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 GRANTING IN PART AND
DEFERRING IN PART DEFENDANT
STUBHUB, INC.'S MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. No. 291
Pending before the Court is Defendant StubHub, Inc.’s (“Defendant” or “StubHub”)
motion for summary judgment. Dkt. No. 291. The motion has been fully briefed. See Dkt. Nos.
291, 310, 311, 312, 315. The Court finds this matter appropriate for disposition without oral
argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed
below, the Court GRANTS the motion on all claims to the extent those claims seek injunctive
relief or restitution. The Court DEFERS ruling on the motion to the extent those claims seek
traditional monetary damages.
I. BACKGROUND
The parties are familiar with the facts of this case, which the Court has summarized in
prior orders. See Dkt. Nos. 62, 106. The Court summarizes the facts again here only as relevant
to the pending motion. After the COVID-19 pandemic began in March 2020, several cases were
filed against StubHub for allegedly wrongfully changing its refund policy for events affected by
the pandemic. Dkt. No. 1. Those cases were consolidated and transferred to this Court (id.), and
in January 2021, over 50 named Plaintiffs filed a consolidated amended complaint. Dkt. No. 36
(“CAC”), at ¶¶ 1, 98-111. Currently, 33 Plaintiffs remain after 23 dismissed their claims against
StubHub in their entirety. Dkt. Nos. 134, 143, 165, 166, 181, 189, 192, 199, 232, 239. All
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Plaintiffs also voluntarily dismissed with prejudice their 28 common-law claims. See Dkt. No.
285. The only claims left that were not compelled to arbitration (see Dkt. No. 90) are Plaintiffs’
three statutory California claims alleging violations of the Consumer Legal Remedies Act
(“CLRA”), Unfair Competition Law (“UCL”), and False Advertising Law (“FAL”).
This putative nationwide class action concerns Defendant StubHub’s refund policy for
events affected by the COVID-19 pandemic. Dkt. No. 36 (Consolidated Amended Class Action
Complaint (“CAC”) at ¶¶ 1, 4-14, 76-97. StubHub is an online ticket marketplace where its users
can buy and sell tickets to events. Dkt. No. 291 (StubHub’s Motion for Summary Judgment
(“MSJ”)), at 13; Dkt. No. 291-1 (Declaration of James Wright (“Wright Decl.”)) at ¶ 2. It is
undisputed that StubHub does not directly sell tickets to these events: rather, buyers purchase
event tickets from third parties on the StubHub platform. Id.; Dkt. No. 310 (Plaintiffs’ Redacted
Opposition to Motion for Summary Judgment (“Pltfs’ MSJ Opp.”)) at 14 (StubHub operates a
“secondary marketplace for the sale” of tickets, charging fees for each transaction).
Plaintiffs allege that for 14 years prior to COVID-19, StubHub had assured its users via its
FanProtect Guarantee (“FPG”) that ticket purchasers would receive full refunds for cancelled
events. Dkt. No. 310 at 8. According to StubHub, the FPG is “a creature of contract” defined
entirely by the terms in StubHub’s User Agreement. See Dkt. No. 291 at 13. The parties do not
dispute that prior to March 25, 2020, the User Agreement promised that “[i]f an event is cancelled
and not rescheduled, we will provide you with a full refund (including any fees and
shipping/handling charges).” Dkt. No. 291-3 (Declaration of William P. Donovan (“Donovan
Decl.”)), ¶ 2, Ex. 1 (StubHub’s User Agreement dated October 1, 2018)) at 68. The parties also
do not dispute that the User Agreement provided that “StubHub does not provide refunds for
postponed or rescheduled events, partial performances, or venue, date, lineup, or time changes.”
Id.
