Vasell v. SeatGeek, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

TORELL VASELL, SHANTEE GRANT,

SEAN BIEDERMAN, ALEXANDER

ZAJAC, and TODD CAREY individually

and on behalf of all others similarly

situated, MEMORANDUM & ORDER

24-cv-00932 (NCM) (JRC)

Plaintiffs,

– against –

SEATGEEK, INC.,

Defendant.

NATASHA C. MERLE, United States District Judge:

Defendant SeatGeek, Inc. (“SeatGeek”) moves to compel arbitration or,

alternatively, to dismiss plaintiffs’ Amended Class Action Complaint (the “FAC”) under

Federal Rule of Civil Procedure 12(b)(1), for lack of standing, and under Federal Rule of

Civil Procedure 12(b)(6), for failure to state a claim. Def.’s Mem. of Law in Supp. of Mot.

to Dismiss, ECF No. 24-1 (the “Motion”).1 Upon consideration of the parties’ written

submissions, the Court hereby GRANTS defendant’s Motion to Compel Arbitration and,

with respect to plaintiff Zajac, DENIES the Motion to Dismiss.

BACKGROUND

Defendant SeatGeek owns and operates a website, SeatGeek.com. FAC ¶ 13, ECF

No. 13. Defendant charges online purchasers for tickets to live events such as concerts,

1 The Court hereinafter refers to plaintiff’s Response in Opposition to defendant’s

Motion, ECF No. 25, as the “Opposition”; and the Reply Memorandum in Support of

defendant’s Motion, ECF No. 26, as the “Reply.”

athletic events, and plays. FAC {/] 2, 8, 10, 11, 12; Opp’n 10—11.2 Users may purchase

tickets via SeatGeek’s website or through its mobile device application.

Decl. of Paula Giuliani § 4, ECF No. 24-3.

I. The Website

Plaintiffs are four3 individuals who purchased event tickets through SeatGeek’s

website. When the user purchases a ticket on SeatGeek’s platform or signs up for a

SeatGeek account, he or she must agree to the Terms of Use active at the time. Giuliani

Decl. {| 7, 18.

Option Page (Figure 1): When purchasing tickets on SeatGeek’s website, a user

first encounters a page (the “Option Page”) listing available seats for a selected event. See

FAC { 21, Fig. 1. Among other things, this page quotes one price for each seat, displays the

location of the seat, and calibrates the quality of the “[d]Jeal” for purchasing that seat.

FAC {| 21, Fig. 1 (displaying three “Great Deal[s]”).

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Figure 1: Option Page

2 Throughout this Order, page numbers for docket filings refer to the page numbers

assigned in ECF filing headers.

3 Plaintiffs “elected to withdraw Plaintiff Carey’s claim.” Pl.’s Ltr. 1, ECF No. 16.

Selection Page (Figure 2): Once a user selects a seat, they are taken to a second

page (the “Selection Page”) that lists a price, greater than the previously quoted price, for

the seat they have selected. FAC { 23, Fig. 2. The Selection Page discloses the inclusion of

additional fees in this price. FAC { 23, Fig. 2.

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Figure 2: Selection Page

Billing Information Page (Figure 3): If the user continues with the transaction, a

third page prompts the user to input payment information (the “Billing Information

Page”). FAC {| 24, Fig. 3. On the right side of this page, the price is broken down: the cost

of the ticket itself, the ticket’s attendant “Fees,” and then a “Total” price combining the

ticket cost and fees. FAC {| 24, Fig. 3.

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Figure 3: Billing Information Page

If users decide to purchase the selected ticket at the Total price, they proceed to a

final checkout page where they must “click a button” to place their order. Giuliani Decl.

412. Above the “Place order” button, SeatGeek informs users that by “clicking the button

below to make a purchase,” they agree to SeatGeek’s “Terms of Use, and acknowledg[e

they] have read [SeatGeek’s] Privacy Notice.” Giuliani Decl. {] 12.4

II. The Terms of Use (“TOU”)

At issue in this case is SeatGeek’s Terms of Use agreement that was in effect

beginning September 26, 2023.5 ECF No. 24-6 (the “TOU”).

4 Defendant represents that, prior to October 2023, the language above the “Place

order” button was “materially the same and read: “By purchasing a ticket, you agree to

have an account with SeatGeek and be bound to the Terms of Use and Privacy Policy.”

Giuliani Decl. 12 n.2.

5 Plaintiff Edwards allegedly used SeatGeek’s website to purchase tickets “on or

around March 11, 2023.” See Edwards Compl. 417, Edwards v. SeatGeek, Inc., No. 24-cv-

03288 (E.D.N.Y. May 2, 2024), ECF No. 1. The Court takes judicial notice that SeatGeek’s

TOU updated on March 3, 2023(the “March 2023 TOU”), were in effect at this time. Wells

Fargo Bank v. Wrights Mill Holdings, 127 F. Supp. 3d 156, 167 (S.D.N.Y. 2015) (“[A] court

may take judicial notice of information publicly announced on a party’s website, as long

as the website’s authenticity is not in dispute and it is capable of accurate and ready

The TOU includes a “Dispute Resolution” section that features provisions

regarding mandatory arbitration and class action waivers, as well as a preamble stating

that the agreement’s “TERMS ARE SUBJECT TO CHANGE BY SEATGEEK IN ITS SOLE

DISCRETION AT ANY TIME.” TOU 2. The TOU also states that, if the user does “not

agree to any change(s),” they “shall stop using” SeatGeek’s services and that continued

use of SeatGeek’s services “constitutes [the user’s] acceptance of such change(s).” TOU 2

(hereinafter referred to as the “Continued Used Provision”).

The mandatory arbitration provision is found in a subsection titled “Applicability

of Arbitration Agreement.” TOU 9 § 14.4. Specifically, the TOU states: “any dispute, claim,

or controversy between you and SeatGeek . . . arising out of, relating in any way to, or in

connection with the Terms, the SeatGeek website . . . or your use of the SeatGeek website

. . . your personal information, or any aspect of your relationship with SeatGeek, including

any dispute, claim, or controversy that arose before you accepted these Terms, regardless

of whether prior versions thereof required arbitration . . . shall be resolved exclusively by

final, binding arbitration . . . .” TOU 9 § 14.4 (emphasis added).

The TOU also includes a separate subsection on “Batch Arbitration,” which

stipulates that where “there are [100] or more individual arbitrations of a substantially

similar nature filed against SeatGeek . . . within a [90] day period,” National Arbitration

determination.”). The Court examined the March 2023 TOU using the Internet Archive

Wayback Machine (https://web.archive.org). See SeatGeek TOU Mar. 3, 2023, Internet

Archive Wayback Machine,

https://web.archive.org/web/20230315065258/https://seatgeek.com/terms

[https://perma.cc/FUA7-VX5X] (last visited Jan. 17, 2025). See also Cosgrove v. Oregon

Chai, Inc., 520 F. Supp. 3d 562, 581 n.5 (S.D.N.Y. 2021) (taking judicial notice of a former

version of defendant’s website, accessed via archive.org, at the motion to dismiss stage);

Thorne v. Square, Inc., No. 20-cv-05119, 2022 WL 542383, at *1 (E.D.N.Y. Feb. 23,

2022), appeal withdrawn, No. 22-542, 2022 WL 2068771 (2d Cir. Apr. 14, 2022) (taking

judicial notice of archived website pages on motion to compel arbitration).

and Mediation shall administer arbitration in “batches of 100 claims per batch.” TOU 10

§ 14.7.

