United States District Court

for the

Southern District of Florida

Marcy Brooks, Richard Montoure, and 

Samuel Hernandez, on behalf of 

themselves and all others similarly 

situated, Plaintiffs,

v.

Event Entertainment Group, Inc., 

Defendant.

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Civil Action No. 20-22495-Civ-Scola

Consol. Case 20-22185-Civ-Scola

Order Regarding Motion to Compel to Arbitration

Plaintiffs Marcy Brooks, Richard Montoure, and Samuel Hernandez, 

ticket holders for the March 2020 Ultra Music Festival, in this putative classaction case, seek to recover damages from Defendant Event Entertainment 

Group, Inc., for canceling or postponing the Miami festival just a few days 

before its scheduled start. (Pls.’ Resp. to Mot. to Compel, ECF No. 17.) In 

response, Event Entertainment seeks to compel arbitration based on an 

arbitration clause in the parties’ ticket contracts. (Def.’s Mot. to Compel, ECF 

No. 14.) Further, Event Entertainment submits, in conjunction with compelling 

this case to arbitration, the Court should dismiss the Plaintiffs’ claims with 

prejudice. (Id. at 12.) In opposition to that motion, the Plaintiffs argue the 

Court should not enforce the arbitration clause because it is unconscionable 

and unenforceable. (Pls.’ Resp., ECF No. 17.) The Plaintiffs also contend a stay

of this case pending arbitration, rather than dismissal, is the appropriate 

course. (Id. at 15.) Event Entertainment has timely replied to the Plaintiffs’ 

response. (Def.’s Reply, ECF No. 24.) After careful review, the Court agrees with 

Event Entertainment that the parties should be compelled to arbitrate their 

dispute. The Court disagrees, however, that the Plaintiffs’ case should be 

dismissed with prejudice. Accordingly, the Court grants in part and denies in 

part Event Entertainment’s motion to compel and to dismiss this case (ECF 

No. 14).

1. Background

Event Entertainment produces an annual three-day music festival under 

the name “Ultra Music Festival.” Most recently, the festival had been scheduled 

to take place in Miami, Florida, on March 20, 21, and 22, 2020. Due to the 

COVID-19 pandemic, however, the concert was canceled. As a result, the 

Plaintiffs all requested refunds. Event Entertainment denied their requests, 

Case 1:20-cv-22495-RNS Document 27 Entered on FLSD Docket 11/23/2020 Page 1 of 7
however, and instead notified the Plaintiffs that their tickets would be honored 

at either the 2021 or 2022 Ultra events, at their option. Event Entertainment 

afforded the Plaintiffs one month to affirmatively agree to defer their tickets 

before the value of their tickets would be forfeited. Unhappy with Event 

Entertainment’s refusal to provide them refunds, the Plaintiffs filed this 

putative class action for conversion and unjust enrichment.

When the Plaintiffs purchased their tickets, they were required to 

consent to Event Entertainment’s ticketing terms and conditions by checking a 

box that indicates the purchaser “agree[s] to the Ticketing Terms and 

Conditions.” (Def.’s Mot. at 3.) One of the terms of that agreement is an 

arbitration clause regarding “any disputes arising from or related to 

Purchaser’s purchase of Tickets hereunder or any relationship or dispute 

between . . . Purchaser and [Event Entertainment].” (Id. at 4.)

2. Legal Standard

Arbitration is a matter of contract, thus the “interpretation of an

arbitration agreement is generally a matter of state law.” Stolt-Noelsen S.A. v. 

AnimalFeeds Int’l Corp., 559 U.S. 662, 681 (2010). But the Federal Arbitration

Act (FAA) “requires courts to enforce [arbitration agreements] according to their 

terms.” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 66 (2010). Section 2 of 

the FAA provides that written provisions that evidence an intent to settle a 

controversy by arbitration are “valid, irrevocable, and enforceable” except 

where grounds “exist at law or in equity” to revoke the contract. 9 U.S.C. § 2. 

Section 3 of the FAA requires that a court—upon motion by a party to an 

action in federal court—stay the action if it involves an “issue referable to

arbitration under an agreement in writing.” 9 U.S.C. § 3. And if the Court finds 

that the parties are subject to a valid arbitration agreement, the Court “shall 

make an order directing the parties to proceed to arbitration.” 9 U.S.C. § 4.