According to Plaintiffs, StubHub’s advertising history, which includes the FPG’s “logo
and an accompanying tag line” prominently displayed on StubHub’s landing page, purchase
screen, and throughout its website, along with television and internet commercials, reflect
StubHub’s “cash back refund guarantee.” Dkt. No. 310 at 8-9. Based on this advertising history,
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Plaintiffs assert that the FPG’s core guarantee is that “[y]ou will be refunded if the event is
cancelled and is not rescheduled.” Dkt. No. 310-1 (Declaration of Bradley K. King (“King
Decl.”)), ¶ 15, Ex. 9 at 6 (StubHub webpage describing that FPG guarantees refund for cancelled
but not rescheduled event) (December 2006)), 11 (same) (July 2008), 12 (same) (February 2009),
17 (same) (January 2012), 18 (same) (December 2012), 22 (same) (September 2014), 23 (same)
(January 2015), 24 (same) (April 2016), 25 (same) (May 2016), 26 (StubHub “Help center”
webpage stating that automatic refunds are issued when events are “officially cancelled”) (June
2017), 27 (same) (June 2017); see also Dkt. No. 310 at 9 (StubHub’s president’s testimony at
Congressional hearing that “StubHub’s FanProtect Guarantee is the hallmark of our business and
it is why we have earned the trust of fans around the globe”). StubHub, on the other hand, insists
that the FPG has never promised a refund in all situations, characterizing it as “an assurance that
the tickets bought and sold on StubHub will validly permit entry to an event.” Dkt. No. 291 at 13.
On February 26, 2020, just before the global pandemic began, StubHub’s President
testified before Congress that StubHub would provide “a full refund inclusive of fees” “when there
is something wrong with a ticket purchased.” Dkt. No. 310 at 9 n.5. Two weeks later, on March
11, 2020, a StubHub executive sent an internal company-wide email confirming that StubHub
users could receive a full refund for tickets to cancelled events. Dkt. No. 310-1 (Declaration of
Bradley K. King (“King Decl.”)) at ¶ 22, Ex. 16 at 3. Throughout March 2020, StubHub users
whose events were cancelled received emails assuring them that they could receive a full refund.
Dkt. No. 310-1 (King Decl.) at ¶ 22, Ex. 16 at 3. As late as March 20, 2020, StubHub’s president
told a CNBC journalist that “[a]nybody who purchased on our site at StubHub is protected by
what we call our FanProtect Guarantee,” and said that “for cancellations in particular we’re
offering customers right now two opportunities, number one a full refund [or] . . . 120% of the
original purchase value if customers want to take a credit.” Dkt. No. 310 at 10.
But like essentially everyone else in the world, StubHub did not predict the scope and
duration of the COVID-19 pandemic. On March 25, 2020, less than a week after StubHub’s
president confirmed that the FanProtect Guarantee would provide a refund at a user’s option,
StubHub changed its cancellation policy to only offer a coupon worth 120% of the original
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purchase price, and not refunds. Dkt. No. 291 at 14-15; Dkt. No. 310-1 (King Decl.) at ¶ 19, Ex.
13 (internal StubHub discussion regarding removal of refund option for buyers); id. at ¶ 20, Ex. 14
(internal StubHub email describing change to cancellation policy). The User Agreement was
revised on March 25, 2020 to provide that “[i]f an event is canceled and not rescheduled, we will
provide you with a full refund of the full amount you paid on StubHub (including any fees and
shipping/handling charges) or credit for use on a future purchase, as determined in StubHub’s sole
discretion (unless a refund is required by law).” Dkt. No. 39-2 (Exhibit A to StubHub’s Motion to
Compel Arbitration) at 70 (emphasis added). Unsurprisingly, StubHub’s policy change prompted
a negative response from many users who had bought tickets on its platform. See Dkt. No. 310 at
11 (describing numerous complaints to StubHub and StubHub’s response).
Plaintiffs acknowledge that a little over a year after the pandemic began, on May 3, 2021,
StubHub notified its users that they would receive a full refund for tickets to canceled events
purchased prior to March 25, 2020, unless those users elected to retain account credits. Dkt. No.
310 at 11-12. Plaintiffs do not dispute that StubHub then began issuing refunds to those who
previously received credits, giving those users the option to keep the credit or to receive a cash
refund. Dkt. No. 291 at 15.1 Users who did not respond automatically received a refund. Id.
Plaintiffs also acknowledge that StubHub agreed to consent judgments with multiple states that
provided for over $16 million in cash refunds to over 75,000 users. Dkt. No. 310 at 12, 12 n.28.
However, Plaintiffs assert that StubHub’s announcement and its cash refunds did not address
“many of the harms caused” by its “refusal, beginning on March 25, 2020, to honor the FPG.”
