The remaining federal court plaintiffs took aim at Stubhub Inc.’s motion last Friday, arguing that the defendant’s third attempt to prove that mobile device users were on notice of the user agreement (UA) is wanting and that its dismissal arguments are equally unavailing. Previously, the court sent 46 of the 56 named plaintiffs to arbitration after finding that they agreed to arbitrate their claims.
The putative class action concerns a change to the e-ticket seller’s refund policy that coincided with the onset of the COVID-19 pandemic. According to the operative complaint filed in January 2021, Stubhub rolled out a new policy, whereunder it would issue ticket purchasers a 120% credit in lieu of a refund in the event of show cancellation. The plaintiffs, aggrieved ticket purchasers argue that StubHub misrepresented its policy and hid the fact that it no longer offered a money back pledge branded as its “FanProtect Guarantee.”
After November’s ruling sending plaintiffs who purchased tickets from Stubhub’s website to arbitration, but not those who purchased from its mobile application, Stubhub once again sought to compel arbitration or in the alternative, dismissal.
Now, the plaintiffs claim that Stubhub’s renewed arguments fare no better than its previous, claiming that “StubHub does not—and cannot—provide the critical evidence it needs to show that Mobile Users are presented with adequate notice of StubHub’s UA during checkout.” Its failure to proffer either the checkout or the registration screens presented in the app are telling, the plaintiffs aver. “[T]he design of the checkout process on its app is materially different from that on its website and would not withstand the Court’s scrutiny,” the plaintiffs conclude.
In opposition to dismissal, the plaintiffs claim that they have sufficiently pleaded standing. The two plaintiffs’ injury that Stubhub challenges is uncontroverted, the filing argues. The facts plainly explain that they paid several hundred and several thousand dollars, respectively, for tickets to events that never took place, and for which they never received a refund, though both were promised one under the FanProtect Guarantee.
Among other points, the plaintiffs also refute Stubhub’s assertion that they did not actually rely on the guarantee when purchasing tickets. They argue that the complaint is replete with allegations showing that they would not have purchased tickets from StubHub absent its representation that they would get a refund if an event was canceled.
The motion hearing is scheduled for May 5 before Judge Gilliam S. Haywood.
The plaintiffs are represented by Ahdoot & Wolfson PC and Wittels Mcinturff Palikovic. StubHub is represented by McDermott Will & Emery LLP.
