IN RE:STUBHUB REFUND LITIGATION

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IN RE: STUBHUB REFUND
LITIGATION
This Document Relates to All Cases
Case No. 20-md-02951-HSG
ORDER COMPELLING CLAIMS TO
ARBITRATION
The parties are familiar with the long history of this case. As relevant here, the Court
granted in part Defendant StubHub, Inc.’s motion for summary judgment. Dkt. No. 325. The
Court granted summary judgment as to Plaintiffs’ Unfair Competition Law (“UCL”) claim in its
entirety, and granted summary judgment as to Plaintiffs’ claims for injunctive relief and restitution
under the California Consumers Legal Remedies Act (“CLRA”) and False Advertising Law
(“FAL”). Id. However, the Court deferred ruling on Plaintiffs’ remaining claims for damages
under the CLRA and FAL, and asked for further briefing on the arbitrability of these claims. Id.
Having reviewed the parties’ filings, the Court COMPELS the remaining CLRA and FAL claims
to arbitration.
I. BACKGROUND
Early in this litigation Defendant moved to compel Plaintiffs’ claims to arbitration based
on an arbitration clause in the StubHub User Agreement. Dkt. No. 39. In November 2021, the
Court granted the motion in part as to some Plaintiffs and as to some claims.1 See Dkt. No. 62
1 The Court initially compelled arbitration only as to those who purchased tickets on the StubHub
website. See 2021 Order at 4–14. Defendant renewed its motion to compel arbitration as to the
mobile application Plaintiffs, Dkt. No. 71, which the Court denied, Dkt. No. 106. On appeal, the
Ninth Circuit held that five of these Plaintiffs, who had signed into StubHub’s website before
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(“2021 Order”). Plaintiffs argued—and the Court agreed—that the StubHub User Agreement
(“UA”) violated the California Supreme Court’s opinion in McGill v. Citibank N.A., 2 Cal. 5th 945
(2017). Id. at 17–21. In McGill, the California Supreme Court held that arbitration provisions are
invalid and unenforceable if they purport to waive a plaintiff’s statutory right to seek public
injunctive relief in any forum. See 2 Cal. 5th at 954–67. Here, the UA included an arbitration
provision that limited the arbitrator’s authority to award only individualized relief, and explicitly
stated that “[a]ny relief awarded cannot affect other users or the general public.” Id. at 4 (citing
Dkt. No. 39-2, Ex. A at 15–16, ¶ 22.1(A)(2)). The Court found that Plaintiffs had alleged that they
were seeking the “‘paradigmatic example’ of public injunctive relief, to preclude Defendant from
misrepresenting to the general public the protections afforded by its FanProtect™ Guarantee.” See
id. at 19. The Court recognized that “Defendant may disagree with the likelihood of such future
harm,” but held that the arbitration agreement was unenforceable as to Plaintiffs’ California
statutory causes of action—namely, the UCL, CLRA, and FAL. See id. at 17–21.
Several months later, the parties sought clarification of the scope of the Court’s 2021
Order. See Dkt. Nos. 73–75. In short, Defendant suggested that only Plaintiffs’ claims for public
injunctive relief should remain here and all other claims, including requests for restitutionary
damages under Plaintiffs’ California statutory causes of action, should be compelled to arbitration.
See Dkt. No. 75. Although the parties had not raised this particular issue in their original briefing
on the motion to compel arbitration, the Court considered whether it could carve out specific
remedies (rather than entire causes of action) from arbitration. See Dkt. No. 90 (“2022 Order”).
The Court explained, “[f]or the avoidance of doubt,” that it was bound by the Ninth Circuit’s
opinion in Blair v. Rent-A-Ctr., Inc., 928 F.3d 819, 831–32 (9th Cir. 2019). See id. Consistent
with Blair, the Court looked to the language of the UA’s severance clause. Id. The severance
clause states:
If a court decides that applicable law precludes enforcement of any of
this paragraph’s limitations as to a particular claim for relief, then
purchasing tickets on the mobile application, had agreed to arbitration. See In re StubHub Refund
Litig., 2023 WL 5092759, at *1–2 (9th Cir. Aug. 9, 2023).
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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.