Dkt. No. 310 at 12. According to Plaintiffs, these harms include StubHub’s denial of refunds for
“indefinitely postponed events” that were not officially canceled by the promoter or venue,
StubHub’s “manipulat[ion]” of the internal classification of events, and StubHub’s continued
advertising of the FPG “without any prominent correction to alert consumers of how it materially
1 The record reflects, and Plaintiffs do not dispute, that so far, at least 23 of the remaining 33
Plaintiffs in this litigation have received a refund. Dkt. No. 291-2, Ex. A to the Declaration of
James Wright (“Wright Decl.”). Of the nine Plaintiffs who have not received a refund, all but
three had tickets to postponed or rescheduled events. Id. The remaining three Plaintiffs, whose
events were cancelled but did not receive a refund, either had outdated payment information or
opted to use the 120% credit. Id.
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changed.” Dkt. No. 310 at 12. Plaintiffs, citing a May 2021 New York State Senate investigative
report, argue that “[c]onsumers had hundreds of dollars tied up in tickets they couldn’t use, at a
time when many of them needed the money the most.” Dkt. No. 310 at 12, 12 n.31. Plaintiffs do
not dispute, however, that after May 3, 2021, StubHub agreed to provide refunds for tickets
bought prior to March 25, 2020 to events that were canceled by the promoter or venue. Dkt. No.
310 at 11-12.
In their Complaint, Plaintiffs’ Request for Relief seeks all relief available under the CLRA,
including damages, and restitution and injunctive relief under the UCL. See Dkt. No. 36 at ¶¶ 135,
148-49. Plaintiffs do not specify the exact relief sought for their FAL claim, other than alleging
that they suffered lost money or property due to StubHub’s purported FAL violations. Id. ¶ 157.
The injunctive relief requested by Plaintiffs is a “corrective advertising campaign” to rectify the
alleged ongoing harm they and the putative class face, because StubHub “has continued using the
FPG logo and advertising as if nothing has happened—the logo continues to be featured on
StubHub’s webpage, app, and advertising and is seen by each purchaser at checkout.” Dkt. No.
310 at 13. Specifically, Plaintiffs demand that StubHub “explain to the consuming public that the
terms of the FPG no longer mean money back in the case of cancellations, and that StubHub can
change the promise of the guarantee at any time, rendering it effectively useless.” Id.; see also
Dkt. No. 36, CAC ¶ 470(h)e (“[r]equiring StubHub to disseminate clear corrective advertising
effectively informing the public that the FanProtectTM Guarantee no longer means a money back
guarantee and setting forth the current terms in a clear and conspicuous manner”); id. at ¶ 470(h)f
(“[r]equiring StubHub to disseminate clear corrective advertising effectively informing the public
that the FanProtectTM Guarantee is not a guarantee at all, or is hollow and meaningless because
StubHub maintains and reserves the right to unilaterally change its terms at any time”).
II. LEGAL STANDARD
A. Motion for Summary Judgment
Summary judgment is proper when a “movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson
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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence
in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id.
But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from
the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and “may not weigh the evidence
or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997),
overruled on other grounds by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). If a court
finds that there is no genuine dispute of material fact as to only a single claim or defense or as to
part of a claim or defense, it may enter partial summary judgment. Fed. R. Civ. P. 56(a).
III. DISCUSSION
StubHub contends that it is entitled to summary judgment on all three of Plaintiffs’
remaining claims under the CLRA, UCL, and FAL because (1) ticket sales are not “goods” or
“services” actionable under the CLRA (Dkt. No. 291 at 17-19); (2) plaintiffs lack standing to
pursue equitable relief (id. at 19-26); (3) plaintiffs are not seeking public injunctive relief (id. at
26-28); (4) plaintiffs’ remaining claims are duplicative of Plaintiffs’ already-dismissed breach of
contract claim (id. at 29-31); and (5) StubHub made no false representations at the time of sale (id.
at 31-33). In the alternative, StubHub contends that summary adjudication is appropriate as to
certain Plaintiffs. Id. at 33-36. The Court agrees that StubHub is entitled to summary judgment
on Plaintiffs’ claims for equitable relief, and defers consideration of the remaining claims for now
for the reasons explained below.
A. Plaintiffs Lack Standing to Seek Public Injunctive Relief
StubHub argues that the Plaintiffs lack standing to pursue equitable relief because (1)
plaintiffs had an adequate remedy at law in the form of damages, Dkt. No. 291 at 23-26, and (2)
they impermissibly seek an injunction to remedy “purely past harm,” id. at 20-23. StubHub also
reiterates its argument that Plaintiffs do not actually seek public injunctive relief, such that McGill
does not foreclose arbitrating Plaintiffs’ remaining claims. See id. at 26-27.