Finally, as relevant to this dispute, the TOU contains a “Class Action Waiver”

subsection. See TOU 10 § 14.13. This condition specifies that SeatGeek and its users may

only “BRING CLAIMS AGAINST THE OTHER” on an individual basis and “NOT ON A

CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS,” and that parties waive all rights

to have any dispute brought, heard, administered, resolved, or arbitrated on a class basis.

TOU 10 § 14.13.

III. The Plaintiffs

Plaintiffs in this action all transacted with SeatGeek at some point between

September 2021 and January 2024. Plaintiffs Vasell,6 Grant, and Biederman are

heretofore referred to as the “Arbitration Plaintiffs” because they do not allege having

opted out of any TOU-based arbitration agreement. Plaintiff Alexander Zajac purchased

a ticket on SeatGeek’s website and availed himself of SeatGeek’s unilateral opt-out right.

See Mot. 8 n.2. Neither party disputes that Zajac is “not bound to arbitrate.” Reply 10.

Consolidated plaintiff Edwards7 nowhere alleges having exercised SeatGeek’s unilateral

6 The pleadings and briefs in this case include multiple spellings of plaintiff Tor(r)ell

Vas(s)ell’s name. For purposes of this Motion, the Court adopts the spelling appearing on

ECF: “Torell Vasell.”

7 By court order, the putative class action Edwards v. SeatGeek, Inc. was

consolidated with this action. See Consolidation Stipulation & Order, Edwards v.

SeatGeek, Inc., No. 24-cv-03288 (E.D.N.Y. Aug. 20, 2024), ECF No. 17. The Court

subsequently so-ordered the parties’ joint stipulation that Ashley Edwards, plaintiff in

Edwards, would “join the Vasell plaintiffs for all purposes and . . . be bound by any ruling

as to SeatGeek’s Motion.” See Briefing Stipulation & Order 2, ECF No. 23. As discussed

infra, plaintiff Edwards is compelled to arbitrate her claims.

opt-out right and is thus assumed to have originally accepted the March 2023 TOU’s

arbitration provisions.

Additionally, all plaintiffs in this action purchased tickets on SeatGeek’s website,

and at least two plaintiffs signed up for a SeatGeek account. FAC ¶¶ 8–11. To purchase

tickets on SeatGeek’s website, each plaintiff selected the “Place order” button on the

Billing Information page, which informed them that, in sum and substance, placing an

order indicated agreement with SeatGeek’s TOU. See Giuliani Decl. ¶¶ 12, 19, 23; Ex. G 2,

ECF No. 24-10.

On September 15, 2021, plaintiff Vasell created a SeatGeek account.

Giuliani Decl. ¶ 16. At that time, a Terms of Use dated July 2021 was in effect (the “July

2021 TOU”). Giuliani Decl. ¶ 16. On September 12, 2023, plaintiff Vasell purchased three

tickets to see “Rod Wave with Ari Lennox, Toossi, and G Herbo” on SeatGeek for a total

of $315.72—this total included three tickets priced at $74.00 each, and three ticket fees of

$31.24 each. FAC ¶ 8. In placing his order, plaintiff Vasell accepted a Terms of Use dated

July 1, 2023 (the “July 2023 TOU”). See Giuliani Decl. ¶ 23. On September 26, 2023, he

received and opened email notice of the updated September 2023 TOU. Giuliani Decl. ¶

24.

Plaintiff Grant created a SeatGeek account on October 21, 2023. Giuliani Decl. ¶ 17.

At that time, the TOU was in effect. Giuliani Decl. ¶¶ 17, 22. On the same day, Grant

purchased two tickets for “Blippi Live” on SeatGeek for a total of $191.74—the cost of two

tickets priced at $68.00 each, with a fee of $27.87 per ticket. FAC ¶ 9. In placing her order,

plaintiff Grant accepted the TOU. See Giuliani Decl. ¶ 19.

On January 28, 2024, plaintiff Biederman purchased two tickets to an NCAA

basketball event on SeatGeek for a total of $210.72—the cost of two tickets priced at

$86.00 each, with a fee of $29.36 per ticket (less $20.00 in discounts). FAC ¶ 10. At the

time of his purchase, the TOU was in effect. Giuliani Decl. ¶ 19. In placing his order,

plaintiff Biederman accepted the TOU. See Giuliani Decl. ¶ 19.

On October 25, 2023, plaintiff Zajac purchased two tickets to “Cabaret at the Kit

Kat Club” on SeatGeek for a total of $1,329.10—the cost of two tickets priced at $599.00

each, with a fee of $65.55 per ticket. FAC ¶ 11. At the time of his purchase, the TOU was

in effect. Giuliani Decl. ¶ 19. In placing his order, plaintiff Zajac accepted the TOU. See

Giuliani Decl. ¶ 19. Two days later, Zajac opted out of the TOU’s arbitration clause.

Giuliani Decl. ¶¶ 27–28; Mot. 8 n.2.

IV. Section 25.07

Plaintiffs argue that defendant’s website violates New York Arts & Cultural Affairs

Law § 25.07 (“Section 25.07”) by both not providing the total price on the Selection Page

and not clearly disclosing added fees on the final checkout page. FAC ¶¶ 63, 65. On August

29, 2022, the New York State legislature passed Section 25.07, mandating that any

“platform that facilitates the sale or resale of tickets shall disclose the total cost of the

ticket, inclusive of all ancillary fees that must be paid in order to purchase the ticket, and

disclose in a clear and conspicuous manner the portion of the ticket price stated in dollars

that represents . . . any [] fee or surcharge to the purchaser.” N.Y. Arts & Cult. Aff. Law

§ 25.07(4). The “total cost and fees shall be displayed in the ticket listing prior to” the user

selecting the ticket for purchase. Id. Section 25.33 of the same chapter provides plaintiffs

a “[p]rivate right of action” to seek injunctive relief, actual or statutory damages, and fees

for violations of Section 25.07. N.Y. Arts & Cult. Aff. Law § 25.33.

MOTION TO COMPEL ARBITRATION

I. Legal Standard

Under Section 2 of the Federal Arbitration Act (“FAA”), arbitration agreements are

generally “valid, irrevocable, and enforceable, save upon such grounds as exist at law or

in equity for the revocation of any contract.” 9 U.S.C. § 2. The Act establishes “a liberal

federal policy favoring arbitration agreements.” New Prime Inc. v. Oliveira, 586 U.S. 105,

120 (2019).8 The FAA “leaves no place for the exercise of discretion by a district court,”

instead mandating “arbitration on issues as to which an arbitration agreement has been

signed.” Daly v. Citigroup Inc., 939 F.3d 415, 421 (2d Cir. 2019).

In enforcing an arbitration clause, courts determine (1) “whether the parties have

entered into a valid agreement to arbitrate, and, if so, [(2)] whether the dispute at issue

comes within the scope of the arbitration agreement.” In re Am. Exp. Fin. Advisors Sec.

Litig., 672 F.3d 113, 128 (2d Cir. 2011). The FAA requires courts to enforce arbitration

agreements “according to their terms.” Id. at 127. And any ambiguities as to the scope of

the arbitration clause must be “resolved in favor of arbitration.” See Bechtel do Brasil

Construcoes Ltda. v. UEG Araucaria Ltda., 638 F.3d 150, 155 (2d Cir. 2011) (citing Moses

H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983)).

