Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 1 of 21
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE: STUBHUB REFUND
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`LITIGATION
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`This Document Relates to All Cases
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`Case No. 20-md-02951-HSG
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`COMPEL ARBITRATION
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`Re: Dkt. No. 39
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`Pending before the Court is Defendant StubHub, Inc.’s motion to compel arbitration. Dkt.
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`No. 39. The Court heard argument on this motion and subsequently requested supplemental
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`briefing. See Dkt. No. 58. For the reasons detailed below, the Court GRANTS IN PART and
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`DENIES IN PART the motion.
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`I. BACKGROUND
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`On August 6, 2020, the Judicial Panel on Multidistrict Litigation transferred several cases
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`against Defendant StubHub for coordinated or consolidated pretrial proceedings with related
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`actions already pending before this Court. See Dkt. No. 1. On November 18, 2020, the Court
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`appointed Tina Wolfson and Tiasha Palikovic as interim class counsel. See Dkt. No. 28.
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`Plaintiffs—over fifty individuals—filed their consolidated amended complaint on January 8, 2021.
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`See Dkt. No. 36 (“CAC”).
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`The putative nationwide class action concerns Defendant’s refund policy for events
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`affected by the COVID-19 pandemic. See id. at ¶¶ 1, 98–111. Plaintiffs allege that Defendant
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`wrongfully changed its policies for refunds for cancelled or rescheduled events as a result of
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`COVID-19. Id. at ¶¶ 1, 4. Plaintiffs allege that for years prior to COVID-19, Defendant had
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`assured customers via its “FanProtect™ Guarantee” that ticket purchasers would receive full
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`United States District Court
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 2 of 21
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`refunds for cancelled events. Id. at ¶ 1. However, in March 2020, in light of the COVID-19
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`pandemic, Defendant announced that instead of a refund, it would issue a 120% credit when an
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`event was cancelled. See id. at ¶¶ 7–8, 10. Plaintiffs allege that on March 25, Defendant also
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`“changed the terms of its FanProtect™ Guarantee on the backpages of its website,” instead stating
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`that “if the event is canceled and not rescheduled, you will get a refund or credit for use on a
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`future purchase, as determined in StubHub’s sole discretion (unless a refund is required by law).”
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`Id. at ¶¶ 8, 83. Each Plaintiff alleges that he or she purchased tickets on StubHub between
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`September 12, 2019, and July 24, 2020, for an event that was scheduled to take place in 2020, and
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`that Plaintiffs were not offered a full refund for the canceled events. Id. at ¶¶ 4, 19–74.
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`Plaintiffs allege that Defendant continues to advertise its FanProtect Guarantee, and has
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`not clarified to users that StubHub no longer provides a money back guarantee. See, e.g., id. at
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`¶¶ 91, 97. Based on these allegations, Plaintiffs bring causes of action under state consumer
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`protection laws and for breach of contract.1 See id. at ¶¶ 122–470.
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`Defendant now moves to compel arbitration. See Dkt. No. 39. It contends that all
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`transactions with StubHub are governed by the StubHub User Agreement. Defendant states that
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`since 2003, the User Agreement has contained an arbitration provision. See id. at 9. Defendant
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`urges that all Plaintiffs were notified of and agreed to the User Agreement when they (1) created
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`StubHub accounts; (2) used StubHub’s website; and/or (3) purchased tickets through the StubHub
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`website. Id. at 4–7, 12–15. Defendant further argues that even “guests” buying tickets on the
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`website had to agree to the User Agreement before they could purchase tickets. See id. at 5.
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`II. LEGAL STANDARD
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`The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., sets forth a policy favoring
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`arbitration agreements and establishes that a written arbitration agreement is “valid, irrevocable,
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`and enforceable.” 9 U.S.C. § 2; Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621 (2018) (noting
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`federal policy favoring arbitration); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
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`1 Plaintiffs bring causes of action under California, Arizona, Florida, Georgia, Illinois, Indiana,
`Louisiana, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New
`York, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Virginia, Washington, and Wisconsin
`law. See CAC at ¶¶ 122–470.