As an initial matter, the Court rejects StubHub’s repeated argument that Plaintiffs do not
actually seek public injunctive relief. See id. at 26-28. The Court already rejected this argument
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in denying StubHub’s motion to compel arbitration of Plaintiffs’ California statutory claims. See
Dkt. No. 62. The injunction against false advertising that Plaintiffs seek is the paradigmatic
example of public injunctive relief as discussed in multiple California Supreme Court cases,
including McGill. See McGill v. Citibank, N.A., 2 Cal. 5th 945, 955-57 (2017) (injunction
requiring Citibank to cease continuing “to falsely advertise or conceal material information”
would constitute public injunctive relief); Cruz v. PacifiCare Health Sys., Inc., 30 Cal. 4th 303,
315-16 (2003) (an injunction under the UCL or FAL against deceptive advertising practices “is
clearly for the benefit of . . . the general public”); Broughton v. Cigna Healthplans of Cal., 21 Cal.
4th 1066, 1080 n.5 (“in the case of a CLRA injunction the public is generally benefited directly by
the elimination of deceptive practices, and the plaintiff is benefited, if at all, only by virtue of
being a member of the public”); see also Hodges v. Comcast Cable Commc’ns, LLC, 21 F.4th 535,
541-42 (9th Cir. 2021) (discussing McGill, Cruz, and Broughton). By contrast, Plaintiffs’
requested injunction prohibiting StubHub from making further material changes to its FanProtect
Guarantee is not public injunctive relief. See Dkt. No. 36, CAC at ¶¶ 470(h)a, (h)d. Hodges, 21
F.4th at 546 (“injunctive relief aimed at regulating the substantive terms of contractual
arrangements is private injunctive relief that primarily benefits those who enter into such
contracts”).
However, there is a separate question as to whether Plaintiffs have standing to seek the
public injunctive relief they request. “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); see also Stover v. Experian Holdings, Inc., 978
F.3d 1082, 1087 (9th Cir. 2020) (“[T]o seek public injunctive relief in federal court, [the plaintiff]
must also allege that she has Article III standing.”). In Stover, the Ninth Circuit assessed whether
the plaintiff, who sought public injunctive relief to halt Experian’s allegedly fraudulent marketing
practices, had Article III standing by applying the test articulated in Davidson v. Kimberly-Clark
Corp., 889 F.3d 956, 969 (9th Cir. 2018). See Stover, 978 F.3d at 1087 (“Stover’s complaint does
not allege the threat of future harm that Davidson held is required for Article III standing in a case
seeking public injunctive relief”). In Davidson, the Ninth Circuit held that “a previously deceived
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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 at 969. “Knowledge that the advertisement or label was false in the
past does not equate to knowledge that it will remain false in the future. 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. Specifically, the Ninth Circuit held that the plaintiff had established
a threat of future harm even though she now knew that the label was false at the time of purchase.
Id.
Accordingly, because under some circumstances public injunctive relief remains “available
for a consumer who learns after purchasing a product that the label is false,” see Davidson, 889
F.3d at 970, StubHub overreaches in arguing that Plaintiffs are not entitled to seek injunctive relief
because they have an adequate remedy at law. See Sonner v. Premier Nutrition Corp., 971 F.3d
834, 841 (9th Cir. 2020) (a plaintiff “must establish that she lacks an adequate remedy at law
before securing equitable restitution for past harm”). As courts in this District have articulated,
“[d]amages related to the products Plaintiff has already bought do not remedy the harm from
Defendant continuing to use misleading marketing statements on those products.” Graham v.
Central Garden & Pet Co., No. 22-CV-06507-JSC, 2023 WL 2744391, at *4 (N.D. Cal. Mar. 30,
2023); see also Warren v. Whole Foods Mkt. Cal., Inc., No. 21-CV-04577-EMC, 2022 WL
2644103, at *9 (N.D. Cal. Jul. 8, 2022) (“[R]etrospective damages are not an adequate remedy for
the prospective harm that injunctions are designed to prevent, and injunctive relief was not at issue
in Sonner because the defendant only moved to dismiss the plaintiff’s claims for restitution[.]”).
