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`William P. Donovan, Jr. (SBN 155881)
`MCDERMOTT WILL & EMERY LLP
`2049 Century Park East, Suite 3200
`Los Angeles, CA 90067-3206
`Telephone: (310) 277-4110
`Facsimile: (310) 277-4730
`wdonovan@mwe.com
`
`Daniel R. Campbell (pro hac vice)
`Emilie E. O’Toole (pro hac vice)
`MCDERMOTT WILL & EMERY LLP
`444 West Lake Street, Suite 4000
`Chicago, IL 60606
`Telephone: (312) 372-2000
`Facsimile: (312) 984-7700
`dcampbell@mwe.com
`eotoole@mwe.com
`
`Counsel for Defendant StubHub, Inc.
`
`
`
`
`
`IN RE STUBHUB REFUND LITIGATION
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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` Case No. 4:20-md-02951-HSG
`
`DEFENDANT STUBHUB, INC.’S NOTICE
`OF MOTION AND COMBINED
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`RENEWED MOTION TO COMPEL
`ARBITRATION AND MOTION TO
`DISMISS
`
`[Filed concurrently with Supplemental
`Declaration of Todd Northcutt and [Proposed]
`Orders]
`
`Judge: Hon. Haywood S. Gilliam, Jr.
`Date: May 5, 2022
`Time: 2:00 p.m.
`Courtroom: 2
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` No. 4:20-md-02951-HSG
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`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
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`

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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 2 of 23
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`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE THAT on May 5, 2022, at 2:00 p.m., or as soon thereafter as the
`matter may be heard, before the Honorable Haywood S. Gilliam, Jr. of the United States District
`Court for the Northern District of California, in Courtroom 2, of the above-entitled Court, located at
`1301 Clay Street, Oakland, California, Defendant StubHub, Inc. (“StubHub”) will and hereby does
`renew its motion to the Court for an order compelling arbitration of all non-California statutory
`causes of action for relief asserted against StubHub by the eight Plaintiffs not previously compelled
`to arbitration (the “Remaining Plaintiffs”) in the Consolidated Class Action Complaint filed on or
`about January 8, 2021 (the “Complaint” or “CAC”) based on the valid and binding arbitration clause
`in the StubHub Marketplace Global User Agreement (“User Agreement” or “StubHub User
`Agreement”) that Remaining Plaintiffs were on notice of and agreed to by using StubHub. StubHub
`further moves this Court for an order dismissing Remaining Plaintiffs’ California and non-California
`statutory causes of action and negligent misrepresentation cause of action for relief asserted against
`StubHub.
`The Renewed Motion to Compel Arbitration should be granted pursuant to the Federal
`Arbitration Act, 9 U.S.C. § 1, et seq., because transactions with StubHub are governed by the
`StubHub User Agreement. Indeed, the operative arbitration clause in the User Agreement has
`already been upheld by this Court. (ECF No. 62.) The Remaining Plaintiffs who were not previously
`compelled to arbitration by this Court were clearly notified of the User Agreement and assented to
`its terms when they created their StubHub accounts and/or signed into their StubHub accounts.
`Because the User Agreement contains a binding class action waiver and arbitration provision
`governing the instant dispute, the claims alleged in the Complaint should be sent to arbitration on an
`individual basis and this lawsuit either dismissed or stayed. Punctuating the appropriateness of
`compelling arbitration is the fact that the Remaining Plaintiffs expressly sue to enforce the StubHub
`User Agreement and are therefore estopped from challenging the arbitration provision as
`unconscionable.
