The panel: Judges Boggs (6th Cir.), Wardlaw, and Ikuta, with Judge Boggs writing the opinion.
The Court rejected plaintiffs’ argument that Massachusetts law imposes a stricter standard for constructive notice than California law. It explained that the Massachusetts decision plaintiffs cited, Kauders v. Uber Technologies, Inc., 486 Mass. 557 (2021), had in fact adopted a two-step reasonableness test borrowed from a decision that applied California law. That test requires both “reasonable notice of the [contractual] terms” and “reasonable manifestation of assent to those terms.” Id. at 1049. Contrary to plaintiffs’ contention, Kauders did not establish that mutual assent was particularly difficult to establish absent clickwrap. Instead, it applied the same fact-specific inquiry employed by other courts, including the Ninth Circuit. Unpublished district court decisions criticizing a First Circuit decision that applied this standard did not demonstrate the existence of a different framework under Massachusetts law. They merely reflected that a fact-specific inquiry may lead to divergent results in different cases. Because California and Massachusetts law applied the same standard, the Court declined plaintiffs’ invitation to “engage in a detailed choice-of-law analysis.”
Finally, the Court held that the district court did not err by finding constructive notice as a matter of law. The Court explained that “whether a certain set of facts is sufficient to establish a contract is a question of law.” As a result, if the evidence relevant to that question is not in dispute, it may be decided by the court as a question of law. That was appropriate here because the district court relied on evidence (features of Live Nation and Ticketmaster’s websites) that was neither in dispute nor undermined by plaintiffs’ evidence.