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`Northern District of California
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`United States District Court
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`

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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 3 of 21
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`U.S. 1, 24 (1983) (same). The FAA allows that a party “aggrieved by the alleged failure, neglect,
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`or refusal of another to arbitrate under a written agreement for arbitration may petition any United
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`States district court . . . for an order directing that . . . arbitration proceed in the manner provided
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`for in such agreement.” 9 U.S.C. § 4. This federal policy is “simply to ensure the enforceability,
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`according to their terms, of private agreements to arbitrate.” Volt Info. Sciences, Inc. v. Bd. of
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`Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 476 (1989). Courts must resolve any
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`“ambiguities as to the scope of the arbitration clause itself . . . in favor of arbitration.” Id.
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`When a party moves to compel arbitration, the court must determine (1) “whether a valid
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`arbitration agreement exists” and (2) “whether the agreement encompasses the dispute at issue.”
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`Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010, 1012 (9th Cir. 2004). The
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`agreement may also delegate gateway issues to an arbitrator, in which case the court’s role is
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`limited to determining whether there is clear and unmistakable evidence that the parties agreed to
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`arbitrate arbitrability. See Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). In either
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`instance, “before referring a dispute to an arbitrator, the court determines whether a valid
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`arbitration agreement exists.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524,
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`530 (2019) (citing 9 U.S.C. § 2).
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`III. DISCUSSION
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`In support of the motion to compel arbitration, Defendant contends that in purchasing
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`tickets through StubHub’s website and mobile application, all 56 named Plaintiffs agreed to
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`StubHub’s User Agreement. See Dkt. No. 39-2, Ex. A at 1. Defendant appears to acknowledge
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`that this agreement has changed over time, but asserts that at all relevant times it contained an
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`arbitration provision. See Dkt. No. 48 at 6, n.2. The current User Agreement states in relevant
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`part:
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`If you reside in the United States or Canada, You and StubHub
`each agree, except where prohibited by law, that any and all
`disputes or claims that have arisen or may arise between you and
`StubHub relating in any way to or arising out of this or previous
`versions of the User Agreement (including this Agreement to
`Arbitrate, as the term is defined below) or the breach or validity
`thereof, your use of or access to the Site or Services, or any tickets
`or related passes sold or purchased through the Site or Services
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 4 of 21
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`shall be resolved exclusively through final and binding
`arbitration administered by
`the American Arbitration
`Association
`(“AAA”)
`in accordance with
`its Consumer
`Arbitration Rules (“Rules”), rather than in court, except that you
`may assert claims in small claims court, if your claims qualify and
`so long as the matter remains in such court and advances only on
`an individual (non-class, nonrepresentative) basis (together with
`subsections 22(A)-(F), the “Agreement to Arbitrate”). This
`Agreement to Arbitrate is intended to be broadly interpreted. The
`Federal Arbitration Act governs the interpretation and enforcement of
`this Agreement to Arbitrate.
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`Dkt. No. 39-2. Ex. A at 15, ¶ 22.1 (emphasis in original). Plaintiffs do not appear to dispute that
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`Defendant’s User Agreement(s) contained an arbitration provision. Rather, Plaintiffs’ response is
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`twofold. Plaintiffs contend that (1) they did not agree to the User Agreement; and even if they
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`had, (2) the arbitration provision is not valid or enforceable. See Dkt. No. 44 at 9–30.
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`A. Formation of Agreement to Arbitrate
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`Plaintiffs argue that they did not receive adequate notice of the arbitration agreement, and
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`therefore cannot be bound by it. See Dkt. No. 44 at 15–21.
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`“In determining the validity of an agreement to arbitrate, federal courts ‘should apply
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`ordinary state-law principles that govern the formation of contracts.’” See Ferguson v.