The standard of review for a motion to compel arbitration is “similar to that

applicable for a motion for summary judgment.” Zachman v. Hudson Valley Fed. Credit

Union, 49 F.4th 95, 101 (2d Cir. 2022). As with a motion for summary judgment, the Court

“considers all relevant, admissible evidence submitted by the parties and contained in

pleadings, depositions, answers to interrogatories, and admissions on file, together with

8 Throughout this Opinion, the Court omits all internal quotation marks, footnotes,

and citations, and adopts all alterations, unless otherwise indicated.

affidavits, and draws all reasonable inferences in favor of the non-moving party.”

Meyer v. Uber Techs, Inc., 868 F.3d 66, 74 (2d Cir. 2017). If the undisputed factual record

supports a legal determination as to arbitrability, the Court “may rule on the basis of that

legal issue and avoid the need for further court proceedings.” Wachovia Bank, Nat’l Ass’n

v. VCG Special Opportunities Master Fund, 661 F.3d 164, 172 (2d Cir. 2011). After the

moving party shows that “an agreement to arbitrate existed,” “the burden shifts to the

party seeking to avoid arbitration to show the agreement to be inapplicable or invalid.”

Zachman, 49 F.4th at 102.

The Court “should generally rule on a motion to compel arbitration before

proceeding to a merits-based motion to dismiss.” Kaiser v. StubHub, Inc., No. 24-cv-

00044, 2024 WL 3445059, at *3 (S.D.N.Y. July 17, 2024) (quoting Harris v. TD

Ameritrade Inc., 338 F. Supp. 3d 170, 181 (S.D.N.Y. 2018)).

II. Discussion

This dispute primarily centers on the second step of Court’s analysis. See In re Am.

Exp. Fin. Advisors Sec. Litig., 672 F.3d at 128 (describing two-step framework). The

parties do not dispute that the TOU contains a valid arbitration agreement, and the Court

discerns no reason to find otherwise. However, the parties raise several disputes as to the

scope of that arbitration agreement: whether SeatGeek’s TOU applies to statutory

violations occurring before a user signs them; whether the arbitrability of plaintiffs’

claims is a question for an arbitrator; whether the TOU is unconscionable and therefore

unenforceable; and whether the TOU’s class action waiver applies to the Arbitration

Plaintiffs’ claims.

For the reasons that follow, the Court finds (i) the arbitrability of the Arbitration

Plaintiffs’ claims is a question for the arbitrator given the TOU’s broad delegation clause,

(ii) that the TOU applies retroactively, thus binding the Arbitration Plaintiffs, and (iii)

plaintiffs’ challenge to the conscionability of the TOU is a question for the arbitrator. As

such, the motion to compel arbitration is granted as to the Arbitration Plaintiffs.

A. Applicable TOU

As an initial matter, the Court finds that the TOU applies to all of the Arbitration

Plaintiffs’ claims.

Plaintiff Vasell accepted a prior version of the TOU, the July 2023 TOU, when he

used SeatGeek’s website to purchase tickets to an event on September 12, 2023. FAC ¶ 8;

Giuliani Decl. ¶ 23. Further, Vasell does not dispute, nor does any evidence refute, that he

agreed to the TOU by opening SeatGeek’s “Notice Email.” See Reply 8; Ex. I 2, ECF No.

24-12. Specifically, it is undisputed that on September 26, 2023, Vasell opened the Notice

Email, which informed him that SeatGeek had updated its TOU and that “[f]or existing

SeatGeek users, like you, the effective date of these updated Terms begins on the date of

your next purchase or sale on SeatGeek, or on October 10, 2023, whichever comes first.”

Giuliani Decl. ¶¶ 24–25 (emphasis added). Here, the record does not suggest that Vasell

objected to the updated terms prior to October 10, 2023. Accordingly, the Court finds that

Vasell accepted the terms of the TOU.

Plaintiff Grant accepted the TOU when she both signed up for a SeatGeek account

and purchased tickets on the website on October 21, 2o23. FAC ¶ 9. Plaintiff Biederman

also agreed to the TOU when he purchased tickets on the SeatGeek website on January

28, 2024. FAC ¶ 10. Additionally, both because she agreed to be bound by this order and

because the March 2023 TOU included similar terms concerning retroactivity and

arbitrability, the Court analyzes plaintiff Edwards’ claims under the TOU.

B. Existence of Arbitration Agreement

Before addressing the parties’ contentions as to the scope of the arbitration

agreement, the Court must first determine whether each Arbitration Plaintiff agreed to

arbitrate. See In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d at 128. Whether an

agreement to arbitrate exists is determined by state contract law. Teta v. Go New York

Tours, Inc., --- F. Supp. 3d ----, No. 24-cv-01614, 2024 WL 3252907, at *3 (S.D.N.Y. July

1, 2024) (citing Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016)). Neither

party disputes that New York law governs in this case. See Mot. 9; Opp’n 16. To form a

valid contract under New York law, there must be a “meeting of the minds” and “a

manifestation of mutual assent.” Starke v. SquareTrade, Inc., 913 F.3d 279, 288–89 (2d

Cir. 2019) (“Generally, courts look to the basic elements of the offer and the acceptance

to determine whether there was an objective meeting of the minds sufficient to give rise

to a binding and enforceable contract.”).

Courts have grouped “[i]nternet-based agreements between users of a platform

and a service provider” into a number of categories, including “browsewrap,” and “sign-

in-wrap” agreements. Feld v. Postmates, Inc., 442 F. Supp. 3d 825, 829 (S.D.N.Y. 2020).

A “browsewrap” agreement “post[s] terms and conditions on a website via a hyperlink at

the bottom of the screen.” Meyer, 868 F.3d at 75. “[S]ign-in-wrap” agreements notify

consumers “of the existence and applicability of the site’s [TOU] when proceeding

through the website’s sign-in or login process.” Feld, 442 F. Supp. 3d at 829.

Both types of interfaces are at issue in this case. All of the Arbitration Plaintiffs’

claims involve browsewrap agreements. See supra Part C (explaining that each plaintiff

indicated agreement with the TOU by placing an order via the SeatGeek website).

Plaintiffs Vasell and Grant’s claims also involve sign-in-wrap agreements. The Arbitration

Plaintiffs do not dispute that they assented to the TOU via the browsewrap and sign-in-

wrap agreements. See generally Opp’n; TOU 9–11 § 14. Regardless, the record supports a

finding that the parties entered into an agreement to arbitrate by manifesting mutual

assent in accordance with New York contract law. The uncluttered layout and clearly

visible text on SeatGeek’s checkout page provided “reasonably conspicuous” notice that,

by clicking the “Place order” button, the user also agreed to the TOU. Meyer, 868 F.3d at

78–79; Giuliani Decl. ¶¶ 12–13; see also Mot. Ex. G 2, ECF No. 24-10 (depicting the

checkout page). Likewise, the account sign-up page displayed distinct grey text, an

uncluttered layout, and underlined hyperlinks to the TOU providing similarly

conspicuous notice that, by clicking the “Sign up” button, the user also agreed to the TOU.

Meyer, 868 F.3d at 78–79; Giuliani Decl. ¶¶ 14–15; see also Mot. Ex. H 2, ECF No. 24-11

(depicting the sign-up page).

Accordingly, the Court finds that the Arbitration Plaintiffs and defendant entered

into an agreement to arbitrate pursuant to the TOU (the “Arbitration Agreement”).