`The Motion to Dismiss should be granted for multiple reasons, as set forth in StubHub’s
`memorandum filed herewith. First, Remaining Plaintiffs Koble and Wutz lack standing to pursue
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` No. 4:20-md-02951-HSG
`DEFENDANT STUBHUB, INC.’S COMBINED MEMORANDUM ISO
`MOTION TO DISMISS AND RENEWED MOTION TO COMPEL ARBITRATION
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`DM_US 185701084-9.070286.0012
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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 3 of 23
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`their claims against StubHub as they have not alleged an injury in fact. Second, all Remaining
`Plaintiffs lack statutory standing to assert their California statutory claims because they fail to plead
`reliance. The negligent misrepresentation claim fails for the same reason. Third, Remaining
`Plaintiffs’ California Consumers Legal Remedies Act (“CLRA”) claim further fails because they do
`not allege a misrepresentation that existed at the time of sale, as required to state a claim. Finally,
`Remaining Plaintiffs’ reliance on the User Agreement’s choice of California law provision precludes
`their non-California statutory claims.
`StubHub bases its Renewed Motion to Compel Arbitration and its Motion to Dismiss on this
`Notice, the accompanying Memorandum of Points and Authorities, all pleadings and papers filed in
`this action, the argument of counsel, and any other matters that may come before the Court.
`Dated: January 24, 2022
`
` Respectfully submitted,
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`William P. Donovan, Jr. (SBN 155881)
`MCDERMOTT WILL & EMERY LLP
`2049 Century Park East, Suite 3200
`Los Angeles, CA 90067-3206
`Tel: (310) 277-4111
`Fax: (310) 277-4730
`wdonovan@mwe.com
`
`Daniel R. Campbell (pro hac vice)
`Emilie E. O’Toole (pro hac vice)
`MCDERMOTT WILL & EMERY LLP
`444 West Lake Street
`Suite 4000
`Chicago, IL 60606
`Telephone: (312) 372-2000
`Facsimile: (312) 984-7700
`dcampbell@mwe.com
`eotoole@mwe.com
`
`Counsel for Defendant StubHub, Inc.
`
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` No. 4:20-md-02951-HSG
`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
`
`DM_US 185701084-9.070286.0012
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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 4 of 23
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`Table of Contents
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`Page(s)
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`INTRODUCTION ...................................................................................................................1
`I.
`BACKGROUND .....................................................................................................................1
`II.
`LEGAL STANDARD ..............................................................................................................2
`III.
`IV. ARGUMENT ...........................................................................................................................3
`a.
`The Remaining Plaintiffs Should Be Compelled to Arbitration ..................................3
`i.
`The Remaining Plaintiffs Agreed to and Are Bound by the User Agreement .3
`ii.
`The Remaining Plaintiffs All Sued to Enforce the User Agreement and are
`Estopped from Avoiding Arbitration ...............................................................8
`Most of the Claims in Plaintiffs’ Consolidated Amended Complaint Should Be
`Dismissed .....................................................................................................................9
`i.
`Plaintiffs Paul Koble and Benjamin Wutz Lack Standing to Sue StubHub ....9
`ii.
`Plaintiffs Lack Statutory Standing Because They Fail to Plead Actual
`Reliance on Any Misrepresentation (COAs 1–3) ..........................................11
`Plaintiffs Fail to State a CLRA Cause of Action (COA 1) ............................12
`Plaintiffs’ Negligent Misrepresentation Claim Fails (COA 6) ......................14
`Plaintiffs’ Non-California Statutory Claims Should Be Dismissed
`(COAs 9–31) ..................................................................................................14
`CONCLUSION ......................................................................................................................15
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`b.
`
`iii.
`iv.
`v.
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`V.