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`Countrywide Credit Indus., Inc., 298 F.3d 778, 782 (9th Cir. 2002) (quoting First Options of
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`Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).2 “An essential element of any contract is the
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`consent of the parties or mutual assent.” See Donovan v. RRL Corp., 26 Cal. 4th 261, 270 (Cal.
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`2001); see also Cal. Civ. Code §§ 1550, 1565. Mutual assent “is determined under an objective
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`standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable
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`meaning of their words and acts, and not their unexpressed intentions or understandings.” Deleon
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`v. Verizon Wireless, LLC, 207 Cal. App. 4th 800, 813 (Cal. Ct. App. 2012) (quotation omitted);
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`see also Cal. Civ. Code § 1639 (“When a contract is reduced to writing, the intention of the parties
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`is to be ascertained from the writing alone, if possible . . . .”). “[A] party’s subjective intent, or
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`subjective consent, therefore is irrelevant” to the question of mutual consent. See Stewart v.
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`2 Here, the parties agree that California law applies. See Dkt. No. 60 (“Hrg. Tr.”) at 8:5–10:1.
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 5 of 21
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`Preston Pipeline Inc., 134 Cal. App. 4th 1565, 1587 (Cal. Ct. App. 2005) (quotation omitted).
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`As the Ninth Circuit has explained, when determining whether there is a binding
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`agreement formed through websites, courts generally evaluate contracts as falling into one of two
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`categories: (1) “browsewrap” agreements, where the website’s terms and conditions are provided
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`to users via a hyperlink at the bottom of a webpage and a user’s assent to the terms is assumed by
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`her continued use of the website; and (2) “clickwrap” agreements, where a user is presented with
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`the terms and conditions and must click on a button or box to indicate that she agrees before she
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`may continue. See Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175–77 (9th Cir. 2014).
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`Websites may also present some hybrid of the two, such as putting a link to the terms and
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`conditions on the web page near a button that the user must click to continue. Regardless, “the
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`onus [is] on website owners to put users on notice of the terms to which they wish to bind
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`consumers.” Id. at 1178–79.
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`Here, the parties’ initial briefing focused on the StubHub website. In support of its motion
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`to compel, Defendant submitted a declaration from Todd Northcutt, a Senior Director of Product
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`Management at StubHub, which made only passing reference to Defendant’s mobile application.
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`See Dkt. No. 39-1 (“Northcutt Decl.”). Mr. Northcutt acknowledged that users may purchase
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`tickets either through the website or mobile application. See id. at ¶¶ 4, 7, 12. On the day of the
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`hearing, Plaintiffs filed an administrative motion to introduce additional materials in opposition to
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`the motion to compel arbitration, including four screenshots of the “sign in” and “checkout”
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`screens from Defendant’s mobile application. See Dkt. No. 54. Although the Court denied the
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`administrative motion as improper, during the hearing Plaintiffs again suggested that the existence
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`of an agreement between the parties to arbitrate may depend on whether Plaintiffs purchased
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`tickets on Defendant’s website or through its mobile application. The Court requested
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`supplemental briefing on this issue. See Dkt. Nos. 58, 59. Because the nature of the notice that
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`named Plaintiffs received may depend on the platform on which they purchased their tickets, the
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`Court addresses the notice that Defendant provided on the StubHub website and its mobile
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`application separately.
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`//
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 6 of 21
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`i. Website
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`Defendant has indicated that according to its records, 32 of the named Plaintiffs purchased
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`their tickets as registered users on the StubHub website and 16 of the named Plaintiffs purchased
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`tickets as guests on the StubHub website. See Dkt. No. 59-1 at ¶¶ 2, 7. And as alleged in the
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`complaint, all named Plaintiffs purchased their tickets between September 12, 2019, and July 24,
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`2020. See CAC at ¶¶ 4, 19–74. Defendant argues that in purchasing tickets on the StubHub
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`website, registered users and guests are presented with StubHub’s operative User Agreement in
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`several different ways. See generally Northcutt Decl. Because the Court finds the checkout
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`process web flow was sufficient to provide constructive notice of the User Agreement and
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`arbitration provision to both registered users and guests, the Court does not address the alternative
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`means.