C. Scope of Arbitration Agreement

Given that a valid arbitration agreement existed between the parties, the Court now

considers “whether the dispute at issue comes within the scope of the arbitration

agreement.” In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d at 128. In doing so, the

Court must “resolve any doubts concerning the scope of arbitrable issues in favor of

arbitrability.” Daly, 939 F.3d at 421. Only where “it may be said with positive assurance

that the arbitration clause is not susceptible of an interpretation that covers the asserted

dispute” may the Court decline to compel arbitration under the FAA. Id. For the reasons

stated below, the Court finds that the Arbitration Agreement governs the Arbitration

Plaintiffs’ current dispute with SeatGeek.

i. Pre-Agreement Conduct

Plaintiffs argue that the TOU does not apply to defendant’s “pre-agreement

marketing conduct,” which forms the basis of their Section 25.07 claims. Opp’n 21.

Defendant responds that (1) the TOU “expressly encompass[es] claims that arose before

users[] assent[ed],” Reply 8; and that, in any event, (2) the law does not forbid the Court

from applying relevant arbitration clauses to “claims that accrued prior to users’ assent to

[the] TOU,” Reply 9.

First, the TOU includes express retroactivity language. Specifically, the Arbitration

Agreement applies to “any dispute, claim, or controversy” between the user and SeatGeek,

“including [those] that arose before [the user] accepted these Terms, regardless of

whether prior versions thereof required arbitration.” TOU 9 § 14.4 (emphasis added).9

Arbitration clauses with similarly broad terms covering “any dispute, claim or

controversy” have been given retroactive effect in this Circuit. See, e.g., Plazza v. Airbnb,

Inc., 289 F. Supp. 3d 537, 551 (S.D.N.Y. 2018).10 By its terms, the Arbitration Agreement

9 Plaintiffs fail to explain the relevance the July 2021 TOU, whether or not it

contained similar retroactivity language. See Opp’n 23. As noted, the Arbitration Plaintiffs

are all indisputably bound by the TOU because they each purchased tickets on SeatGeek’s

website, created a SeatGeek account, or opened an email providing notification of the

updated TOU. Plaintiffs cannot make the July 2021 TOU pertinent by for the first time

mentioning in their Opposition that “absent class member and prospective plaintiff,

Themis Pappas” was subject to the July 2021 TOU. See Opp’n 24; Svensson Aff. ¶ 5, ECF

No. 25-2. However true that allegation may be, it is not before the Court, as plaintiffs may

not introduce arbitrability arguments for new class members in their Opposition. See

Roberts v. Weight Watchers Int’l, Inc., 217 F. Supp. 3d 742, 753 (S.D.N.Y. 2016) (quoting

Guo v. IBM 401(k) Plus Plan, 95 F. Supp. 3d 512, 526 (S.D.N.Y. 2015)).

10 Plaintiffs encourage the Court to follow other circuits’ decisions not to compel

arbitration with regards to “false and misleading” practices that occurred prior to the

parties’ contractual relationships. See Opp’n 22. However, the Court is bound by Second

Circuit precedent, which gives “retroactive application to broad arbitration clauses.” See

Plazza, 289 F. Supp. 3d at 551 (quoting Sacchi v. Verizon Online LLC, No. 14-cv-00423,

2015 WL 765940, at *9 (S.D.N.Y. Feb. 23, 2015)).

therefore covers alleged violations of Section 25.07 during purchase, which accrue when

a ticket seller fails to clearly list the total cost of a ticket with fees “prior to the ticket being

selected for purchase” and thus prior to acceptance of the TOU. N.Y. Arts & Cult. Aff. Law

§ 25.07(4). Similarly, a Section 25.07 claim might “accrue” when a customer views a

listing that violates Section 25.07 and then accepts the TOU by creating an account.

Second, there is a “presumption of arbitrability” that, absent “positive assurance

that an arbitration clause is not susceptible of an interpretation that covers the asserted

dispute,” should be “resolved in favor of coverage.” Holick v. Cellular Sales of New York,

802 F.3d 391, 395 (2d Cir. 2015). Because the TOU contemplates the Arbitration

Agreement’s retroactive application, that presumption applies. See also Kutluca v. PQ

New York Inc., 266 F. Supp. 3d 691, 703–04 (S.D.N.Y. 2017) (collecting cases) (“[T]he

weight of authority supports applying broad arbitration provisions retroactively where

they do not contain temporal limitations.”).

Further, contrary to plaintiffs’ argument, Holick does not support plaintiffs’

position that the Arbitration Agreement is inapplicable to claims accruing before the

user’s acceptance of the TOU. See Opp’n 21–22; Holick v. Cellular Sales of New York, 802

F.3d at 393, 399. The Court in Holick declined to apply an arbitration clause to pre-

agreement conduct because that conduct was regulated by a previous contract between

the parties. Holick, 802 F.3d at 393, 399. Plaintiffs liken this case to Holick by

emphasizing that the parties had different relationships before and after “enter[ing] into

a ticketing agreement.” Opp’n 22. This argument is without merit.

In Holick, two agreements governed the parties’ working relationship: (1) first, a

“Sales Agreement” that did not require binding arbitration and deemed plaintiffs

independent contractors; and (2) second, an employment “Compensation Agreement”

that featured a “broad” arbitration provision and deemed plaintiffs full-time employees.

Holick, 802 F.3d at 393–94. Those two contracts governed two types of employment

relationships. Id. The Holick plaintiffs’ claims arose out of the Sales Agreement, which

they alleged misclassified them as independent contractors. Id. at 394. The court

reasoned that the arbitration clause in the Compensation Agreement was temporally

limited because the “parties’ contractual positions”—i.e., whether plaintiffs were

classified as independent contractors or full-time employees—“changed in a way that

impacted arbitrability.” Id. at 398. In this changed relationship the court found “positive

assurance” that the arbitration requirement was temporally limited to disputes that arose

during plaintiffs’ full-time employment. Id. Because plaintiffs’ claims arose out of their

employment as independent contractors, the Sales Agreement, which did not require

arbitration, governed dispute resolution.

Here, the TOU fundamentally differs from the agreements at issue in Holick. For

one, when plaintiffs accepted the TOU, those terms replaced any previous agreement

between the parties. TOU 2 (“PLEASE NOTE THAT THE TERMS ARE SUBJECT TO

CHANGE BY SEATGEEK IN ITS SOLE DISCRETION AT ANY TIME . . . . [Y]our

continued use of the Digital Properties and/or Services constitutes your acceptance of

such change(s).”). Holick involved no such terms. Additionally, in Holick, the “evolving

business relationship [was] directly relevant to whether” the parties intended to agree to

binding arbitration. 802 F.3d at 398. Here, the relationship between the parties remained

the same when they visited the Option Page and after they accepted the TOU. Indeed, the

TOU defines its signatories as service users and SeatGeek as the service provider and

explains that service users are those who visit “Digital Properties” of the service provider,

such as its website. TOU 2. Thus, pursuant to the TOU, plaintiffs were SeatGeek service

users both before and after entering into the browsewrap agreement and Holick is

inapplicable.

Accordingly, the terms of the TOU apply retroactively to the Arbitration Plaintiffs’

conduct occurring prior to the Arbitration Agreement.

ii. Decisions Regarding Arbitrability

Having established that the TOU applies to the Arbitration Plaintiffs’ disputes, the

Court next turns to the question of “who has the primary power to decide” whether a

dispute is subject to arbitration—for purposes of this discussion, “arbitrability.” See

Coinbase, Inc. v. Suski, 602 U.S. 143, 148–49 (2024). Plaintiffs argue that the Court

should decide whether their claims are subject to arbitration. Specifically, plaintiffs argue

that the Arbitration Agreement’s language is too narrow to assign questions of

arbitrability to the arbitrator. Opp’n 24. Defendant argues that the question of

arbitrability must go to the arbitrator because the parties’ relationship is controlled by a

broad delegation agreement in the TOU. Mot. 23; Reply 13. For the reasons stated below,

the Court finds that questions of arbitrability are properly left for the arbitrator.