These provisions manifest a “liberal federal policy favoring arbitration

agreements.” Hill v. Rent-A-Center, Inc., 398 F.3d 1286, 1288 (11th Cir 2005) 

(cleaned up). The party opposing the motion to compel arbitration “has the 

affirmative duty of coming forward by way of affidavit or allegation of fact to 

show cause why the court should not compel arbitration.” VVG Real Estate 

Investments v. Underwriters at Lloyd’s, London, 317 F. Supp. 3d 1199, 1204 

(S.D. Fla. 2018) (Bloom, J.) Long standing precedent favors resolving “any 

doubts concerning the scope of arbitrable issues” in favor of arbitration. Moses 

H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24–25 (1983). As 

such, courts “rigorously enforce” arbitration agreements.” Klay v. All

Defendants, 389 F.3d 1191, 1200 (11th Cir. 2004).

Case 1:20-cv-22495-RNS Document 27 Entered on FLSD Docket 11/23/2020 Page 2 of 7
3. Analysis 

The Plaintiffs seek to avoid arbitration, arguing that the arbitration 

clause within their ticketing agreements is unconscionable. In support of their 

position, the Plaintiffs (1) insist the 2019 ticket agreement and not the 2020 

ticketing agreement, attached to Event Entertainment’s motion, applies; (2) 

argue the ticketing agreement is a contract of adhesion; (3) maintain the 

arbitration provision was hidden within a maze of fine print; (4) contend the 

ticketing agreement lacked mutuality of obligation; and (5) assert the costs of 

the required arbitration would be prohibitively expensive for the Plaintiffs. 

“Florida unconscionability law require[s] a showing of both procedural and 

substantive unconscionability for a contractual provision to be held 

unconscionable.” Pendergast v. Sprint Nextel Corp., 691 F.3d 1224, 1229 (11th 

Cir. 2012). The Court finds the Plaintiffs’ resistance to arbitration unavailing: 

they have failed to establish either procedural or substantive unconscionability, 

as more fully explained below.

First, the Plaintiffs have failed to come forward with evidence, as they 

must, that would support their claim that Event Entertainment’s 2019 

ticketing agreement applies to the 2020 Ultra Music Festival. See Gomez v. 

Allied Professionals Ins. Co., 457 F. Supp. 3d 1351, 1357 (S.D. Fla. 2020)

(Bloom, J.) (“A plaintiff challenging the enforcement of an arbitration agreement 

bears the burden to establish, by substantial evidence, any defense to the 

enforcement of the agreement.”). Instead, the Plaintiffs merely identify, in a 

footnote, a discrepancy between the ticketing agreement they attached to their 

complaint—the 2019 agreement—and the ticketing agreement Event 

Entertainment attaches to its motion—the 2020 agreement. (Pls.’ Resp. at 6 

n.1.) The Plaintiffs then elaborate that they “secured” the copy of the agreement 

upon “which they rely from the Internet Archive’s Wayback Machine” and that 

this “is the only version collected and stored between March 2019 and April 

2020.” (Id.) The Plaintiffs then point out that the version attached to Event 

Entertainment’s motion “is time-stamped March 4, 2020,” which, they 

emphasize, is “after Plaintiffs purchased their tickets.” (Id. (emphasis in 

original).) 

Importantly, the Plaintiffs do not allege they ever actually agreed to the 

terms of the 2019 agreement, rather than the 2020 agreement. Nor do they 

allege, or even speculate, that the 2019 agreement was the version presented to 

them when they purchased their ticket. And, to be sure, it would not even 

make sense for the 2019 agreement to apply to the tickets the Plaintiffs 

purchased for the 2020 event. Indeed, a cursory review of the 2019 agreement 

shows that printed on the upper-left corner of each of its pages is “ULTRA 

musicfestival ® March 29, 30, 31 – 2019.” (Am. Compl. 13-1, 2–6 (emphasis 

Case 1:20-cv-22495-RNS Document 27 Entered on FLSD Docket 11/23/2020 Page 3 of 7
added here).) Further, the second to last page of the 2019 agreement supplied 

by the Plaintiffs references “Historic Virginia Key Beach Park & Miami Marine 

Stadium” as the location of the festival. (Id. at 5.) And the Plaintiffs do not 

otherwise dispute that the 2020 event was to take place at Bayfront Park, in 

downtown Miami, not on Virginia Key, where the 2019 festival was held. Lastly, 

Event Entertainment has supplied a declaration, from Event Entertainment’s 

manager of technology, Jose Torres—that the Plaintiffs have not rebutted—

which unequivocally establishes that the 2020 ticketing contract provided by 

Event Entertainment applies to the March 2020 event. (Torres. Aff., ECF No. 