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`Defendant presents evidence that regardless of whether the user is registered or a guest,
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`when he or she clicks “Checkout” to purchase tickets, a pop-up screen displays, as depicted below:
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`See Northcutt Decl. at ¶ 15. Directly below the “Sign in” and “Continue as guest” buttons, is the
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`sentence: “By purchasing or signing in, you agree to our user agreement and acknowledge our
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`privacy notice.” Id. The terms “user agreement” and “privacy notice” are underlined, in blue font,
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 7 of 21
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`and hyperlinked to those policies. Id. Defendant represents that “[p]rior displays were the same
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`or substantially similar.” Id.
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`Registered Users. As an initial matter, Plaintiffs suggest that the checkout process is
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`somehow insufficient to put registered users on notice of the arbitration provision because the
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`User Agreement has changed over time. See Dkt. No. 44 at 15–18. They note that 43 of the 56
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`named Plaintiffs registered with StubHub before March 25, 2020, the date of the current User
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`Agreement, and therefore had agreed to different versions. See id. at 16. But this misses the
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`point. Although Defendant argues that registered users agreed to the User Agreement during the
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`sign-up process, Defendant argues separately that registered users agreed to the User Agreement
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`as part of the checkout process when they purchased their tickets. See Dkt. No. 39 at 5–6, 12–13.
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`Plaintiffs do not identify any meaningful distinction between the versions of the User Agreement
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`in effect at the time Plaintiffs purchased their tickets. And Plaintiffs’ own evidence indicates that
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`all versions of the User Agreement in place when Plaintiffs purchased their tickets between
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`September 2019 and June 2020 contained a similar arbitration provision. See Dkt. No. 44 at 6–9;
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`see also Dkt. No. 39-2, Ex. A.
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`During the hearing, the Court asked Plaintiffs directly why registered users did not
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`manifest their assent to the operative User Agreement as part of the checkout process when they
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`purchased their tickets. See Hrg. Tr. at 15:24–16:10. In response, Plaintiffs suggested that
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`registered users’ prior history with StubHub was relevant to the inquiry. See id. at 11:6–15:13;
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`16:11–19:9. Plaintiffs argued that at the time registered users signed up on StubHub, they were
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`told they would receive email notice about any changes to the User Agreement. See id. at 11:21–
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`12:18. Because Defendant did not provide any evidence of such notice, Plaintiffs assert that it is
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`reasonable to conclude that they did not provide any email notice of changes to the User
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`Agreement over time. Id.; see also Dkt. No. 44 at 17, & n.10. In short, Plaintiffs argue that
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`because registered users agreed to a prior version of the User Agreement and did not receive email
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`notice of any changes, they are somehow precluded from agreeing to a later version of the User
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`Agreement.
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`The Court is not persuaded. Plaintiffs offer no authority supporting this reliance-based
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`argument. The only case they cite, Douglas v. United States Dist. Court for the Cent. Dist. of
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`Cal., 495 F.3d 1062, 1066 (9th Cir. 2007), is inapposite. In Douglas, the plaintiff had agreed to a
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`service contract with America Online (“AOL”). See Douglas, 495 F.3d at 1065–66. When Talk
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`America later acquired AOL, it changed the service contract to add, inter alia, an arbitration
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`agreement, and posted the revised contract on its website. Id. But Talk America did not provide
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`any direct notice to the plaintiff that the contract had changed. Id. In vacating the district court’s
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`order compelling arbitration, the Ninth Circuit reasoned that “a party can’t unilaterally change the
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`terms of a contract; it must obtain the other party’s consent before doing so.” Id. at 1066. “[A]
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`revised contract is merely an offer and does not bind the parties until it is accepted.” Id. But here,
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`in contrast, the checkout screen required even registered users to manifest assent to the current
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`User Agreement at the time they purchased their tickets. Accord Lee v. Ticketmaster L.L.C., 817
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`F. App’x 393, 395 (9th Cir. 2020).3
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`Guests. Plaintiffs next argue that the checkout process on the StubHub website is also
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`insufficient as to the 16 guest users. Dkt. No. 44 at 20–22. As noted above, as part of the
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`checkout process, all Plaintiffs who purchased tickets on the StubHub website clicked a button
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`labeled either “Sign in” or “Continue as guest.” See Northcutt Decl. at ¶ 15. Below these buttons
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`was the following hyperlinked statement: “By purchasing or signing in, you agree to our user
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`agreement and acknowledge our privacy notice.” Id.