Parties can contract that “an arbitrator, rather than a court, will resolve threshold

arbitrability questions as well as underlying merits disputes.” Henry Schein, Inc. v.

Archer & White Sales, Inc., 586 U.S. 63, 65 (2019). Courts should give effect to

arbitrability agreements—which allow an arbitrator to decide whether a dispute is subject

to arbitration—only when there is “clear and unmistakable” evidence that parties agreed

to do so. Coinbase, 602 U.S. at 149. A single arbitration contract with a delegation

provision presumptively resolves this antecedent question in favor of the arbitrator.

Coinbase, 602 U.S. at 152. Thus, “absent a successful challenge to the delegation

provision, courts must send all arbitrability disputes to arbitration.” Id.

In this case, there is clear evidence that all Arbitration Plaintiffs consented to a

broad delegation provision. Plaintiffs all but admit this and concede that the 2023

versions of SeatGeek’s TOUs “arguably track” the “broad language” found to delegate

questions of arbitrability to the arbitrator in Thorne, 2022 WL 542383, at *13–14. See

Opp’n 24.11 Indeed, the delegation language in the TOU is clear: “The arbitrator shall have

exclusive authority to resolve any Dispute, including . . . disputes arising out of or related

to the interpretation or application of the Arbitration Agreement, including the

enforceability, revocability, scope, or validity of the Arbitration Agreement . . . .” TOU 10

§ 14.11 (the “Delegation Clause”). By its terms, the Delegation Clause includes arbitrability

questions. In fact, the Supreme Court found nearly identical language “quite clearly”

delegated arbitrability to an arbitrator. See Coinbase, 602 U.S. at 146.

The arbitrability of consolidated plaintiff Edwards’ claims, even if not subject to

the TOU, would still be a question for the arbitrator. As previously noted, Edwards’

complaint suggests that her SeatGeek purchases required her to sign the March 2023

TOU. See supra note 5, at 4–5. The March 2023 TOU maintains that “[a]ny question or

matter of arbitrability of a dispute shall be determined by the neutral(s) assigned to, or

chosen for, the dispute . . . . The parties agree and acknowledge that they are waiving their

right to seek a determination of arbitrability in a court of law or other judicial forum.”

Mar. 2023 TOU § 14.1. Absent allegations or evidence suggesting that this provision is

invalid or inapplicable—which plaintiffs do not raise and the Court does not discern based

on the record before it—the arbitrability of Edwards’ claims is also clearly a question for

11 Plaintiffs contend that the July 2021 TOU “did not include” such broad language

and suggest that the July 2021 TOU’s delegation clause controls, without explaining to

which Arbitration Plaintiffs or why. See Opp’n 24. As established supra, the TOU is the

applicable agreement between SeatGeek and all Arbitration Plaintiffs.

arbitration. Moreover, given Edwards’ agreement to be bound by this order, see Briefing

Stipulation & Order 2, she cannot dispute that her claims are subject to the Delegation

Clause’s broad language.

Accordingly, the Court finds that the Arbitration Agreement covers any questions

as to the arbitrability of the Arbitration Plaintiffs’ claims.

iii. Unconscionability

A party may assert unconscionability as a defense to the enforcement of an

arbitration agreement by (1) challenging the enforceability of the agreement’s delegation

clause or (2) challenging the validity of the overall agreement. See, e.g., Long v. Amway

Corp., 306 F. Supp. 3d 601, 608–09 (S.D.N.Y. 2018); see also Hu v. Whaleco, Inc., No.

23-cv-06962, 2024 WL 4481439, at *20 (E.D.N.Y. Oct. 1, 2024) (collecting cases). If

plaintiff specifically challenges the enforceability of the delegation clause, the Court “must

consider the challenge” under the relevant state law. See McCoy v. Dave & Buster’s, Inc.,

No. 15-cv-00465, 2018 WL 550637, at *7 (E.D.N.Y. Jan. 24, 2018) (citing Rent-A-Ctr.,

W., Inc. v. Jackson, 561 U.S. 63, 71, 73 (2010)). However, courts must leave “any challenge

to the validity of the arbitration agreement as a whole for the arbitrator” and presume the

validity of the delegation clause pursuant to Section 2 of the FAA. Id. (citing Rent-A-Ctr.,

561 U.S. at 72).

Plaintiffs do not challenge the enforceability of the Delegation Clause. Instead, they

contend that the Arbitration Agreement is unenforceable because the TOU12 “contain[s]

provisions that are unconscionable and unenforceable.” Opp’n 25. Specifically, they argue

12 Plaintiffs dispute the scope of the language in the July 2021 TOU. See Opp’n 24–

25. However, as discussed, that agreement is not applicable to the Arbitration Plaintiffs’

claims, making any dispute the parties have over this matter immaterial.

that the TOU is a contract of adhesion, see Opp’n 26, and that several provisions outside

the Delegation Clause are unconscionable: the “pre-arbitration procedures” outlined in

Sections 14.2 (“Dispute Resolution/Notice Regarding Mandatory Arbitration”) and 14.3

(“Informal Dispute Resolution”); the “Batch Arbitration” requirement in Section 14.7; and

the requirement in Section 14.14 that users file claims within one year, see Opp’n 29.

These arguments are unrelated to the Delegation Clause and are contained in provisions

of the Arbitration Agreement separate from the Delegation Clause, which is found in

Section 14.11.

Accordingly, because plaintiffs do not challenge the enforceability of the delegation

clause, the Court must treat it as valid and enforceable and submit any unconscionability

challenges to arbitration. Hu, 2024 WL 4481439, at *20 (collecting cases).

iv. Class Action Waiver

As described above, the TOU includes a class action waiver. See supra,

Background, II. Defendant argues and plaintiffs do not dispute that this waiver bars the

Arbitration Plaintiffs from bringing a class action in the first place. Mot. 24; Opp’n 21–

29. Because the TOU is enforceable, the Arbitration Plaintiffs may not bring this action

on behalf of a putative class. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344,

352 (2011) (concluding that FAA permits class action waivers); Tsadilas v. Providian Nat.

Bank, 13 A.D.3d 190, 191 (1st Dep’t 2004) (enforcing class action waiver because, “[u]nder

New York law, a contractual proscription against class actions is neither unconscionable

nor violative of public policy”).13

13 Because it is undisputed that plaintiff Zajac opted out of only the TOU’s arbitration

clause, plaintiff Zajac may be forbidden from bringing a class action complaint. Because

defendant does not now raise this argument, the Court need not address it.

* * *

For the reasons stated above, SeatGeek’s motion to compel arbitration is granted

as to the Arbitration Plaintiffs.

MOTION TO DISMISS

The Court now turns to the remaining claims: plaintiff Zajac’s Section 25.07 and

unjust enrichment claims. Defendant urges the Court to dismiss these claims pursuant to

Rule 12(b)(1), on the basis that plaintiff lacks Article III standing, and 12(b)(6), on the

basis that plaintiff fails to state a claim.