See Dkt. No. 39-2, Ex. A at 15–16 (emphasis added). As in Blair, the Court found that the
reference to “claim for relief” meant a “cause of action” and not just a specific “remedy.” See
Dkt. No. 90 at 2–3. Consequently, “the Court conclude[d] that the entire UCL, CLRA, and FAL
claims must be severed for judicial determination, and not just the request for public injunctive
relief.” Id. at 3. And these three California statutory claims were not compelled to arbitration.
Plaintiffs later voluntarily dismissed with prejudice all their individual California common
law claims. See Dkt. No. 285 at 2. Thus, the only remaining claims that were not compelled to
arbitration were Plaintiffs’ three California statutory claims under the UCL, CLRA, and FAL.2
Defendant eventually moved for summary judgment as to these three claims. Dkt. No. 291. The
Court granted the motion for summary judgment in part and deferred ruling on the rest of the
motion pending supplemental briefing. See Dkt. No. 325.
Specifically, the Court found that Plaintiffs lacked Article III standing to seek public
injunctive relief. See id. at 7–12. As the Ninth Circuit explained in Davidson v. Kimberly-Clark
Corp., “a previously deceived consumer may have standing to seek an injunction against false
advertising or labeling, even though the consumer now knows or suspects that the advertising was
false at the time of the original purchase.” 889 F.3d 956, 969 (9th Cir. 2018). “In some cases, the
threat of future harm may be the consumer’s plausible allegations that she will be unable to rely on
the product’s advertising or labeling in the future, and so will not purchase the product although
she would like to.” Id. at 969–70. However, the Court held that Plaintiffs’ assertions that they
would be misled by Defendant’s advertising in future were not plausible. For example, some
Plaintiffs testified that they wanted to continue to hold StubHub to the terms of its prior refund
policy; others testified that they continued to use StubHub even after learning of its purported
deception about the FanProtect™ Guarantee; and another said that after eventually receiving a
2 All 33 Plaintiffs remaining in the case agreed to the arbitration provision in the UA. See Dkt.
No. 329 at 3. Although Plaintiffs moved for class certification in January, Dkt. No. 319, the Court
stayed briefing pending its order on the motion for summary judgment, Dkt. No. 321.
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refund from Defendant, “some of his confidence was ‘restored’ in StubHub.” See MSJ Order at
9–10. Plaintiffs also did not identify any evidence in the record that any of them actually intended
to use StubHub to purchase tickets in the future, with many expressing they were “unsure” if they
would do so. Id. at 10–11. Additionally, Defendant has since changed the plain terms of the
FanProtect™ Guarantee to allow for credits instead of just refunds for tickets to cancelled events.
Id. at 11–12. The Court agreed that there was therefore no basis for Plaintiffs to believe that
Defendant would automatically provide refunds for canceled events or that Defendant could not
modify the terms of its UA. See id. The Court ultimately granted summary judgment as to
Plaintiffs’ UCL claim in its entirety and as to Plaintiffs’ CLRA and FAL claims to the extent they
seek equitable relief.
In light of this conclusion, the Court explained that it must “decide what should happen to
Plaintiffs’ sole remaining claims for damages under the CLRA and FAL.” See id. at 12. The
Court invited further briefing and now revisits whether to compel arbitration of the remaining
CLRA and FAL claims.
II. DISCUSSION
The Court recognizes the unusual posture of this case. The Court largely granted
Defendant’s motion to compel several years ago, but three California statutory claims remained
here. However, a key premise of the Court’s orders applying McGill and severing the statutory
claims has now been undercut. That determination “was premised on the assumption that
Plaintiffs had adequately alleged standing at that early stage of the case to pursue injunctive
relief.” See MSJ Order at 13. As the Ninth Circuit has explained, “Plaintiffs may only invoke
California’s McGill rule if they have standing and seek public injunctive relief in federal court.”
McBurnie v. RAC Acceptance East, LLC, 95 F.4th 1188, 1194 (9th Cir. 2024) (citing Stover v.
Experian Holdings, Inc., 978 F.3d 1082, 1087 (9th Cir. 2020)).