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`Plaintiffs first contend that the 16 guest Plaintiffs could not manifest their assent to the
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`User Agreement by clicking the “Continue as guest” button because when they clicked that button
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`they were not actually purchasing tickets yet. See Dkt. No. 44 at 21. Under Plaintiffs’ theory, the
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`disclosure should have read instead “that by ‘continuing as guest’ or ‘by proceeding past this
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`page’ [the guest users] would be agreeing to the [User Agreement].” See id. at 20. Plaintiffs rely
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`on a single district court case, Berman v. Freedom Fin. Network, LLC, No. 18-CV-01060-YGR,
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`2020 WL 5210912, at *1 (N.D. Cal. Sept. 1, 2020), in support of this argument.
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`In Berman, the plaintiffs alleged that they received unsolicited telemarketing text messages
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`3 As an unpublished Ninth Circuit decision, Lee v. Ticketmaster is not precedent, but may be
`considered for its persuasive value. See Fed. R. App. P. 32.1; CTA9 Rule 36-3.
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 9 of 21
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`from digital marketing companies touting services offered by its advertiser clients. See Berman,
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`2020 WL 5210912, at *1. One of the marketing companies operated “consumer-facing websites
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`which offer[ed] users the possibility of rewards, discounts, product samples or entry into
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`sweepstakes.” Id. The marketing company used these websites to collect the consumers’ data for
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`its clients’ marketing campaigns. Id. The marketing company argued that the plaintiffs’ claims
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`were subject to arbitration because the plaintiffs had agreed to terms and conditions on its website
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`that included an arbitration provision. Id. In denying the motion to compel arbitration, the court
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`found that there was a material dispute of fact regarding the veracity and completeness of the
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`screenshots that the marketing company offered regarding its website. Id. at *3. In the alternative,
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`the court briefly identified other possible problems with the website, including as relevant here
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`that the proffered webpages “do not include a specific affirmative means of indicating consent to
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`the Terms & Conditions or arbitration clause.” Berman, 2020 WL 5210912, at *3. A screenshot
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`from the marketing company’s webpage is depicted below:
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`See id. at *4, Appendix A. In evaluating this screen, the court reasoned that “while there is text
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`including a hyperlink to the terms of the agreement located near a button the user must click to
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`continue, there is no text that notifies users that they will be deemed to have agreed to these terms
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`nor prompts them to take any affirmative action to demonstrate assent.” Id. at *3 (quotation
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`omitted). And “[t]he ‘This is correct, Continue!’” button “plainly refer[s] to the entry of other
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 10 of 21
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`information on the page, not assent to the Terms & Conditions.” Id.
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`Here, in contrast, the StubHub webpage clearly explains to guests that “By purchasing or
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`signing in, you agree to our user agreement and acknowledge our privacy notice.” See Northcutt
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`Decl. at ¶ 15. Although Plaintiffs are correct that the “Continue as guest” button does not read
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`“buy now” or “purchase,” it is the first step in the process to purchase tickets on the website: the
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`checkout screen with the “Continue as guest” button above only pops up when a guest or
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`registered user clicks “Checkout” to purchase tickets. See Northcutt Decl. at ¶ 15. Unlike in
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`Berman, therefore, there is no risk of confusion as to whether users, by purchasing tickets on
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`StubHub, are agreeing to the User Agreement.
