationship at large. That drafting is less aggressive and considerably more likely to survive a motion to compel arbitration.

For respondents. Sequence the defences properly and expect the claimant side to do the same. Where the claimant's purchase came through an intermediary, be prepared to establish the nexus between the claim and the contract as a factual matter rather than assuming the breadth of the clause does the work. Where the terms contain an unlimited modification right, assess formation state by state before filing, because a loss on formation is not curable and will be cited against the whole inventory. And recognise that the stipulation technique, while effective, is a per-case expense that scales linearly with claimant count — which is the opposite of what a deterrence strategy is supposed to achieve.

For claimants' counsel. The threshold arguments are cheaper than the unconscionability arguments and they are decided by a judge. Unconscionability requires a developed record on procedure, provider relationships, and the economics of the forum. Scope and formation turn on the text of the agreement and the circumstances of the purchase, both of which are known at the outset. In an inventory of any size, sorting claimants by how they transacted — direct purchase, resale market, third-party platform, gift — is now a triage step with real doctrinal consequences, because the subset with attenuated purchase paths may be litigable in court while the rest proceed through batching in arbitration.

The broader lesson is about where the pressure moves when one defence closes. Four years of litigation established that a respondent cannot design an arbitral forum so inhospitable that it deters the claims it was built to handle. That holding is durable and it is being applied. But it addressed only the middle of the analysis. The threshold — whether the statute reaches the dispute, and whether the parties ever agreed to anything — was left where it had been for decades, largely unexamined because nobody needed to examine it. Two appellate courts are now examining it, and the answers will apply to every consumer arbitration clause in the country, not merely to the ones that tried something clever.