However, Plaintiffs have not explained why damages for Plaintiffs’ CLRA claim are not
an adequate remedy with respect to their request for restitution under the UCL and (presumably)
the FAL. See Dkt. No. 310 at 19-20. See In re Cal. Gasoline Spot Mkt. Antitrust Litig., No. 20-
CV-03131-JSC, 2021 WL 1176645, at *7 (N.D. Cal. Mar. 29, 2021) (plaintiffs failed to
“distinguish their request for restitution from their request for damages”). The Court agrees with
StubHub that restitutionary disgorgement is the only disgorgement available under the UCL or
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FAL, and that restitutionary disgorgement is equivalent to restitution in this context. See Sharpe
v. Puritan’s Pride, Inc., 466 F. Supp. 3d 1066, 1072 (N.D. Cal. 2020) (“[n]onrestitutionary
disgorgement is not available under the UCL [or the FAL or CLRA]”); In re Tobacco Cases II,
240 Cal. App. 4th 779, 800 (2015) (“restitutionary disgorgement focuses on the plaintiff’s loss”)
(emphasis in original); Korea Supply v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1145 (2003) (in
both individual and representative UCL actions, “disgorgement of money obtained through an
unfair business practice is an available remedy . . . only to the extent that it constitutes
restitution”). Plaintiffs therefore may not seek restitution under the UCL or FAL.
StubHub’s second argument that Plaintiffs cannot pursue equitable relief to “remedy
purely past harm” hinges on whether, under the Davidson test, Plaintiffs have made “plausible
allegations that [they] will be unable to rely on the product’s advertising or labeling in the future,
and so will not purchase the product, although [they] would like to.” 889 F.3d at 970. The Court
finds that Plaintiffs’ position on this point, in light of the record evidence, is not plausible.
Critically, Plaintiffs have not pointed to anyplace in the record where a plaintiff testified
that he or she could not rely on StubHub’s representations about its current or future services. See
Dkt. No. 310 at 17, 17 n.40. Rather, the deposition testimony cited by Plaintiffs reflects their
desire to hold StubHub to the terms of its prior refund policy. See, e.g., Dkt. No. 310 at 17 (citing
Andersen Tr. 80:4-81:12 (“I’m looking out for all the consumers who read online or
advertisements that StubHub guarantees that they will make any canceled event good and they
lied”); id. (citing Markwalder Tr. 33:19-23 (“[W]hy I’m here is because . . . their whole brand was
built upon you get a refund.”). Some of the deposition testimony attached to Plaintiffs’ opposition
directly casts doubt on Plaintiffs’ position that they are unable to rely on StubHub’s
representations moving forward. For example, at least some Plaintiffs continued to use StubHub
even after learning of StubHub’s purported deception. See Dkt. No. 310-12 at 9 (citing Matlock
Tr. 112:15-17 (“So even after filing this lawsuit, you still used StubHub? Yes.”)); id. at 10 (citing
McDaniel Tr. 91:7-18 (“You have used StubHub ticket marketplace since filing this lawsuit, right?
Yes. A few different times, right? Yes.”)); id. (citing Kruger Tr. 91:8-24 (“Would it surprise you,
sir, to know that since this complaint was filed against StubHub on January 8 of 2021, that you
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have spent approximately $8,000 on tickets through StubHub? Would it surprise me? Yeah. Not
really.”)). One plaintiff even expressed that after receiving a refund from StubHub, some of his
confidence was “restored” in StubHub. See id. (citing Kruger Tr. 91:8-24 (“Why is it, sir, that
after you sued StubHub you would continue to use StubHub and its services? I think because we
got—you issued a refund, you know, two years later, but still got it. Kind of restored some
confidence in me.”)); id. (citing Kruger Tr. 92:1-6 (“So receiving that refund, in your words,
restored some confidence such that you were willing to continue to use the StubHub platform after
the lawsuit was filed, right? Yes.”)).
Nor have Plaintiffs pointed to anyplace in the record where a plaintiff testified that he or
she definitely intended to use StubHub to purchase tickets in the future. To the contrary, at least
some plaintiffs testified that they did not know or were unsure whether they intended to buy from
StubHub again. Dkt. No. 310-12 at 10 (citing Cook Tr. 41:3-6 (“Do you intend to buy from
StubHub again? I don’t know. That’s an honest answer. I do not know.”)); id. (citing Morales
Tr. 66:15-18 (“Do you ever intend to use StubHub to make a purchase in the future again? I’m
not sure honestly.”)); id. (citing McDaniel Tr. 91:7-18 (“Do you intend to use StubHub again in
the future? I don’t know.”)); id. at 11 (citing Hudson Tr. 59:15-17 (“Do you intend to use
StubHub again? Difficult to say.”)).