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`Relatedly, Plaintiffs argue that the notice of the User Agreement on the checkout screen is
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`not sufficiently close to the actual “buy now” button. See Dkt. No. 44 at 21–22. Plaintiffs
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`contend that because the notice of the User Agreement states that “By purchasing . . . you agree to
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`our user agreement,” guest users may only manifest assent to the User Agreement by clicking the
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`“buy now” button. Id. They point out, however, that the checkout screen with the notice of the
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`User Agreement is “at least five screens removed from the screen on which a ‘Buy now’ button
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`would allow the visitor to actually purchase tickets.” Id. at 21, & n.13; see also Dkt. No. 51-1,
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`Exs. 1–6. Plaintiffs also point out that the actual screen with the “Buy now” button does not
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`contain any disclosure about the User Agreement.4 Id. Plaintiffs accordingly suggest that “‘the
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`design and content of the checkout process distract[ed] users from recognizing the existence of,
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`and need to review’ the User Agreement.” See Dkt. No. 44 at 21 (quoting Shultz v. TTAC Publ’g,
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`LLC, No. 20-CV-04375-HSG, 2020 WL 6937818, at *4 (N.D. Cal. Oct. 26, 2020)).
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`Plaintiffs cite Weber v. Amazon.com, No. CV 17-8868-GW (Ex), 2018 WL 6016975, at
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`*11 (C.D. Cal. June 4, 2018). See Dkt. No. 44 at 20–21. In Weber, the plaintiffs challenged
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`Amazon’s practice of storing customers’ credit card information and charging them without
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`authorization for purchases made through various Amazon platforms and services. Weber, 2018
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`4 There appears to be some dispute about this, as Plaintiffs have provided some screenshots that
`show another disclosure on the “buy now” screen and some screenshots that do not. See Dkt. No.
`51 at 1–3; see also Dkt. No. 51-1, Exs. 1–6. For purposes of this argument, however, the Court
`assumes the “buy now” screen does not contain another disclosure.
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 11 of 21
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`WL 6016975, at *2. Amazon moved to compel the case to arbitration, arguing that the plaintiffs
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`had constructive notice of Amazon’s terms of use from its website and mobile application. Id. at
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`*3. The court found that the desktop web flows afforded constructive notice of Amazon’s terms
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`of use. See id. at *9–10. However, the court found that the mobile web flow did not provide
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`constructive notice. Id. at *11. It contained two “Place your order” buttons at the top and bottom
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`of the checkout screen. Id. But the notice of the terms of use only appeared before the first
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`button. Id. In denying the motion to compel as to the mobile application, the court reasoned that
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`“a consumer [wa]s unlikely to even notice the small font disclosure” above the first of the two
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`“Place your order” buttons. Id. The court explained that because “the vital information related to
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`the customer’s order follows the first ‘Place your order’ button,” a consumer was unlikely to scroll
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`back up to the top of the screen to click the first “Place your order” button and notice the
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`disclosure. Id.
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`But as already discussed above, the notice of StubHub’s User Agreement is directly below
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`the button to continue as a guest and proceed to purchase. See Northcutt Decl. at ¶ 15. The
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`reference to the User Agreement is in blue, underlined, and thus set off from the rest of the test,
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`and the actual User Agreement is hyperlinked. Id. And unlike the web flow this Court considered
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`in Shultz v. TTAC Publishing, the StubHub checkout screen does not contain other distracting
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`design elements that obscure the disclosure on the page. 2020 WL 6937818, at *4 (finding design
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`and content, including large green checkmarks and a promotional video, distracted the user from
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`the disclosure).
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`Lastly, in a footnote Plaintiffs argue that the User Agreement itself “is ambiguous as to its
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`applicability to Guests” because the User Agreement references “users” and not “guests.” See
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`Dkt. No. 44 at 20, & n.12. The Court finds this argument meritless. Although a guest may not be
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`registered, he or she is still using the StubHub website to purchase tickets.
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`In short, the Court finds that the checkout screen provides “explicit textual notice that
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`continued use will act as a manifestation of the user’s intent to be bound.” Nguyen, 763 F.3d at
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`*
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`*
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`*
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`1176.