I. Legal Standard

A “plaintiff asserting subject matter jurisdiction has the burden of proving by a

preponderance of the evidence that it exists.” Huntress v. United States, 810 F. App’x 74,

75–76 (2d Cir. 2020) (summary order). A court must dismiss a case for lack of subject

matter jurisdiction under Rule 12(b)(1) when it “lacks the statutory or constitutional

power to adjudicate it.” Id. (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

2000)). In making this determination, the Court “must accept as true all material factual

allegations in the complaint.” Berger v. L.L. Bean, Inc., 351 F. Supp. 3d 256, 260

(E.D.N.Y. 2018) (quoting J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.

2004)). A court may also “refer to evidence outside the pleadings” in its assessment.

Makarova, 201 F.3d at 113.

When deciding a motion to dismiss for failure to state a claim, a court must again

“accept[] all factual claims in the complaint as true, and draw[] all reasonable inferences

in the plaintiff’s favor.” Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d

Cir. 2014). A Rule 12(b)(6) motion probes “the legal, not the factual, sufficiency of a

complaint”; thus, factual disputes are not the subject of the Court’s analysis. Plastic

Surgery Grp., P.C. v. United Healthcare Ins. Co. of N.Y., Inc., 64 F. Supp. 3d 459, 468–

69 (E.D.N.Y. 2014). Accordingly, “[d]ismissal is inappropriate unless it appears beyond

doubt that the plaintiff can prove no set of facts which would entitle him or her to relief.”

Panse v. Eastwood, 303 F. App’x 933, 934 (2d Cir. 2008) (summary order) (quoting

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)). At the same time,

plaintiffs must allege sufficient facts to “nudge[] their claims across the line from

conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 570 (2007).

Indeed, “conclusory allegations or legal conclusions masquerading as factual conclusions”

are insufficient to prevent dismissal. Nwaokocha v. Sadowski, 369 F. Supp. 2d 362, 366

(E.D.N.Y. 2005).

When a court is faced with a motion to dismiss pursuant to both Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure, the Court “must decide the jurisdictional

question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits

and, therefore, an exercise of jurisdiction.” Pressley v. City of New York, No. 11-cv-03234,

2013 WL 145747, at *5 (E.D.N.Y. Jan. 14, 2013); see also United States ex rel. Kreindler

& Kreindler v. United Techs. Corp., 985 F.2d 1148, 1155–56 (2d Cir. 1993).

II. Discussion

The Court finds that plaintiff Zajac has adequately alleged economic injury to

establish Article III standing for his damage claims; however, he has failed to allege

standing for his injunctive relief claim because he has not plausibly alleged a likelihood of

future harm. Further, plaintiff Zajac’s Section 25.07 claim will not be dismissed pursuant

to the voluntary payment doctrine because its applicability is not apparent at this stage.

However, Zajac’s unjust enrichment claim is dismissed under Rule 12(b)(6) both because

it duplicates his Section 25.07 claim and because it is governed by the TOU.

A. Rule 12(b)(1)

Defendant argues that plaintiff Zajac’s claims must be dismissed pursuant to Rule

12(b)(1) because plaintiff has not alleged a “concrete injury.” See Mot. 25. Specifically,

SeatGeek argues that plaintiff’s allegation of a mere “technical violation” of Section 25.07

is insufficient to give rise to a finding of injury-in-fact because it does not “identify any

concrete harm” flowing from that violation. Mot. 26–27.

Federal courts are limited to adjudicating “actual cases or controversies” and are

otherwise not invested with the constitutional power to hear a given case. Spokeo, Inc. v.

Robins, 578 U.S. 330, 337 (2016). A plaintiff lacks Article III standing unless he has,

among other requirements, suffered an “injury in fact.” Id. at 338. To satisfy the injury-

in-fact requirement, a plaintiff must suffer harm that is “concrete and particularized” and

“actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 560 (1992). An injury is concrete if it is “real, and not abstract” and if it “has a close

relationship to a harm traditionally recognized as providing a basis for a lawsuit in

American courts.” TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021). Thus, a

concrete injury may be “physical, monetary,” or otherwise legally “cognizable intangible

harms.” Harty v. West Point Realty, Inc., 28 F.4th 435, 442–43 (2d Cir. 2022). “Article

III standing requires a concrete injury even in the context of a statutory violation.”

TransUnion LLC, 594 U.S. at 426.

When a Rule 12(b)(1) motion is facial, i.e., based “solely on the allegations of the”

pleading, the Court must assess whether the plaintiff “alleges facts that affirmatively and

plausibly suggest that the plaintiff has standing to sue.” Carter v. HealthPort Techs., LLC,

822 F.3d 47, 56 (2d Cir. 2016).

i. Damage Claims

Contrary to SeatGeek’s argument, the FAC adequately alleges that plaintiff Zajac

has suffered an injury-in-fact giving rise to Article III standing. This is a “lower threshold

than that for sustaining a valid cause of action.” Harry v. Total Gas & Power N. Am., Inc.,

889 F.3d 104, 110 (2d Cir. 2018).

The face of the complaint alleges that plaintiffs suffered economic harm as a result

of defendant’s alleged unlawful failure to disclose “the total cost of the ticket . . . in a clear

and conspicuous manner” at the “first point that ticket prices [were] displayed on their

website.” FAC ¶ 58. The FAC specifically alleges that SeatGeek’s “failure to disclose the

total cost of a ticket, inclusive of all ancillary fees that must be paid in order to purchase

the ticket,” was a violation of Section 25.07(4), making it an unlawful fee. FAC ¶ 59. And

as a result, plaintiffs paid defendant’s unlawful fees to secure their tickets. See FAC ¶¶ 63,

65. That is, he argues that he paid inflated total prices as a result of plaintiff’s unlawful

nondisclosure of ancillary fees on SeatGeek’s “Option Page.” FAC ¶ 63; Opp’n 16.

Plaintiff’s allegations of paying an unlawful fee to transact with defendant meet the

low threshold required to sufficiently plead concrete economic injury. See Allco Fin. Ltd.

v. Klee, 861 F.3d 82, 95–96, 95 n.10 (2d Cir. 2017) (finding allegation of “unlawful fees”

“imposed” on solar project bidder “sufficiently concrete and particularized to qualify as

injuries-in-fact”); Bassaw v. United Industries Corp., 482 F. Supp. 3d 80, 85 (S.D.N.Y.

2020) (finding “low threshold” for alleging concrete injury met where plaintiff made a

purchase “in reliance” that it would be sold a product “as advertised” and consequently

“paid too much for a product based on its misleading advertising”). As noted above,

plaintiff Zajac alleges that the price initially provided for his tickets did not include

SeatGeek’s additional fees, which were not disclosed “prior to . . . being selected for

purchase.” Opp’n 16. By alleging that he paid unlawful fees to defendant, plaintiff Zajac

has pled an injury sufficient to confer Article III standing. See Charles v. Color Factory,

LLC, No. 24-cv-00322, 2024 WL 1693236 (S.D.N.Y. Apr. 19, 2024) (finding that plaintiff

sufficiently alleged injury-in-fact by alleging that she was “charged and paid a fee that was

rendered unlawful by defendant’s failure to disclose the total cost” as required by Section

25.07).