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`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
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`DM_US 185701084-9.070286.0012
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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 5 of 23
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`TABLE OF AUTHORITIES
`
`
`
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`Page(s)
`
`Cases
`
`Airtourist Holdings LLC v. HNA Group,
`2018 WL 3069444 (N.D. Cal. Mar. 27, 2018) ...........................................................................8
`
`In re Apple and AT&T iPad Unlimited Data Plan Litig.,
`802 F. Supp. 2d 1070 (N.D. Cal. 2011) .....................................................................................3
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................3
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................3
`
`Bentley v. The Control Grp. Media Co.,
`2020 WL 3639660 (S.D. Cal. July 6, 2020) ..............................................................................9
`
`Cetacean Cmty. v. Bush,
`386 F.3d 1169 (9th Cir. 2004) ...................................................................................................9
`
`Chevron Prod. Co. v. Advanced Corrosion Techs. & Training, LLC,
`2021 WL 2156467 (N.D. Cal. May 27, 2021) .........................................................................14
`
`Chiron Corp. v. Ortho Diagnostic Sys., Inc.,
`207 F.3d 1126 (9th Cir. 2000) ...................................................................................................4
`
`Cooper v. Pickett,
`137 F.3d 616 (9th Cir. 1997) .....................................................................................................3
`
`Erickson v. Pardus,
`551 U.S. 89 (2007) (per curiam) ...............................................................................................3
`
`Fraley v. Facebook, Inc.,
`830 F. Supp. 2d 785 (N.D. Cal. 2011) .......................................................................................2
`
`G.P.P., Inc. v. Guardian Protection Prods., Inc.,
`2015 WL 4879430 (E.D. Cal. Aug. 14, 2015) .........................................................................15
`
`Great Pac. Sec. v. Barclays PLC,
`2016 WL 11502178 (C.D. Cal. Oct. 19, 2016), aff'd sub nom. Great Pac. Sec. v.
`Barclays Capital, Inc., 743 F. App'x 780 (9th Cir. 2018) .......................................................13
`
`Hall v. Sea World Ent., Inc.,
`
`2015 WL 9659911 (S.D. Cal. Dec. 23, 2015)..........................................................................13
`
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`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
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`DM_US 185701084-9.070286.0012
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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 6 of 23
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`In re iPhone App. Litig.,
`6 F.Supp.3d 1004 (N.D. Cal. 2013) .........................................................................................11
`
`Larson v. Speetjens,
`2006 WL 2567873 (N.D. Cal. Sept. 5, 2006), order clarified, 2006 WL 3365589
`(N.D. Cal. Nov. 17, 2006) ..........................................................................................................8
`
`Lazar v. Superior Court,
`12 Cal. 4th 631 (1996) .............................................................................................................11
`
`Lee v. Ticketmaster L.L.C.,
`817 Fed. Appx. 393 (9th Cir. 2020) ...........................................................................................6
`
`Murphy v. DirecTV, Inc.,
`724 F.3d 1218 (9th Cir. 2013) ...................................................................................................8
`
`Neu v. Terminix Intern., Inc.,
`2008 WL 2951390 (N.D. Cal. 2008) .......................................................................................13
`
`Peter v. DoorDash, Inc.,
`445 F. Supp. 3d 580 (N.D. Cal. 2020) .......................................................................................6
`
`Resnick v. Hyundai Motor Am., Inc.,
`2017 WL 1531192 (C.D. Cal. Apr. 13, 2017) .........................................................................12
`
`Richter v. CC-Palo Alto, Inc.,
`176 F. Supp. 3d 877 (N.D. Cal. 2016) .....................................................................................10
`
`Ross v. AT&T Mobility, LLC,
`2020 WL 9848733 (N.D. Cal. Dec. 18, 2020) ...........................................................................3
`
`Rothman v. Equinox Holdings, Inc.,
`2021 WL 124682 (C.D. Cal. Jan. 13, 2021) ............................................................................11
`
`Rubenstein v. The Gap, Inc.,
`14 Cal. App. 5th 870 (2017) ....................................................................................................12
`
`Samica Enterprises LLC v. Mail Boxes Etc., Inc.,
`460 Fed. Appx. 664 (9th Cir. 2011) .........................................................................................15
`
`Seldin v. HSN, Inc.,
`2018 WL 3570308 (S.D. Cal. July 25, 2018) ..........................................................................14
`
`Shahar v. Hotwire, Inc.,
`2013 WL 12176843 (N.D. Cal. Apr. 15, 2013) .........................................................................2
`
`Smith v. Keurig Green Mountain, Inc.,
`393 F. Supp. 3d 837 (N.D. Cal. 2019) .......................................................................................3
`
`
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` No. 4:20-md-02951-HSG
`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
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`DM_US 185701084-9.070286.0012
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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 7 of 23
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`
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`Stewart v. Electrolux Home Prod., Inc.,
`304 F. Supp. 3d 894 (E.D. Cal. 2018)................................................................................12, 14
`
`Taylor v. Google LLC,
`2021 WL 4503459 (N.D. Cal. Oct. 1, 2021)..............................................................................2
`
`Other Authorities
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`Fed. R. Civ. P. 8(a)(2) ......................................................................................................................3
`
`Fed. R. Civ. P. 9(b) ....................................................................................................................3, 12
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`Fed. R. Civ. P. 12(b)(1)....................................................................................................................2
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`Fed. R. Civ. P. 12(b)(6)....................................................................................................................3
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`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
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`DM_US 185701084-9.070286.0012
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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 8 of 23
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`Defendant StubHub, Inc. (“StubHub”) respectfully submits this Combined Memorandum of
`Points and Authorities in support of its Renewed Motion to Compel Arbitration and Motion to
`Dismiss.