24-2, 3–4.) In sum, in light of Event Entertainment’s coming forward with the 

applicable arbitration agreement and establishing the necessary contractual 

relationship between the parties, on the one hand, and the Plaintiffs’ failure to 

carry their burden to rebut that showing, on the other, the Court finds the 

ticketing agreement attached to Event Entertainment’s motion to be the 

controlling contract.

Second, the Plaintiffs’ argument that they should not be compelled to 

arbitrate because the ticketing agreement is a contract of adhesion fails in that 

it attacks the entire agreement rather than just the arbitration clause itself. 

See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–46 (2006)

(noting that “unless the challenge is to the arbitration clause itself, the issue of 

the contract’s validity is considered by the arbitrator in the first instance”); 

Jenkins v. First Am. Cash Advance of Georgia, LLC, 400 F.3d 868, 877 (11th 

Cir. 2005) (“If the party’s claims of adhesion, unconscionability, and lack of 

mutuality of obligation pertain to the contract as a whole, and not to the 

arbitration provision alone, then these issues should be resolved in 

arbitration.”) (cleaned up). Accordingly, the Plaintiffs’ contract-of-adhesion 

argument presents no impediment to compelling arbitration and allowing the 

arbitrator to decide that issue or any other issue that goes to the validity or

enforceability of the ticketing agreement as a whole.

Third, the Plaintiffs’ remaining argument in support of their proceduralunconscionability argument—that the ticketing agreement’s arbitration clause 

is unclear and inconspicuous—fails as well because it is based solely on the 

formatting of the 2019 ticketing agreement. As previously explained, the 

Plaintiffs fail to establish that this version of the agreement, as opposed to the 

2020 version, supplied by Event Entertainment, applies to their ticket 

purchases. And the 2020 version of the agreement has none of the formatting 

issues about which the Plaintiffs complain. Instead the 2020 version (1) was 

available for review in multiple ways for the convenience of all ticket 

purchasers, including the Plaintiffs; (2) was not presented as a single block of 

text; (3) was well organized with clearly labeled numbered provisions and 

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bolded and underlined titles for each separate provision; (4) offset the 

arbitration provision from the remainder of the agreement by adding spacing 

and identifying the relevant sections with the title, “Disputes”; (5) capitalized 

important language within the arbitration provision; and (6) was written using 

easily understood language. (See Ticketing Agmt., ECF No. 14-1, 10–14.) The 

Plaintiffs fail to identify any particular language that they summarily complain 

is not “easily understood” and fail to point to any actual “deceptive sales 

practices” that they allege “magnified” the arbitration clause’s procedural 

shortcomings. (Pls.’ Resp. at 12.) Even more importantly, perhaps, not a single 

Plaintiff even alleges not actually seeing or understanding the arbitration 

clause. In sum, because the Plaintiffs’ gripes focus on the wrong version of the 

ticketing agreement and are wholly unsupported by any specifics, their 

procedural-unconscionability arguments miss the mark.

Finally, even if the Court found the arbitration clause procedurally 

unconscionable, the Plaintiffs additionally fail to show that it was substantively 

unconscionable. “Substantive unconscionability . . . requires an assessment of 

whether the contract terms are so outrageously unfair as to shock the judicial 

conscience.” Abels v. JPMorgan Chase Bank, N.A., 678 F. Supp. 2d 1273, 1279 

(S.D. Fla. 2009) (King, J.). Here, the Plaintiffs contend the arbitration provision 

is substantively unconscionable because (1) there is a lack of mutuality of 

obligation; and (2) it imposes “substantial costs” on them. (Pls.’ Resp. at 13–

15.) Neither argument withstands scrutiny.

To begin with, the Plaintiffs’ lack-of-mutuality argument, like their 

adhesion argument, is misplaced. The Plaintiffs complain that the ticketing 

agreement allows Event Entertainment to unilaterally modify any of the 

contract’s terms. In presenting their argument, however, the Plaintiffs attack 

language in section 1 of the agreement, which, by its terms, is applicable to the 

contract in its entirety—not just the arbitration clause. (Ticket Agmt., ECF No. 

14-1, 10.) As previously explained above, though, a claim that attacks the 

agreement as a whole, and not just the arbitration provision, should be 

resolved through arbitration. Jenkins, 400 F.3d at 877 (holding that a claim of 

“lack of mutuality of obligation [that] pertain[s] to the contract as a whole, and 

not to the arbitration provision alone . . . should be resolved in arbitration”); 

Burks v. Autonomy, Inc., 11-62677-CIV, 2012 WL 13005954, at *4 (S.D. Fla. 