This record fatally undermines Plaintiffs’ position that they have proven an actual or
imminent injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (plaintiffs’ “some
day” intentions, “without any description of concrete plans, or indeed even any specification of
when the some day will be,” did not support a finding of the “actual or imminent” injury required
for Article III standing); Key v. Qualcomm Inc., 129 F.4th 1129, 1142 (9th Cir. 2025) (an
“injunction should not be granted as punishment for past acts where it is unlikely that they will
recur”).
And Plaintiffs’ declarations in opposition to the summary judgment motion do not solve
the problem. Plaintiffs argue that the declarations “ma[ke] clear that they would use StubHub if
they could ‘gain some confidence in StubHub’s representations about its services’ under
StubHub’s FanProtect Guarantee.” Dkt. No. 310 at 18, 18 n. 48. But none of the Plaintiffs
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actually declares that he or she would use StubHub’s services if they could rely on StubHub’s
representations in the future. Instead, each identical declaration states that the plaintiff “intends to
purchase tickets . . . in the future, including potentially from StubHub,” so long as he or she “can
gain some confidence in StubHub’s representations about its services, including under what
circumstances I will be entitled to a full and timely refund under StubHub’s FanProtect
Guarantee.” Dkt. Nos. 310-43, 310-44, 310-45, 310-46, 310-47, 310-48, 310-49, 310-50, 310-51,
310-52, 310-53, 310-54, 310-55, 310-56, 310-57, 310-58, 310-59, 310-60, 310-61, 310-62, 310-
63, 310-64, 310-65, 310-66, 310-67, 310-68, 310-69, 310-70, 310-71, 310-72, 310-73, 310-74,
310-75 (emphasis added). Plaintiffs’ declarations, which do not even profess a clear intent to
purchase from StubHub, are also insufficient to establish Article III standing. See Lanovaz v.
Twinings North America, 726 F. App’x 590, 591 (9th Cir. 2018) (plaintiff failed to show that
future harm was “actual or imminent” where she stated in an interrogatory response that she would
“consider buying” defendant’s products in the future).2 “A profession of intent is simply not
enough to satisfy Article III.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992))
(cleaned up). “The threatened injury must be certainly impending to constitute injury in fact and
allegations of possible future injury are not sufficient.” Davidson, 889 F.3d at 967 (emphasis in
original); see also Sciacca v. Apple, 362 F. Supp. 3d 787, 803 (N.D. Cal. 2019) (possibility that
plaintiff could be harmed if he “potentially repaired [Apple] watch” was “insufficient allegation of
future harm”) (emphasis in original).
StubHub also explains that because the “plain terms of the operative FanProtect
Guarantee” have changed to allow StubHub to offer a credit instead of a refund for tickets to
cancelled events, “[t]here is no ability for the alleged wrong to ‘recur.’” Dkt. No. 291 at 21. The
Court agrees on this point as well. In Davidson, the plaintiff faced “the similar injury of being
unable to rely on [defendant’s] representations of its product in deciding whether or not she should
purchase the product in the future,” even though she now knew that the prior representations were
false, because she might “reasonably, but incorrectly, assume the product was improved.”
2 As an unpublished Ninth Circuit decision, Lanovaz is not precedent, but may be considered for
its persuasive value. See Fed. R. App. P. 32.1; CTA9 Rule 36-3.
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Davidson, 889 F.3d at 970-72. By contrast, in this case, while Plaintiffs also allege that the future
injury they face is uncertainty regarding Defendant’s representations about its refund policy, there
is no basis now for them to assume (reasonably or otherwise) that Defendant will automatically
provide refunds for tickets to cancelled events, or to believe that Defendant does not have
discretion to modify the user agreement. The record shows that Plaintiffs are now clearly aware of
the relevant facts. See Ramos v. EyeBuyDirect, Inc., No. 8:25-cv-00539-JVS-DFM, 2025 WL
2633103, at *12-13 (C.D. Cal. Aug. 27, 2025) (plaintiff who was now aware of challenged fee and
ability to opt-out could not be harmed again); Hall v. Marriott Int’l, Inc., 344 F.R.D. 247, 262
(S.D. Cal. 2023) (plaintiffs who now knew how to determine whether defendant charged a resort
fee could not be deceived in the same way).