`INTRODUCTION
`I.
`In granting in part StubHub’s Motion to Compel Arbitration (the “Motion”), this Honorable
`Court’s Order, dated November 23, 2021 (ECF No. 62), recognized the enforceability of StubHub’s
`arbitration provisions for the damage claims of forty-eight of the named Plaintiffs in this putative
`class action. This memorandum of law briefly summarizes why, based on the reasoning in the Order
`and the Supplemental Declaration of Todd Northcutt filed herewith (“Northcutt Supp. Decl.”),
`arbitration should be compelled for the remaining eight named Plaintiffs (the “Remaining Plaintiffs”)
`who unquestionably were notified of, and assented to, StubHub’s arbitration provision in close
`proximity to their purchases of the tickets at issue in this civil action.
`Should the Court reach the issues raised by StubHub’s Motion to Dismiss (the “MTD”), the
`Consolidated Amended Complaint (the “CAC”) is fatally flawed for numerous reasons. First,
`Remaining Plaintiffs Koble and Wutz lack standing to assert their claims because they did not sustain
`an injury sufficient to confer standing. Second, all eight Remaining Plaintiffs lack statutory standing
`to assert their California statutory claims because they fail to plead reliance. The negligent
`misrepresentation claim likewise fails for the same reason. Third, Remaining Plaintiffs’ California
`Consumers Legal Remedies Act (“CLRA”) claim further fails because they do not allege a
`misrepresentation that existed at the time of sale, as required to state a claim. Finally, Remaining
`Plaintiffs’ reliance on the User Agreement’s choice of California law provision precludes their non-
`California statutory claims.
`Accordingly, StubHub respectfully asks that the claims of Remaining Plaintiffs be sent to
`arbitration or, in the alternative, that the MTD be granted without further leave to amend.
`BACKGROUND
`II.
`The Court is familiar with the allegations in this case. See, e.g., ECF No. 62. StubHub is an
`online ticket marketplace on which users and guests can buy or sell tickets or other related passes for
`theater, concerts, sports events, or other entertainment events. (CAC ¶ 75.) StubHub is not the
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`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
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`DM_US 185701084-9.070286.0012
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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 9 of 23
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`original seller of the tickets or the holder of the inventory. (Id. ¶ 76.) The eight Remaining Plaintiffs
`who made the ticket purchases at issue on the StubHub app are Plaintiffs David Dahl, Ernie Glaspey,
`Paul Koble, Amanda Matlock, Reginald McDaniel, William Mignault, Jennifer Williams, and
`Benjamin Wutz. (Northcutt Supp. Decl. ¶ 2.) These Remaining Plaintiffs are citizens of Georgia,
`Indiana, Maryland, Massachusetts, New York, Oregon, and Pennsylvania. (CAC ¶¶ 32, 34, 36, 40,
`43, 55, 61, 63.)
