NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: STUBHUB REFUND LITIGATION,

______________________________

JASON ALCARAZ; et al.,

Plaintiffs-Appellees,

STUBHUB, INC.,

Defendant-Appellant,

and

LAST MINUTE TRANSACTION, INC.,

Defendant.

No. 22-15879

D.C. No. 4:20-md-02951-HSG

MEMORANDUM

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted July 19, 2023

San Francisco, California

Before: SILER,

WARDLAW, and M. SMITH, Circuit Judges.

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The Honorable Eugene E. Siler, United States Circuit Judge for the

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

AUG 9 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Plaintiff consumers, a class of fifty-six named individuals, sued StubHub,

Inc., for alleged violation of its “FanProtect

Guarantee” by failing to provide its

consumers with a full refund instead of a credit for tickets purchased for events

canceled due to the COVID-19 pandemic. The district court compelled a subset of

forty-eight Plaintiffs (those who purchased tickets from StubHub’s website) to

arbitration; however, the district court denied the motion to compel as to eight

Plaintiffs (those who purchased tickets on StubHub’s mobile application) (“Mobile

Application Plaintiffs”).

StubHub appeals the district court’s May 13, 2022 Order

denying StubHub’s renewed motion to compel arbitration as to the Mobile

Application Plaintiffs. We have jurisdiction under 9 U.S.C. § 16(a)(1)(C), and we

affirm in part and reverse and remand in part.

1. We lack jurisdiction to address the district court’s denial of StubHub’s

motion to compel Plaintiffs’ California statutory claims to arbitration under McGill

v. Citibank, N.A., 2 Cal. 5th 945 (2017). The district court decided this issue in a

November 22, 2021 Order, and clarified its decision in an April 6, 2022 Order.

StubHub failed to appeal these orders. StubHub did timely appeal a third order—

the May 2022 Order—which does not address or implicate the California statutory

The claims of one Mobile Application Plaintiff—William Mignault—have been

dismissed by agreement of the parties. Therefore, there remain only seven Mobile

Application Plaintiffs.

issues (except in a footnote to clarify that the issue was already addressed in a

previous order). See Johnson v. Dir., Off. of Workers’ Comp. Programs, 183 F.3d

1169, 1171 (9th Cir. 1999) (noting that we cannot “review an issue not raised [by

the decision] below unless necessary to prevent manifest injustice” (citation

omitted)).

2. The district court erred in part by finding that the Mobile Application

Plaintiffs did not assent to the arbitration clause in the User Agreement.

StubHub

alleges that the Mobile Application Plaintiffs assented to the User Agreement in

one of two ways: (1) by signing into their accounts via StubHub’s website; or (2)

by registering via StubHub’s mobile application.

The district court erred in denying the renewed motion to compel as to five

Mobile Application Plaintiffs— David Dahl, Amanda Matlock, Reginald

McDaniel, Jennifer Williams, and Benjamin Wutz—who signed into StubHub’s

website before purchasing tickets.

StubHub’s website sign-in screen that these Plaintiffs viewed provided

sufficient notice of their agreement to arbitrate any disputes. The sign-in screen

contains hyperlinks in offset, bolded, underlined, and bright blue typeface, in close

Contrary to Plaintiffs’ contention, we have jurisdiction to consider this issue, as it

was addressed in the district court’s May 13, 2022 Order, which StubHub timely

appealed. 28 U.S.C. § 2107(a); see also Newirth by & through Newirth v. Aegis

Senior Cmtys., LLC, 931 F.3d 935, 939 (9th Cir. 2019), abrogated on other

grounds, Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1713–14 (2022).

proximity to the sign-in button. In fact, the website sign-in screen is nearly

identical to the website checkout screen that the district court found was sufficient

to compel the other forty-eight Plaintiffs to arbitration. See Appendix A.

The fact that these Plaintiffs signed into StubHub’s website days, or even

months, prior to purchasing their tickets does not change our conclusion.

have held that once an individual registers for an online service or account and

assents to its broad terms, she is bound by those terms if she accesses the website

at a later date, unless the terms or conditions have changed. See Stover v. Experian

Holdings, Inc., 978 F.3d 1082, 1086 (9th Cir. 2020) (holding that a user of

Experian’s credit monitoring service, who assented to Experian’s 2014 terms of

use, was bound by the 2014 terms when she accessed Experian’s website in 2018).

3. The district court did not err in denying the motion to compel arbitration

as to the Mobile Application Plaintiffs— Glaspey and Paul Koble—who registered

on the Android application prior to purchasing tickets. To examine whether textual

notice is sufficiently conspicuous to put an individual on notice under California

law, courts evaluate factors including: (1) the size of the text; (2) the color of the

text compared to the background; (3) the location of the text and its proximity to

The district court did not err in denying StubHub’s motion to compel arbitration

as to Plaintiff Ernie Glaspey who signed into the website a few weeks after his

ticket purchase. See Knuston v. Sirius XM Radio Inc., 771 F.3d 559, 565–66 (9th

Cir. 2014) (noting that well-settled principles of contract law require mutual assent

at the time the contract is entered).

where the user clicks to consent; (4) the obviousness of an associated hyperlink;

and (5) other elements on the screen which clutter or obscure the textual notice.

Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 473, reh’g denied (Jan. 18,

2022), review denied (Apr. 13, 2022).

Applying these factors here leads to the conclusion that the mobile

registration screen Koble and Glaspey saw lacked several important features that

would adequately provide notice of an arbitration clause. See Appendix A. The

color of the relevant text is gray and does not stand out against the white

background; it is not obvious to the user that the text is hyperlinked; and the bright

pink sign-up button obscures the muted colors of the relevant text providing notice.

See, e.g., Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 854, 56 (9th Cir.

2022) (holding that terms were inconspicuous where, inter alia, text in “gray font

. . . rather than in blue”). While the hyperlinked text is bolded, it is not underlined,

which generally indicates that the text is hyperlinked. This is distinct from the text

of the website checkout and sign-in pages, in which the term “User Agreement” is

underlined and in bright blue font to emphasize that it is hyperlinked. See Nguyen

v. Barnes & Noble Inc., 763 F.3d 1171, 1178 (9th Cir. 2014); Oberstein v. Live

Nation Ent., Inc., 60 F.4th 505, 516 (9th Cir. 2023) (“[C]rucially, the ‘Terms of

Use’ hyperlink is conspicuously distinguished from the surrounding text in bright

blue font.”). Because the User Agreement on the Android registration screen

provided insufficient notice, the district court did not err in denying StubHub’s

motion to compel arbitration as to Koble’s and Glaspey’s claims.

Accordingly, we affirm in part, and reverse and remand in part. The parties

shall bear their own costs.

AFFIRMED IN PART. REVERSED AND REMANDED IN PART.

APPENDIX A

Website Sign-In Screen Website Checkout Screen

Mobile Application Registration Screen