Accordingly, the Court concludes that Plaintiffs lack standing to pursue public injunctive
relief and grants StubHub’s motion for summary judgment on Plaintiffs’ CLRA and FAL claims
to the extent those claims seek injunctive relief or restitution. Because the Court has concluded
that neither restitution nor injunctive relief is available to Plaintiffs under the UCL, and traditional
monetary damages are not available under the statute, the Court grants StubHub’s motion for
summary judgment on this claim in its entirety. See In re PFA Ins. Marketing Litig., 696 F. Supp.
3d 822, 836 (N.D. Cal. 2022) (remedies available under the UCL are limited to forms of equitable
relief and “do not include damages”) (citing In re First Alliance Mortg. Co., 471 F.3d 977, 996
(9th Cir. 2006)).
IV. CONCLUSION
The Court GRANTS StubHub’s Motion for Summary Judgment on Plaintiffs’ CLRA and
FAL claims to the extent these claims seek injunctive relief, and on Plaintiffs’ UCL claims in their
entirety.
This ruling requires the Court to then decide what should happen to Plaintiffs’ sole
remaining claims for damages under the CLRA and FAL.3 When initially confronted with this
3 Previously, the Court found that the parties’ arbitration agreement and class waiver was not
enforceable as to Plaintiffs’ California causes of action. Dkt. No. 62 at 20-21; Dkt. No. 90 at 1-3.
Plaintiffs then voluntarily dismissed all common-law claims, which included their California
common-law negligent misrepresentation claim. See Dkt. No. 285 at 2. Thus, the only claims left
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question in the context of StubHub’s motion to compel arbitration, the Court found that the McGill
rule precluded arbitration of the statutory claims as a whole. See Dkt. No. 90 at 3 (concluding that
“the entire UCL, CLRA, and FAL claims must be severed for judicial determination, and not just
the request for public injunctive relief”). But that ruling was premised on the assumption that
Plaintiffs had adequately alleged standing at that early stage of the case to pursue injunctive relief.
Now, the Court has found based on the developed record that Plaintiffs lack such standing as to
the public injunctive relief claim, which calls into question whether the surviving CLRA and FAL
damages claims may proceed here, as opposed to being compelled to arbitration (as they would
have been from the beginning but for the presence of the public injunctive relief claim). See
Stover, 978 F.3d at 1087 (finding that where plaintiff failed to meet the Davidson standing
requirements for seeking injunctive relief, the McGill rule “[did] not preclude arbitration of her
California UCL claim”); TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021) (plaintiffs “must
maintain their personal interest in the dispute at all stages of litigation” and must demonstrate
standing “with the manner and degree of evidence required at the successive stages of the
litigation”). The Court questions whether the rationale of McGill continues to apply now that the
public injunctive relief claim is no longer in the case.4
The Court thus DEFERS ruling on whether StubHub is entitled to summary judgment on
Plaintiffs’ CLRA and FAL claims to the extent these claims seek damages. The parties are
DIRECTED to file simultaneous briefs of no more than 8 pages to show cause why the remaining
CLRA and FAL claims for damages should or should not be compelled to arbitration by February
19, 2026. Each side may then reply in a brief of no more than 5 pages by February 26, 2026, with
no further filings allowed. The only topic the briefing may address is whether Plaintiffs’
remaining CLRA and FAL claims should now be compelled to arbitration given that public
injunctive relief may no longer be sought in this federal case. The Court will not entertain any
that were not compelled to arbitration were Plaintiffs’ three statutory California claims alleging
violations of the CLRA, UCL, and FAL. See Dkt. No. 90.
4 The Ninth Circuit did not address this Court’s denial of StubHub’s motion to compel the
statutory claims to arbitration under McGill, finding that it lacked jurisdiction because StubHub
did not timely appeal that order. Dkt. No. 227 at 1.
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request for reconsideration or other argument challenging the merits of the order granting
summary judgment as to the injunctive relief claims, which is final.
IT IS SO ORDERED.
Dated:
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge
2/5/2026
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