`Plaintiffs generally allege that StubHub failed to issue refunds for tickets purchased from
`resellers using StubHub to events impacted by COVID-19. (CAC ¶¶ 4, 76, 19–74.) Plaintiffs allege
`that StubHub changed the terms of its FanProtect Guarantee on March 25, 2020 “on the backpages
`of its website” to allow issuance of a credit for a future purchase, rather than a refund, when an event
`is “canceled and not rescheduled,” without notifying users of the change. (Id. ¶ 83.) They allege
`thirty-one different causes of action against StubHub, which include claims under the CLRA, Unfair
`Competition Law (“UCL”), False Advertising Law (“FAL”), conversion, restitution, negligent
`misrepresentation, unjust enrichment, breach of contract, and twenty-three non-California state
`consumer protection claims. (Id. ¶¶ 122–470.) Pursuant to the Court’s Order on StubHub’s motion
`to compel arbitration, all damage claims by forty-eight of the Plaintiffs are compelled to arbitration.
`(ECF No. 62.) The case is otherwise stayed as to those forty-eight Plaintiffs, pending the outcome
`of the arbitrations. (Id.)
`III. LEGAL STANDARD
`The standard for arbitration of claims is set forth in detail in the Order. (ECF No. 62.) On
`the MTD, all Remaining Plaintiffs must allege and establish standing under Article III of the
`Constitution and show they suffered injury-in-fact and loss of money or property as a result of
`StubHub’s alleged conduct. See Shahar v. Hotwire, Inc., 2013 WL 12176843, at *3 (N.D. Cal. Apr.
`15, 2013). Pursuant to Rule 12(b)(1), a defendant may challenge standing either on the face of the
`pleadings or by presenting extrinsic evidence. Taylor v. Google LLC, 2021 WL 4503459, at *2 (N.D.
`Cal. Oct. 1, 2021); see also Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 793 (N.D. Cal. 2011) (“In
`resolving a factual dispute as to the existence of subject matter jurisdiction, a court may review
`
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` No. 4:20-md-02951-HSG
`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
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`DM_US 185701084-9.070286.0012
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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 10 of 23
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`extrinsic evidence beyond the complaint without converting a motion to dismiss into one for
`summary judgment.”).
`A complaint must provide a “short and plain statement of the claim showing that [she] is
`entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A complaint that offers “labels and conclusions” or
`“formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S.
`662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Instead, a complaint
`must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting
`Twombly, 550 U.S. at 570). The complaint allegations “must be enough to raise a right to relief
`above the speculative level.” Twombly, 550 U.S. at 555.
`“Rule 12(b)(6) allows an attack on the pleadings for failure to state a claim on which relief
`can be granted. When ruling on a defendant's motion to dismiss, “a judge must accept as true all of
`the factual allegations contained in the complaint.” Ross v. AT&T Mobility, LLC, 2020 WL 9848733,
`at *4 (N.D. Cal. Dec. 18, 2020) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
`The court is not bound to accept legal conclusions couched as facts, or naked assertions “devoid of
`factual enhancement.” Id.
`Finally, claims that “sound in fraud” must satisfy the heightened pleading standard of
`particularity in FRCP 9(b). See In re Apple and AT&T iPad Unlimited Data Plan Litig., 802 F. Supp.
`2d 1070, 1075 (N.D. Cal. 2011). To satisfy Rule 9(b)’s particularity requirement, “a fraud claim
`must state the ‘who, what, when, where, and how’ of the alleged conduct” and why the conduct
`complained of was “false or misleading.” See Smith v. Keurig Green Mountain, Inc., 393 F. Supp.
`3d 837, 843 (N.D. Cal. 2019) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).
`IV. ARGUMENT
`The Remaining Plaintiffs Should Be Compelled to Arbitration
`a.
`The Remaining Plaintiffs Agreed to and Are Bound by the User Agreement
`i.
`Pursuant to the Court’s Order on StubHub’s motion to compel arbitration, the Remaining
`Plaintiffs who made their disputed purchases on the StubHub app were not compelled to arbitration,
`
`
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` No. 4:20-md-02951-HSG
`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
`
`DM_US 185701084-9.070286.0012
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`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 11 of 23
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`based on the information before the Court at that time. (ECF No. 62 at 13–14.)1 The Court’s role in
`compelling a plaintiff to arbitration is “limited to determining (1) whether a valid agreement to
`arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Chiron
`Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). The Court has already
`determined that the StubHub arbitration provision encompasses Plaintiffs’ dispute here. (ECF No.
