Case 4:20-md-02951-HSG Document 90 Filed 04/06/22 Page 1 of 3
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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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`Case No. 20-md-02951-HSG
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`ORDER REGARDING MOTION TO
`COMPEL ARBITRATION
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`This Document Relates to All Cases
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`On November 22, 2021, the Court granted in part and denied in part Defendant StubHub
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`Inc.’s motion to compel arbitration. See Dkt. No. 62 (the “Arbitration Order”). The parties later
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`appeared to disagree about the scope and import of the Arbitration Order, and the Court directed
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`the parties to file simultaneous letter briefs explaining the nature of the dispute and laying out their
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`positions. See Dkt. Nos. 72, 73. Having reviewed the letter briefs, it is clear that the parties
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`disagree about which claims are compelled to arbitration and which claims remain pending before
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`this Court.
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`StubHub argues that Plaintiffs are interpreting the Arbitration Order too broadly. See Dkt.
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`No. 75. In their letter briefs, Plaintiffs assert that the Arbitration Order does not compel
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`arbitration of any of their California causes of action based on the California Supreme Court’s
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`decision in McGill v. Citibank, N.A., 2 Cal. 5th 945 (2017). See Dkt. No. 73. During the hearing
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`on this issue, however, Plaintiffs conceded that McGill does not apply to their California common
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`law causes of action. Plaintiffs’ claims for conversion, restitution, negligent misrepresentation,
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`unjust enrichment, and breach of contract are therefore compelled to arbitration as to those
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`Plaintiffs who purchased their tickets on the StubHub website.1 See Dkt. No. 36 at ¶¶ 158–191.
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`The only outstanding question, therefore, is which if any of the California statutory claims must be
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`arbitrated.
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`Plaintiffs have brought causes of action under California’s Consumer Legal Remedies Act
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`(“CLRA”), Unfair Competition Law (“UCL”), and False Advertising Law (“FAL”). See id. at
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`¶¶ 122–157. StubHub appears to argue that only the claims for public injunctive relief as to these
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`causes of action must remain before this Court, and everything else—including claims for
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`monetary damages and restitution—should be arbitrated. See Dkt. Nos. 75, 84. This precise issue
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`was not raised in the parties’ briefing on the motion to compel. For the avoidance of doubt,
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`however, the Court clarifies that it is bound by the Ninth Circuit’s opinion in Blair v. Rent-A-Ctr.,
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`Inc., 928 F.3d 819, 831–32 (9th Cir. 2019).
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`In Blair, the Ninth Circuit held that the Federal Arbitration Act does not preempt the
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`McGill rule because parties may still arbitrate requests for public injunctive relief. See id. at 824–
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`31. Because the arbitration agreement in Blair prohibited public injunctive relief in any forum,
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`however, the Court considered the agreement’s severance clause. See id. at 831–32. The clause
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`read:
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`If there is a final judicial determination that applicable law precludes
`enforcement of this Paragraph’s limitations as to a particular claim for
`relief, then that claim (and only that claim) must be severed from the
`arbitration and may be brought in court.
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`Id. at 831. Rent-A-Center argued that “claim for relief” “refer[red] only to a particular remedy,
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`not to the underlying claim,” and therefore the severance clause “carve[d] out only the potential
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`public injunctive remedy for these causes of action.” Id. In other words, the arbitrator had to
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`“adjudicate liability first.” Id. The Ninth Circuit acknowledged that “[p]arties are welcome to
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`agree to split decisionmaking between a court and an arbitrator in this manner.” Id. However,
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`1 The Court denied the motion to compel arbitration as to those Plaintiffs who purchased their
`tickets on the StubHub mobile app. See Dkt. No. 62. The Court understands that StubHub has
`filed an amended motion to compel arbitration as to these Plaintiffs. See Dkt. No. 71. And the
`Court will address these arguments in due course following the hearing on that motion.
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`Case 4:20-md-02951-HSG Document 90 Filed 04/06/22 Page 3 of 3
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`parties must do so clearly. The Ninth Circuit rejected Rent-A-Center’s reading of the severance
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`clause as unnatural. The Court explained that “[a] ‘claim for relief,’ as that term is ordinarily
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`used, is synonymous with ‘claim’ or ‘cause of action.’” Id. (citations omitted). The Ninth Circuit
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`therefore concluded that “the entire claim [must] be severed for judicial determination.” Id. at
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`832.
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`The severance clause at issue in this case is nearly identical to the one in Blair:
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`If a court decides that applicable law precludes enforcement of any of
`this paragraph’s limitations as to a particular claim for relief, then
`subject to your and StubHub’s right to appeal the court’s decision,
`that claim (and only that claim) must be severed from the arbitration
`and may be brought in court.
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`Dkt. No. 39-2, Ex. A at 15–16. As in Blair, “claim for relief” simply means “claim” or “cause of
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`action.” Accordingly, the Court concludes that the entire UCL, CLRA, and FAL claims must be
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`severed for judicial determination, and not just the request for public injunctive relief. These
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`California statutory claims are not compelled to arbitration.
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`IT IS SO ORDERED.
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`Dated:
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`4/6/2022
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`______________________________________
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`HAYWOOD S. GILLIAM, JR.
`United States District Judge
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`United States District Court
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