Robert White v. Square, Inc.
891 F.3d 1174
9th Cir.2018Background
- Plaintiff Robert White, a bankruptcy attorney, visited Square, Inc.’s website intending to use its payment service for his bankruptcy practice and reviewed Square’s seller agreement, which forbids processing payments for bankruptcy attorneys.
- White refused to click “Continue” and accept the seller agreement terms and did not create an account or transact with Square; he then sued under California’s Unruh Act alleging occupational discrimination.
- The district court dismissed White’s amended complaint for lack of statutory standing under the Unruh Act, relying on Surrey v. TrueBeginnings; White appealed.
- The Ninth Circuit held White had Article III standing (Spokeo standard satisfied) but found California law unclear on whether encountering exclusionary website terms without transacting is enough for Unruh Act statutory standing.
- Because state appellate courts are split (Surrey adopting a payment/subscription requirement; Reycraft and Osborne recognizing standing where the plaintiff presented themselves and was deterred or asked to pay a discriminatory fee), the Ninth Circuit certified the controlling question to the California Supreme Court and stayed proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a person who visits a website intending to use services, encounters exclusionary terms, and leaves without agreeing or paying has statutory standing under the Unruh Act | White: visiting the site and encountering an exclusionary seller agreement constitutes being denied "full and equal" treatment; actual enrollment or payment not required | Square: mere awareness without enrolling or paying means the policy was never "applied"; Surrey requires tender/enrollment to have standing | Ninth Circuit: Federal (Article III) standing satisfied; state-law statutory standing unclear—case certified to California Supreme Court for resolution |
Key Cases Cited
- Angelucci v. Century Supper Club, 41 Cal.4th 160 (Cal. 2007) (Unruh Act requires plaintiff actually suffer discriminatory conduct; paying a discriminatory fee suffices for standing)
- Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721 (Cal. 1982) (Unruh Act protections apply broadly and may cover occupational exclusions)
- Surrey v. TrueBeginnings, 168 Cal.App.4th 414 (Cal. Ct. App. 2008) (held plaintiff who discovered a website’s discount policy but did not subscribe lacked Unruh Act standing)
- Reycraft v. Lee, 177 Cal.App.4th 1211 (Cal. Ct. App. 2009) (standing exists where plaintiff presented to a place with intent to use services and was actually denied equal access)
- Osborne v. Yasmeh, 1 Cal.App.5th 1118 (Cal. Ct. App. 2016) (tendering payment not required where disabled plaintiffs personally experienced discriminatory treatment; being asked to pay a discriminatory fee sufficed)
- Heckler v. Mathews, 465 U.S. 728 (U.S. 1984) (discrimination can cause concrete non-economic injuries)
- Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (U.S. 2016) (Article III requires concrete and particularized injury)
- Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) (state law can create interests supporting federal standing)