May 15, 2012) (Dimitrouleas, J.) (compelling arbitration because the plaintiff’s 

lack-of-mutuality argument regarding the defendant’s contractual right to 

change the contract terms was an issue to be decided by the arbitrator).

And, lastly, the Plaintiffs’ protests about the costs of arbitration also fail. 

The Plaintiffs complain that—between the expense of simply initiating

arbitration proceedings and the travel expenses for Plaintiffs who do not live in 

Case 1:20-cv-22495-RNS Document 27 Entered on FLSD Docket 11/23/2020 Page 5 of 7
Miami—it is cost prohibitive for them to arbitrate their claims. But a party 

seeking to invalidate an arbitration clause on such grounds must “offer 

evidence” of both (1) “the amount of fees he is likely to incur” and (2) “his 

inability to pay those fees.” Musnick v. King Motor Co. of Fort Lauderdale, 325 

F.3d 1255, 1260 (11th Cir. 2003). In an attempt to meet their burden, the 

Plaintiffs provide only that “[t]o simply initiate proceedings through the 

[American Arbitration Association] under its commercial arbitration rules . . . 

costs $750 to $3,5000” and that non-Miami resident Plaintiffs will have to pay 

for travel and lodging to attend arbitration. (Pls.’ Resp. at 14 (emphasis in 

original).) These contentions fall short. 

The Plaintiffs’ estimate of the cost to initiate proceedings is purely 

speculative. The authority to which they cite to support their claim is a single 

AAA webpage that lists the costs for “a la carte services.” But they fail to 

provide any evidence why these particular fees would be applicable to their 

claims. And, indeed, Event Entertainment points out that the ticketing 

agreement arbitration clause provides for the application of the “Consumer 

Arbitration Rules.” (Def.’s Reply at 11.) Under those rules, the Plaintiffs’ filing 

fees would be capped at $200 and Event Entertainment must pay virtually all 

other remaining fees and expenses. (Id.) Further, the Consumer Arbitration 

Rules provide that where, as here, no individual claim exceeds $25,000, the 

dispute “shall be resolved by the submission of documents only/desk 

arbitration,” which would eliminate the Plaintiffs’ concerns about travel costs. 

(Id.) And, lastly, under the Consumer Arbitration Rules, the arbitrator can 

reduce a plaintiff’s fees in the event of financial hardship. (Id.) Regardless, 

though, of which rules apply, the Plaintiffs have simply failed to carry their own

burden of proving that the expense of arbitration would be cost prohibitive

which is, ultimately, fatal to their argument. Escobar v. Celebration Cruise 

Operator, Inc., 805 F.3d 1279, 1291 (11th Cir. 2015) (“The party seeking to 

invalidate an arbitration agreement on the ground that arbitration would be 

prohibitively expensive bears the burden of showing the likelihood of incurring 

such costs.”) (cleaned up).

4. Conclusion

In sum, in the face of Event Entertainment’s showing that the parties 

agreed to arbitrate their disputes as provided for in the 2020 ticketing 

agreement, the Plaintiffs fail to come forward with any evidence or viable 

argument that that arbitration should not be compelled. On the other hand, 

the Court disagrees with Event Entertainment that, in compelling arbitration, 

the Court should dismiss the Plaintiffs’ case with prejudice. The Plaintiffs have 

pointedly requested a stay rather than dismissal, should the Court compel 

Case 1:20-cv-22495-RNS Document 27 Entered on FLSD Docket 11/23/2020 Page 6 of 7
arbitration. And under section 3 of the FAA, “the court . . . shall on application 

of one of the parties stay the trial.” 9 U.S.C.A. § 3. The Court thus finds a stay 

here mandatory. Further, even if the Court had discretion in choosing between 

dismissal or a stay, it would opt for a stay in this case. In the event the 

arbitrator in this case were to determine that the arbitration agreement here is 

invalid or inapplicable to the parties’ disputes, this case would not be over and 

therefore dismissal, never mind dismissal with prejudice, would be premature. 

Accordingly, the Court grants in part and denies in part Event 

Entertainment’s motion to compel and to dismiss with prejudice (ECF No. 14). 

As such, the Court orders the parties to submit their disputes to 

arbitration. This case is stayed pending arbitration and the Court orders the 

Plaintiffs to advise the Court once the arbitration is terminated or the claims at 

issue are otherwise resolved. In the meantime, the Clerk is directed to 

administratively close this case.

Done and ordered, in Miami, Florida, on November 23, 2020.

_______________________________

Robert N. Scola, Jr.

United States District Judge

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