`62.) The Remaining Plaintiffs agreed to be and are bound by the User Agreement. All eight
`Remaining Plaintiffs viewed and assented to a nearly identical, valid sign-in disclosure on the
`StubHub website as the other Plaintiffs that were compelled to arbitration. Thus, the Remaining
`Plaintiffs were on notice that they would be bound by the User Agreement and its terms, including
`the arbitration provision, in close proximity to the time they purchased their tickets. (See ECF No.
`39-1 ¶ 30.)
`In the Order, the Court properly found that the robust disclosure on the StubHub website was
`sufficient to bind users to the arbitration provision. (ECF No. 62.) Specifically, the Court found that
`the disclosure upon checking out on StubHub’s website, which directed each user to “Sign in” or
`“Continue as guest,” was sufficient to put Plaintiffs who logged in that way on notice of the User
`Agreement and thus bind them to it. (Id. at 6.) The disclosure analyzed by the Court is a disclosure
`of the StubHub website sign-in page that a user accesses in the checkout flow to purchase tickets.
`(Id.) The sign-in disclosure on checkout is virtually identical to the general sign-in disclosure that
`each of the Remaining Plaintiffs used to sign into StubHub. A side-by-side of the disclosure relied
`upon in the Order and the disclosure the eight Remaining Plaintiffs were exposed to, and assented to,
`are below. The Court’s sound reasoning finding that the other forty-eight Plaintiffs were compelled
`to arbitration should apply to the Remaining Plaintiffs who signed into the StubHub website.
`
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`1 As the Court is aware, there was nothing in the CAC claiming any difference between app users
`and other StubHub users. This issue was raised through a flurry of supplemental and last-minute
`filings by Plaintiffs, including on the day of the hearing on the motion to compel arbitration.
`Having now had time to investigate counsel’s claims related to “app users,” StubHub has
`determined that the proffered distinction of the eight Remaining Plaintiffs as “app” Plaintiffs is a
`distraction and the Court should also compel Remaining Plaintiffs to arbitration based upon
`disclosures the Order has already concluded were lawful.
`
`- 4 -
` No. 4:20-md-02951-HSG
`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
`
`DM_US 185701084-9.070286.0012
`
`

`

`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 12 of 23
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`Disclosure upheld in the Order
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`Disclosure Seen by Remaining Plaintiffs
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`(ECF No. 39-1 at ¶¶ 15, 17.) The Court noted that, “Here, in contrast, the StubHub webpage clearly
`explains to guests that ‘By purchasing or signing in, you agree to our user agreement and
`acknowledge our privacy notice.’” (ECF No. 62 at 10.) It concluded “there is no risk of confusion
`as to whether users, by purchasing tickets on StubHub, are agreeing to the User Agreement.” (Id.)
`The same analysis and logic applies to the sign-in screen seen by the Remaining Plaintiffs. The
`supplemental factual investigation performed by StubHub clearly indicates that the Remaining
`Plaintiffs should be compelled to arbitration as set forth in the Order.
`Because Plaintiffs made last minute arguments that these eight Remaining Plaintiffs are app
`purchasers, StubHub conducted further factual investigation into their use, sign-in, and registration
`on StubHub on both the website and the app. Factual verification regarding each of these Remaining
`Plaintiffs confirms they all assented to the operative version of the User Agreement by unequivocally
`signing into the StubHub website—the same User Agreement this Court relied on to compel
`arbitration of the other 48 Plaintiffs. (ECF No. 62.) While Plaintiffs argue that the Remaining
`Plaintiffs are “app users,” they failed to mention to this Court that they also were on notice of, and
`assented to, the User Agreement by signing into and using the StubHub website.
