676 S.W.3d 193
Tex. App.2023Background
- In Sept. 2021 Ball bought two Broadway tickets on StubHub, arrived to find duplicate/occupied seats, and sued StubHub under the Texas DTPA.
- StubHub moved to compel arbitration relying on an arbitration clause that appears in its 2021 User Agreement; Ball had created a StubHub account in Nov. 2012.
- StubHub submitted unsworn declarations by Amy Monroe describing the account‑creation and notice process and stating Ball registered in 2012, continued using the account through 2019–2022, and never opted out.
- The 2012 User Agreement in the record lacked an arbitration clause; the 2021 version contained the arbitration provision StubHub seeks to enforce.
- Monroe’s declarations did not include screenshots of the 2012 registration flow or copies of email notices of amendments; Ball did not submit contrary evidence but argued Monroe’s proof was too general to show he had notice or assented.
- The trial court denied the motion to compel arbitration; the court of appeals affirmed, concluding StubHub failed to conclusively prove assent to the arbitration agreement.
Issues
| Issue | Ball's Argument | StubHub's Argument | Held |
|---|---|---|---|
| Whether StubHub conclusively proved Ball assented to the User Agreement at account creation (formation) | Monroe’s declaration is too general; no proof Ball received or clicked an explicit assent; no meeting of the minds | Account creation required acceptance of the User Agreement (clicking to agree), Ball registered in 2012 and used the account thereafter, so he assented | Court: Monroe’s statements were not clear, direct, and positive that Ball affirmatively clicked to accept in 2012; evidence insufficient to establish formation |
| Whether StubHub proved Ball assented to the 2021 amended User Agreement containing the arbitration clause | StubHub provided no copies of amendment emails or evidence Ball agreed to 2012 terms, so change‑of‑terms notice failed | StubHub posted revisions and emailed registered users; continued use without opt‑out indicates assent | Court: StubHub failed to show notice or assent to the 2021 amendments; change‑of‑terms cannot be enforced when initial assent to the 2012 agreement is not conclusively established |
Key Cases Cited
- J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) (presumption favoring arbitration arises only after a valid arbitration agreement is proved)
- In re Rubiola, 334 S.W.3d 220 (Tex. 2011) (party seeking arbitration must show existence and scope of a valid arbitration agreement)
- In re Weekley Homes, L.P., 180 S.W.3d 127 (Tex. 2005) (arbitration motions resolved via summary‑proceeding standard)
- Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992) (clear, direct, positive affidavits are accepted when uncontroverted)
- Meyer v. Uber Tech., Inc., 868 F.3d 66 (2d Cir. 2017) (web interface design affects conspicuousness and notice in browse/sign‑in agreements)
- Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 (S.D.N.Y. 2012) (conspicuous hyperlink and adjacent language can support enforceability of online terms)
- Fieldtech Avionics & Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813 (Tex. App.—Fort Worth 2008) (recognizing enforceability of clickwrap agreements)