As an initial matter, Plaintiffs appear to suggest that the Court is somehow precluded from
reconsidering its decision regarding whether—and to what extent—to compel Plaintiffs’ claims to
arbitration. Even assuming the Court can reconsider the application of McGill in the 2021 Order,
Plaintiffs argue that the UA itself prevents the Court from reconsidering whether to sever the
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statutory claims as it did in the 2022 Order. See Dkt. No. 330 at 4 (“No portion of the UA allows
for [the severance of the California statutory claims] to now be undone.”); Dkt. No. 331 at 3 (“The
severance is [] final as a contractual matter.”). Plaintiffs point out that the severance provision in
the UA states that “[i]f a court decides” that an arbitration provision—such as the prohibition on
public relief—is unenforceable, “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 . . . .” See Dkt. No.
39-2, Ex. A at 15–16. Because StubHub did not timely appeal, Plaintiffs suggest that both
Defendant and the Court are precluded from revisiting the 2022 Order severing the statutory
claims in their entirety.
This is nonsensical. The parties cannot contractually limit the Court’s own inherent
authority. The Court has authority to reconsider or modify its interlocutory orders if necessary.
See City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir.
2001) (“As long as a district court has jurisdiction over the case, then it possesses the inherent
procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be
sufficient.” (quotation omitted)); Civil L.R. 7-9(a) (allowing parties to file motions for
reconsideration “[b]efore the entry of a judgment adjudicating all of the claims and the rights and
liabilities of all the parties in a case . . . .”); cf. McArdle v. AT&T Mobility LLC, No. 09-CV-
01117-CW, 2017 WL 4354998, at *2 (N.D. Cal. Oct. 2, 2017), aff’d, 772 F. App’x 575 (9th Cir.
2019) (rescinding prior order compelling arbitration and vacating arbitration award four years after
order). The Court is therefore not precluded (contractually or otherwise) from reconsidering its
prior orders denying arbitration and severing the statutory claims.
More substantively, Plaintiffs urge that the Court’s arbitration analysis did not—and could
not—depend on whether Plaintiffs had standing to bring public injunctive relief. Plaintiffs
repeatedly state that the Court’s decisions were “contractual,” and based on finding a “contractual
defect” in the UA. See Dkt. No. 330 at 1–2, 5. Plaintiffs argue that because the UA contains a
prohibition against public injunctive relief, it violates the McGill rule and is unenforceable on its
face. Id. at 1–2. Any factual allegations or evidentiary shortcomings on summary judgment about
standing, they urge, are irrelevant. See, e.g., id. at 5 (“A finding on standing does not disturb a
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ruling on contract.”). But the Ninth Circuit has rejected such a sweeping application of McGill.
In Hodges v. Comcast Cable Commc’ns, LLC, for example, the plaintiff had argued that
“[a]ll that matters” when determining whether the McGill rule is implicated is “whether the
[agreement’s] language theoretically purports to waive public injunctive relief in any case.” 21
F.4th 535, 540 (9th Cir. 2021) (emphasis in original). The Ninth Circuit, however, explained that
even McGill itself looked to whether the plaintiffs in fact sought public injunctive relief. See id.
The court thus rejected the suggestion that “courts should stretch to invalidate contracts based on
hypothetical issues that are not actually presented in the parties’ dispute.” Id. at 541. Instead, and
as noted above, “Plaintiffs may only invoke California’s McGill rule if they have standing and
seek public injunctive relief in federal court.” McBurnie, 95 F.4th at 1194.
Like the arbitration agreement here, the one in McBurnie stated that the parties could not
seek, and the arbitrator could not award, “relief that would affect [defendant] account holders
other than you.” See id. at 1190. However, the plaintiff sought “public injunctions” prohibiting
the defendant from charging a $1.99 fee for payments made via telephone. See id. In remanding
in part, the Ninth Circuit noted that despite prior allegations in the complaint, the plaintiff had
admitted during her deposition that she had no evidence that she ever paid that fee. See id. at
1194. The Ninth Circuit remanded to allow the district court to address whether plaintiff had
standing to challenge the $1.99 fee. Id. Similarly, the Ninth Circuit in Stover reasoned that the
McGill rule did not preclude arbitration of the plaintiff’s California UCL claim where she had not
alleged the threat of future harm for purposes of Article III standing. Stover, 978 F.3d at 1087–88.