`One of the Remaining Plaintiffs, Mr. Koble, did not even register as a StubHub user or make
`the disputed purchase until almost two months after the changes to the User Agreement and
`
`- 5 -
` No. 4:20-md-02951-HSG
`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
`
`DM_US 185701084-9.070286.0012
`
`

`

`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 13 of 23
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`FanProtect Guarantee were implemented. (Northcutt Supp. Decl. ¶¶ 10–12.) Mr. Koble registered
`as a StubHub user on the Android app on May 8, 2020. (Id. ¶ 10.) The registration screen that Mr.
`Koble was presented with, completed, and submitted on the app contained a disclosure directly below
`the “Sign Up” button, in light grey font with the hyperlinks offset in bold, dark grey font, that read,
`“By signing up, you agree to our user agreement and privacy notice.” (Id.) Such a disclosure is
`sufficient to bind Mr. Koble to the terms of the User Agreement. See Peter v. DoorDash, Inc., 445
`F. Supp. 3d 580, 585 (N.D. Cal. 2020) (finding bolded text sufficient to provide notice of hyperlink
`to user agreement). Mr. Koble then purchased the tickets at issue in this case on the same day.
`(Northcutt Supp. Decl. ¶ 12.) He therefore agreed to be bound by the User Agreement, including its
`arbitration provision, and the amended FanProtect Guarantee. He is bound by the arbitration
`provision and he otherwise has no valid claim because his purchase occurred after the FanProtect
`Guarantee was amended. See infra, at Sec. (IV)(b)(i).
`Mr. Glaspey also registered as a StubHub user on the Android app prior to making his
`purchase at issue in this case. (Id. ¶¶ 6–7.) The registration screen that Mr. Glaspey was presented
`with, completed, and submitted on the app contained a disclosure directly below the “Sign Up”
`button, in light grey font with the hyperlinks offset in bold, dark grey font, that read, “By signing up,
`you agree to our user agreement and privacy notice.” (Id. ¶ 6.)
`In addition to purchasing tickets on the StubHub app, seven of the Remaining Plaintiffs signed
`into StubHub on the website in close proximity to the ticket purchases at issue. In doing so, all seven
`Remaining Plaintiffs were notified of and assented to the StubHub website sign-in disclosure this
`Court has already upheld as valid and binding. (ECF No. 62 at 11.) In other words, these seven
`Plaintiffs are StubHub website users, just like the forty-eight Plaintiffs that this Court previously
`compelled to arbitration in reliance on the almost identical sign-in disclosures seen by these seven
`Plaintiffs. Calling them “app” users is a distraction because the sign-in disclosure they all saw and
`assented to on the website sign-in page binds them to the User Agreement for any subsequent sign-
`ins or purchases, whether on the app or the website. See Lee v. Ticketmaster L.L.C., 817 Fed. Appx.
`393, 394–95 (9th Cir. 2020) (finding plaintiff agreed to user agreement by signing in “roughly twenty
`times during the relevant period”).
`
`
`- 6 -
` No. 4:20-md-02951-HSG
`DEFENDANT STUBHUB, INC.’S NOTICE OF MOTION AND COMBINED MEMORANDUM ISO
`RENEWED MOTION TO COMPEL ARBITRATION AND MOTION TO DISMISS
`
`DM_US 185701084-9.070286.0012
`
`

`

`Case 4:20-md-02951-HSG Document 70 Filed 01/24/22 Page 14 of 23
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`Mr. Dahl, Mr. Mignault, and Mr. Wutz all reset their passwords using the StubHub website,
`not on the app, in close proximity to their ticket purchases. (Id. ¶¶ 4, 17, 20.) After resetting their
`passwords, all three of them were required to, and did, sign into the StubHub website. (Id.) Upon
`signing in on the StubHub website, each saw the nearly identical sign-in disclosure as the forty-eight
`Plaintiffs who were already compelled to arbitration saw. (Id.)
`Moreover, Ms. Matlock signed into her StubHub user account using the StubHub website on
`June 17, 2019, several months prior t