Defendant attempts to differentiate the FAC from Charles, in which the court

found the economic injury resulting from a violation of Section 25.07 adequate to confer

Article III standing. Charles, 2024 WL 1693236, at *3. Specifically, defendant argues that

SeatGeek “disclosed the precise amount of fees multiple times prior to check out” and

separated “fees and taxes” for users. See Mot. 27–28. This is a factual dispute not before

the Court on a motion to dismiss. Instead, plaintiff need only plausibly and affirmatively

allege facts suggesting that he suffered “economic injury that flowed from defendant’s

purported violation of the statute.” Charles, 2024 WL 1693236, at *3. Plaintiff has

sufficiently alleged defendant’s unlawful nondisclosure, as well as the charges he incurred

as a result. See, e.g., Svensson Aff. ¶¶ 2–4; FAC ¶¶ 63, 65. Reading all factual allegations

in plaintiff’s favor, the FAC sufficiently alleges such resulting economic injury.

For similar reasons, defendant’s argument that TransUnion counsels dismissal of

this action fails. Specifically, defendant contends that plaintiffs “do not allege any injury

beyond a bare statutory violation,” and fail to “identify any concrete harm” flowing from

its alleged violation of Section 25.07. Mot. 26–27. But TransUnion did not involve the

sort of concrete “pocketbook injury” alleged by the FAC. See Tyler v. Hennepin Cnty., 598

U.S. 631, 636 (2023) (finding a claim that one party kept money to which it was not

entitled sufficient injury for standing).

In TransUnion, a class of plaintiffs sued under the Fair Credit Reporting Act

(FCRA) alleging that a credit reporting agency “failed to use reasonable procedures to

ensure the accuracy of their credit files” and, for a subset of class members, “provided

misleading credit reports to third-party businesses.” 594 U.S. at 417. The Court held that

inaccurate information in internal credit files did not constitute concrete harm, but that

plaintiffs “whose reports were disseminated to third parties suffered a concrete injury in

fact.” Id. at 432. In doing so, the Court articulated the requirement that a plaintiff alleging

standing based on “informational injury” must also demonstrate “downstream

consequences from failing to receive” information. Id. at 441–42. TransUnion’s focus on

informational injury is inapplicable here, where plaintiff has alleged concrete economic

injury flowing from defendant’s violation of a statutory provision. See Charles, 2024 WL

1693236, at *3 (quoting Dubuisson v. Stonebridge Life Ins. Co., 887 F.3d 567, 574 (2d

Cir. 2018)).

Defendant also asserts that because Section 25.29(1) makes “service charges and

fees” lawful, plaintiffs were not charged unlawful fees. Mot. 26. However, that argument

gets to the merits of plaintiff’s Section 25.07 claim. Standing is established “regardless of

the merits of the plaintiff’s statutory interpretation” so long as a “plaintiff alleges a

concrete, economic injury resulting from a defendant’s violation of a statutory provision.”

Dubuisson, 887 F.3d at 574; see also Warth v. Seldin, 422 U.S. 490, 500 (1975)

(“[S]tanding in no way depends on the merits of the plaintiff’s contention that particular

conduct is illegal.”). Whether plaintiff’s claim is ultimately meritorious is a question

distinct from whether he has standing to bring such a claim.

Accordingly, the Court finds that plaintiff Zajac has Article III standing to bring his

claims for economic damages.

ii. Injunctive Relief

Defendant also challenges plaintiff Zajac’s standing as it pertains to his request for

injunctive relief. Though the Court finds that Zajac has sufficiently alleged injury to confer

standing for his damages claims, the same cannot be said as to his claim for injunctive

relief. Plaintiff’s complaint includes no facts suggesting a likelihood of future harm from

defendant’s conduct and thus fails to demonstrate standing.

A plaintiff “must demonstrate standing separately for each form of relief sought.”

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).

To maintain an action for injunctive relief, a plaintiff “cannot rely on past injury but must

show a likelihood that he will be injured in the future.” Berni v. Barilla S.p.A., 964 F.3d

141, 147 (2d Cir. 2020). A “threatened injury must be certainly impending to constitute

an injury in fact.” Am. C.L. Union v. Clapper, 785 F.3d 787, 800 (2d Cir. 2015) (emphasis

in original). Injury that is “merely conjectural or hypothetical” is insufficient to confer

Article III standing for injunctive relief. Berni, 964 F.3d at 147.

Here, plaintiff Zajac’s knowledge of SeatGeek’s allegedly deceptive pricing

practices renders implausible that he would likely pay unlawful fees in the future. The

FAC repeatedly alleges defendant’s failure to display full ticket prices to users. See, e.g.,

FAC ¶¶ 8, 9, 10, 11 (representing that each plaintiff was only shown additional fees after

“selecting seating” or “clicking through multiple pages”); FAC ¶ 24 (noting that, on the

order summary page, the purchaser is made aware “for the first time in the multi-step

purchase process” of its obligation to pay “Fees”); FAC ¶ 25–30 (alleging that defendant

engages in “dark patterns to lure customers into purchasing tickets that ultimately include

junk fees”). Accordingly, because plaintiff is “aware of the very deception [he]

challenge[s],” he is in no danger of being “misled again in the future.” Binder v. Premium

Brands Opco LLC, No. 23-cv-03939, 2024 WL 2978506, at *4 (S.D.N.Y. June 11, 2024)

(concluding plaintiffs lacked standing to pursue injunctive relief, because “their admitted

knowledge of defendant’s pricing practices renders implausible their allegation that they

may again be misled”); see also Marino v. Coach, Inc., 264 F. Supp. 3d 558, 565 (S.D.N.Y.

2017) (finding no Article III standing for injunctive relief where plaintiffs discovered that

certain retail prices were illusory and thus “they cannot be misled” in the future). Having

shown no likelihood that he will be injured in the future, plaintiff Zajac has failed to plead

standing for injunctive relief.14

Accordingly, plaintiff Zajac’s claim for injunctive relief is dismissed.

B. 12(b)(6) Claims

Defendant also argues that the FAC should be dismissed because plaintiff Zajac

has failed to state a claim upon which relief can be granted. Specifically, defendant

contends that the voluntary payment doctrine bars plaintiff Zajac’s claims. Mot. 29.

Defendant also argues that plaintiff Zajac’s unjust enrichment claim must fail both

because it is duplicative of the Section 25.07 claim, and because a contract governs the

parties’ dispute. Mot. 30. The Court denies defendant’s motion to dismiss the FAC under

14 Plaintiff Zajac’s argument that he has standing because he, or other plaintiffs,

would purchase tickets on SeatGeek again does not remedy this error. Opp’n 19; Zajac Aff.

¶¶ 4–6, ECF No. 25-1. For one, Zajac’s claims that he would purchase tickets from

SeatGeek again if it “comes into compliance with ACAL” and that “there is a high

probability” he will “have no choice but to use SeatGeek’s platform to purchase tickets

again in the future” are hypothetical. See Zajac Aff. ¶¶ 4, 6. Hypothetical allegations of

future injury are insufficient to establish Article III standing. Berni, 964 F.3d at 147.

Secondly, Zajac did not include these allegations in his complaint, and the Court need not

consider such unalleged facts when deciding a motion to dismiss. Zick v. Waterfront

Comm’n of N.Y. Harbor, No. 11-cv-05093, 2012 WL 4785703, at *3 (S.D.N.Y. Oct. 4,

2012).

the voluntary payment doctrine, but grants its motion as to plaintiff Zajac’s unjust

enrichment claim.

i. Voluntary Payment Doctrine

The “voluntary payment doctrine” is a New York common law doctrine barring

“recovery of payments voluntarily made with full knowledge of the facts, and in the

absence of fraud or mistake of material fact or law.” Spiro v. Healthport Techs., LLC, 73

F. Supp. 3d 259, 276 (S.D.N.Y. 2014). The doctrine “does not apply when a plaintiff’s claim

is predicated on a lack of full disclosure by defendant.” Fink v. Time Warner Cable, 810

F. Supp. 2d 633, 649 (S.D.N.Y. 2011) (citing Spagnola v. Chubb Corp., 574 F.3d 64, 73

(2d Cir. 2009)). As an affirmative defense, courts are reluctant to dismiss claims under

the voluntary payment doctrine at the pleading stage. Morgulis v. Bus Patrol Am., LLC,

No. 24-cv-00113, 2024 WL 3639126, at *5 (S.D.N.Y. Aug. 1, 2024) (collecting cases).