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 12 of 21
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`ii. Mobile Application
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`Defendant has provided records reflecting that eight named Plaintiffs purchased their
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`tickets as registered users on the StubHub mobile application.5 See Dkt. No. 59-1 at ¶ 7.
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`However, there appears to be a factual dispute about the constructive notice provided through the
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`mobile application. In response to Plaintiffs’ argument that the “sign in” and “checkout”
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`processes on the mobile application do not contain a disclosure of the User Agreement, the Court
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`gave Defendant an opportunity to respond and, inter alia, “provide any materials reflecting
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`relevant differences between the processes for purchasing tickets on the website as compared to
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`the mobile application.” See Dkt. No. 58. In response, however, Defendant did not offer any
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`screenshots or evidence for the sign in or checkout processes on the mobile application.6 See Dkt.
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`No. 59. There is therefore insufficient evidence for the Court to conclude that these eight
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`Plaintiffs received adequate notice of the arbitration agreement when they purchased their tickets
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`on the mobile application.
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`In its supplemental briefing, Defendant emphasizes that all eight named Plaintiffs were
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`registered users, and thus agreed to the terms of the User Agreement as part of the registration
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`process. See Dkt. No. 59 at 2–3; see also Northcutt Decl. at ¶ 7. Defendant does not address
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`whether these eight Plaintiffs registered on the website or on the mobile application, but confirms
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`that the sign-up process is substantially the same on the mobile application as on the website. See
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`Dkt. No. 59; see also Northcutt Decl. at ¶¶ 66–68, 105–07, 123–28, 138–40, 169–74 (describing
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`date on which Plaintiffs registered and purchased tickets). Defendant provides the following
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`screenshot of the current sign-up screen on the mobile application:
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`5 These include Plaintiffs Dahl, Glaspey, Koble, Matlock, McDaniel, Mignault, Williams, and
`Wutz. See Dkt. No. 59-1 at ¶ 7.
`6 In his original declaration, Todd Northcutt stated that “[a]pp users receive a [] message with text
`highlighted in bold contrasting print, that is hyperlinked and states: “By signing up, you agree to
`our user agreement and privacy notice.” See Northcutt Decl. at ¶ 12 (emphasis in original).
`However, Defendant did not provide any screenshots. And the screenshots from the mobile
`application that Plaintiffs proffered do not reflect such a disclosure. See Dkt. No. 54-5, Exs. 1–4.
`At the very least, there is a factual dispute about the nature of the constructive notice provided on
`the mobile application during the checkout process.
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`Case 4:20-md-02951-HSG Document 62 Filed 11/22/21 Page 13 of 21
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`Dkt. No. 59-1 at ¶ 6. However, Defendant does not explain how and to what extent this sign-up
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`screen changed or stayed the same over time.7 But these Plaintiffs registered with StubHub at
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`different times from 2003 to 2020. See Dkt. No. 39, Appendix A. Defendant offers only a
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`conclusory statement for each registered Plaintiff that “[b]y clicking ‘Sign up’ after completing the
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`User Registration Form . . . the notifications informing [Plaintiff] that [his or her] actions resulted
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`in agreement to the User Agreement were displayed to [him or her] multiple times.” See, e.g.,
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`Northcutt Decl. at ¶ 106.
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`Because the Court does not know what sign-up screen these eight Plaintiffs saw when they
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`registered, the Court cannot adequately assess whether they received constructive notice of the
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`User Agreement when they signed up with StubHub. Even assuming these Plaintiffs received
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`constructive notice, Defendant does not provide the User Agreement in place at the time each
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`Plaintiff registered. For some of these Plaintiffs, therefore, the Court cannot determine if they
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`agreed to a User Agreement with a viable arbitration agreement. The Court finds that Defendant
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`7 In contrast, Defendant states that for the checkout process and sign-in screens, “[p]rior displays
`were the same or substantially similar.” See Northcutt Decl. at ¶¶ 15, 17.
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