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A California federal judge has officially tossed the case at the center of the Live Nation Workers 401(k) Fee Suit Tossed saga, wiping out claims brought by two former employees who accused the entertainment giant of saddling their retirement plan with excessive fees. The ruling comes months after the Ninth Circuit signaled the workers had never properly challenged the company’s ability to enforce a class action waiver — a detail that ultimately proved fatal to their case.

Judge Grants Dismissal, Citing Unanswered Arguments

U.S. District Judge Percy Anderson issued a succinct minute order granting Live Nation’s motion to dismiss the Employee Retirement Income Security Act claims filed in March 2023 by former employees Pamela Avecilla and Sean Bailey. The dismissal was issued without prejudice, but the court made clear its patience is thinning.

The judge said the workers failed to confront any of Live Nation’s specific arguments in their dismissal briefing, prompting the court to treat the motion as unopposed. Plaintiffs insisted the motion had become moot because they intended to narrow their claims in an amended complaint — an argument the judge rejected.

“Any further failure … will be considered in assessing the possible futility of amendment,” Judge Anderson warned, signaling that repeated deficiencies may shut the door permanently.

In a separate order on Wednesday, he also referred the matter to mediation.

Ninth Circuit’s Earlier Ruling Looms in the Background

Live Nation first sought dismissal in November, arguing the plaintiffs lacked standing and failed to state a viable ERISA claim. The dispute previously bounced to the Ninth Circuit, where an Aug. 4 unpublished memorandum added layers of complexity to the case.

The appellate panel partially reversed the district court’s decision compelling arbitration of the proposed class action, ruling that certain unconscionability defenses were wrongly discarded as preempted by ERISA. But the panel refrained from ruling on plaintiff Platt’s remaining arbitration defenses, returning the question to the lower court.

On remand, the workers attempted to press their ERISA claims both individually and on behalf of other plan participants — a move Judge Anderson had already rejected in a Nov. 25 order. He ruled that the court’s earlier determination that Live Nation’s class waiver was enforceable remained intact and unaltered by the Ninth Circuit’s decision.

“The court’s prior ruling … remains binding unless reconsideration is warranted,” he reiterated in Wednesday’s order.

Plaintiffs Promise Amended Complaint; Live Nation Silent

Plaintiffs’ attorney Christina Humphrey downplayed the setback, calling the ruling “purely procedural” and emphasizing the plan to file a revised complaint aligned with “current law and the full factual record” after the appeal.

Live Nation representatives did not immediately respond to requests for comment Thursday.

The former workers are represented by Christina A. Humphrey of Christina Humphrey Law PC.
Live Nation is represented by Michael J. Prame, Shai D. Bronshtein, Chidera F. Onyeoziri of Groom Law Group Chtd., and Ronald K. Alberts of Gordon Rees Scully Mansukhani LLP.