Where the pleadings “do not establish whether Plaintiffs knew or should have known that

the product prices were” misleading, dismissal under voluntary payment doctrine is

premature. See Fishon v. Peloton Interactive, Inc., 620 F. Supp. 3d 80, 106 (S.D.N.Y.

2022) (quoting Spagnola, 574 F.3d at 73).

Plaintiff pleads exactly those circumstances here, as he alleges that defendant

failed to fully disclose ticket fees as required by the relevant statute. The FAC alleges that

plaintiffs were harmed by paying “added Fees” that were (1) not disclosed to plaintiffs “at

the beginning of the purchase process,” in violation of Section 25.07(4)’s requirement that

costs and fees “be displayed in the ticket listing prior to the ticket being selected for

purchase”; and (2) not “clearly and conspicuously disclosed on the final checkout page,”

in violation of Section 25.07(4)’s instruction that the “total cost of the ticket, inclusive of

all ancillary fees” be disclosed “in a clear and conspicuous manner.” See FAC ¶¶ 63, 65;

N.Y. Arts & Cult. Aff. Law § 25.07(4). These allegations alone plead “a lack of full

disclosure” on SeatGeek’s part. See Fink, 810 F. Supp. 2d at 649. And any argument

defendant makes about plaintiff’s knowledge “of the exact amount of fees” or that plaintiff

did not purchase their tickets under duress, Mot. 29–30, “would require the Court to

make factual determinations about the nature of the taxes and fees that defendant

charged and disclosed, which would not be appropriate on a motion to dismiss,” Charles,

2024 WL 1693236, at *4.

Furthermore, this case is unlike Shelton, which defendant relies upon. Mot. 30;

Reply 16–17. In Shelton, plaintiff’s pleading established her own awareness that she was

being overcharged. See Shelton v. CIOX Health, LLC, No. 17-cv-00808, 2018 WL

4211447, at *4 & n.5 (E.D.N.Y. July 20, 2018) (declining to apply voluntary payment

doctrine where plaintiff was “fully aware” at time of payment that fee amount violated

statutory cap). The FAC does not indicate plaintiff’s awareness upon purchase that he was

charged unlawful fees. Additionally, the Shelton court found that the plaintiff’s payment

was voluntary as there was “no duress by reason of time or anything else forcing Shelton’s

payment.” Id. at *4. For example, plaintiff had received her requested medical records

before knowingly making the allegedly unlawful payment. Id. The same cannot be said

here, where plaintiff was required to make a payment in order to secure his tickets.

Thus, reading the FAC’s allegations in his favor, the voluntary payment doctrine

cannot stand as a basis for dismissal of plaintiff Zajac’s claims at this juncture.

ii. Unjust Enrichment

Plaintiff’s unjust enrichment claim fails as a matter of law for two reasons. First, it

duplicates his Section 25.07 claim. Second, the TOU governs his dispute with SeatGeek

and therefore preempts this common law claim.

Under New York law, a plaintiff may plead unjust enrichment by alleging that

defendant “benefitted” at “plaintiff’s expense” and that “equity and good conscience

require restitution.” Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J.,

Inc., 448 F.3d 573, 586 (2d Cir. 2006). Unjust enrichment claims are “unavailable where

[they] simply duplicate[], or replace[], a conventional contract or tort claim.” Corsello v.

Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012). “Two claims are duplicative of one another

if they arise from the same facts.” NetJets Aviation, Inc. v. LHC Commc’ns, 537 F.3d 168,

175 (2d Cir. 2008). “[E]ven pleaded in the alternative, claims for unjust enrichment will

not survive a motion to dismiss where plaintiffs fail to explain how their unjust

enrichment claim is not merely duplicative of their other causes of action.” Nelson v.

MillerCoors, LLC, 246 F. Supp. 3d 666, 679 (E.D.N.Y. 2017).

Here, plaintiff’s unjust enrichment claim is based on the same factual allegations

as his Section 25.07 claim. Plaintiff’s unjust enrichment claim, like his Section 25.07

claim, is premised on defendant’s alleged charging of unlawful fees that were “not

disclosed to Plaintiffs at the beginning of the purchase process,” FAC ¶ 63, but were

“added” later during the purchase process, FAC ¶ 69. Because he has failed to explain how

these two claims differ, plaintiff’s unjust enrichment claim is dismissed. See Lin v.

Canada Goose US, Inc., 640 F. Supp. 3d 349, 360–61 (S.D.N.Y. 2022) (dismissing unjust

enrichment claim as based on the same theory as, and thus duplicative of, statutory

claim).

Relatedly, because plaintiff has failed to plausibly allege that his unjust enrichment

claim governs a different subject matter than his statutory claim, the Court declines to

permit alternative pleading. See Franklin v. Waters, No. 16-cv-09819, 2018 WL 3231660,

at *5 (S.D.N.Y. Apr. 10, 2018) (denying alternative pleading where there was “no dispute

as to the validity of the contract”); 111 W. 57th Inv. LLC v. 111 W57 Mezz Inv. LLC, 198

N.Y.S.3d 521, 521 (1st Dep’t 2023), leave to appeal denied, 41 N.Y.3d 905 (2024)

(dismissing unjust enrichment claim because “a written agreement govern[ed] the subject

matter at issue”).

STAY OF PROCEEDINGS

Under Section 3 of the FAA, a district court must stay the judicial proceedings upon

“application of one of the parties” where the asserted claims are “referable to arbitration.”

9 U.S.C. § 3. Stay, as opposed to dismissal, of a case referred to arbitration “is consistent

with the FAA’s underlying policy to move the parties to an arbitrable dispute out of court

and into arbitration as quickly and as easily as possible . . . unencumbered by the

uncertainty and expense of additional litigation . . . .” Katz v. Cellco P’ship, 794 F.3d 341,

346 (2d Cir. 2015). Defendant has requested a stay of litigation pending arbitration, see

Oral Arg. Tr. 24:4–13 (draft on file with court), and the Court finds that such a stay will

conserve resources and avoid implicating issues common to all claims. Accordingly, the

Court stays all proceedings in this action pending arbitration.

CONCLUSION

For the reasons above, defendant’s motion to compel arbitration is GRANTED as

to the Arbitration Plaintiffs and consolidated plaintiff Edwards. The action is stayed with

respect to all plaintiffs pending the outcome of arbitration. The parties shall provide a

status report regarding the status of arbitration within thirty (30) days of the completion

of arbitration or by July 17, 2025, whichever is sooner. Defendant’s motion to dismiss is

GRANTED with respect to plaintiff Zajac’s request for injunctive relief and unjust

enrichment claim, but is otherwise DENIED. Plaintiff Carey is directed to officially

discontinue this action within fourteen (14) days.

SO ORDERED.

/s/ Natasha C. Merle

NATASHA C. MERLE

United States District Judge

Dated: January 17, 2025

Brooklyn, New York