Robert E. White, an individual, and all others similarly situated, Plaintiff-Appellant,
v.
Square, Inc., a Delaware corporation, Defendant-Appellee.
D.C.
No. 3:15-cv-04539-JST
William McGrane, McGrane PC, San Francisco, California; Myron
Moskovitz, Moskovitz Appellate Team, Piedmont, California;
for Plaintiff-Appellant.
Colleen Bal and Joshua A. Baskin, Wilson Sonsini Goodrich
& Rosati P.C., San Francisco, California, for
Defendant-Appellee.
Before: Richard A. Paez and Sandra S. Ikuta, Circuit Judges,
and Eric N. Vitaliano, [*] District Judge.
ORDER
CERTIFYING QUESTIONS TO THE CALIFORNIA SUPREME COURT
SUMMARY[**]
Certified
Question to California Supreme Court
The
panel certified the following questions of state law to the
Supreme Court of California:
Does a plaintiff suffer discriminatory conduct, and thus have
statutory standing to bring a claim under the Unruh Act, when
the plaintiff visits a business's website with the intent
of using its services, encounters terms and conditions that
deny the plaintiff full and equal access to its services, and
then departs without entering into an agreement with the
service provider? Alternatively, does the plaintiff have to
engage in some further interaction with the business and its
website before the plaintiff will be deemed to have been
denied full and equal treatment by the business?
ORDER
We ask
the California Supreme Court to resolve an important open
question of state law. To have statutory standing under the
Unruh Act, a plaintiff must suffer discriminatory conduct. We
need guidance, however, in applying the rules for statutory
standing in the internet context, in order to determine
whether a plaintiff has standing to sue an internet-based
service provider after the plaintiff visits the
business's website but refuses to accept terms of service
that deny the plaintiff full and equal access. The California
Supreme Court's guidance is especially necessary in light
of current case law, which is divided on the question whether
plaintiffs who present themselves to a business with an
intent to use its services and encounter an exclusionary
policy must nevertheless patronize the business in order to
satisfy statutory standing. Accordingly, we certify the
following questions:
Does a plaintiff suffer discriminatory conduct, and thus have
statutory standing to bring a claim under the Unruh Act, when
the plaintiff visits a business's website with the intent
of using its services, encounters terms and conditions that
deny the plaintiff full and equal access to its services, and
then departs without entering into an agreement with the
service provider? Alternatively, does the plaintiff have to
engage in some further interaction with the business and its
website before the plaintiff will be deemed to have been
denied full and equal treatment by the business?
Our
phrasing of the questions should not restrict the Court's
consideration of the issues involved. The Court may rephrase
the questions as it sees fit in order to address the
contentions of the parties. If the Court agrees to decide
these questions, we agree to accept its decision. We
recognize that the Court has a substantial caseload, and we
submit these questions only because of their significance to
claims brought under the Unruh Act.
I
Square,
Inc. provides an internet-based service that allows
individuals or merchants to "accept electronic payments
without themselves directly opening up a merchant account
with any Visa or MasterCard member bank." Square's
seller agreement states that "[b]y creating a Square
Account, you . . . confirm that you will not accept payments
in connection with the following businesses or business
activities: . . . (28) bankruptcy attorneys or collection
agencies engaged in the collection of
debt."[1] Square does not charge a subscription fee
or admission fee, but charges a specified percentage of each
transaction plus a ...