In response, Plaintiffs cite McGovern v. U.S. Bank N.A., No. 18-CV-1794-CAB-LL, 2020
WL 7129344, at *1 (S.D. Cal. Dec. 3, 2020). There, the district court denied a motion to compel
arbitration and subsequently denied the defendant’s motion to reconsider. Id. In doing so, the
court explicitly rejected the defendant’s argument that “to avoid arbitration based on McGill,
Plaintiff must first allege Article III standing to seek public injunctive relief.” Id. The court had
previously reasoned, and reiterated on reconsideration, that the arbitration agreement contained a
“public injunction waiver provision” that was “invalid and unenforceable” on its face. See id.
(citing Blair, 928 F.3d at 831). And because the arbitration provision also contained a “non-
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severability provision,” the court stated that “the entire arbitration provision [was] null and void,”
and it need not consider whether the plaintiff had Article III standing to seek public injunctive
relief. Id. (citing McArdle v. AT&T Mobility LLC, 772 F. App’x 575 (9th Cir. 2019)). The UA
here does not contain such a non-severability clause. But more fundamentally, McGovern appears
inconsistent with McBurnie and Hodges, to the extent it suggests that the application of McGill
can be decided in a vacuum and without consideration of the plaintiff’s standing to seek public
injunctive relief.3
Plaintiffs here also attempt to sidestep the Court’s concerns about the import of its standing
analysis by pointing out that neither the Court’s 2021 Order nor 2022 Order “depended on a
finding that Plaintiffs would obtain a public injunction.” See Dkt. No. 330 at 3. Plaintiffs urge
that the relevant analysis is “wholly independent of any assessment of Plaintiffs’ success on the
merits.” See id. “In other words,” they urge, the Court’s analysis “was not conditioned on
Plaintiffs’ obtaining public injunctive relief, it simply proceeded from their right to seek it.” See
id.; see also id. at 5 (“The Court in no way assumed Plaintiffs could ultimately obtain an
injunction.” (emphasis in original)). While Plaintiffs are correct that the invocation of McGill
does not require that Plaintiffs ultimately prevail on their request for public injunctive relief, the
Ninth Circuit has found that it requires Plaintiffs to have standing to seek such relief. Their
supplemental briefing simply does not grapple with this fundamental point: the motion to compel
arbitration was denied as to the statutory claims only insofar as Plaintiffs had standing to—and
did—seek public injunctive relief. Now it is clear from the record that this is relief that Plaintiffs
are not (and have not been) entitled to seek. They did not “lose” standing because of the Court’s
summary judgment analysis: they simply never had it. The parties do not cite, and the Court has
been unable to find, a procedurally similar case. Still, the Court must evaluate the parties’
agreement to arbitrate in light of this reality.
Plaintiffs suggest that the lengthy history of this case counsels against reconsidering
whether the CLRA and FAL claims should be compelled to arbitration. See id. at 8. The Court is
3 The Court notes that both McBurnie and Hodges were decided after McGovern, so the district
court did not have the benefit of those opinions.
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simply not persuaded. The Court has to hold the parties to their contractual agreement, consistent
with the authority discussed above. And here, on a more fulsome record, it is apparent that there
are no public injunctive relief claims that would preclude enforcement of the arbitration provision
in the UA.
III. CONCLUSION
The Court accordingly RECONSIDERS its prior orders, Dkt. Nos. 62 and 90, to the
extent they carved out the CLRA and FAL claims from arbitration; COMPELS the remaining
CLRA and FAL claims for monetary damages to arbitration; and STAYS the case pending
arbitration. The Court SETS a case management conference on September 1, 2026, at 2:00
p.m. The parties should be prepared to discuss whether the cases in this Multidistrict litigation
should now be remanded in light of the current posture. The conference will be held by Public
Zoom Webinar. All counsel, members of the public, and media may access the webinar
information at https://www.cand.uscourts.gov/hsg. All attorneys and pro se litigants appearing for
the case management conference are required to join at least 15 minutes before the hearing to
check in with the courtroom deputy and test internet, video, and audio capabilities.
IT IS SO ORDERED.
Dated:
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge
8/11/2026
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