White v. Square, Inc.
250 Cal. Rptr. 3d 770
Cal.2019Background
- Plaintiff Robert White, a bankruptcy attorney, alleges Square’s online seller agreement forbids use by "bankruptcy attorneys," effectively excluding him from Square’s payment services.
- White visited Square’s website multiple times, reviewed its terms, proceeded to the registration page, intended to sign up and use the service for his practice, but did not click "Continue" to create an account.
- White claimed signing up would be fraudulent or lead to termination based on Square’s counsel statements and therefore declined to subscribe.
- The district court dismissed White’s Unruh Civil Rights Act claim for lack of standing, treating his knowledge of the policy as mere awareness. The Ninth Circuit found Article III standing and certified the question to the California Supreme Court.
- The California Supreme Court considered whether visiting a website with intent to use services and encountering exclusionary terms, without entering an agreement, suffices for Unruh Act standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a person who visits a business website with intent to use services but does not subscribe has standing under the Unruh Civil Rights Act | White: visiting with intent and encountering exclusionary terms is equivalent to presenting oneself at a physical business and is enough for standing | Square: White only had "mere awareness"; must have subscribed or tendered payment or have the policy actually applied to him | Held: Standing exists when plaintiff visits site with intent to use services and encounters exclusionary terms; no subscription or payment required |
| Whether mere awareness of a discriminatory policy suffices for standing | White: his repeated, direct website interaction + intent is more than mere awareness | Square: absent a transaction, plaintiff’s interest is conjectural like a bystander | Held: Mere awareness is insufficient, but an on-site encounter with intent to use is sufficient |
| Whether online interactions should be treated differently from brick-and-mortar encounters | White: websites/apps are equivalent to physical storefronts for standing purposes | Square: online business is different; Surrey supports requiring subscription | Held: Online visits with intent to use are functionally equivalent to presenting oneself at a physical establishment for standing |
| Whether prior authority (Surrey) requires tender/payment before standing | White: Surrey is wrongly decided or distinguishable; other precedent supports first-contact standing | Square: Surrey supports dismissal without subscription/payment | Held: Court disapproves Surrey to the extent inconsistent; payment/subscription not required for standing |
Key Cases Cited
- Koire v. Metro Car Wash, 40 Cal.3d 24 (1985) (Unruh Act applies to sex-based price discounts; plaintiff requested equal treatment without proof of payment)
- Angelucci v. Century Supper Club, 41 Cal.4th 160 (2007) (Unruh Act must be construed liberally; plaintiff need not demand equal treatment before suing)
- Teamsters v. United States, 431 U.S. 324 (1977) (plaintiff who refrains from applying because of an announced discriminatory policy is a victim of discrimination)
- Surrey v. TrueBeginnings, LLC, 168 Cal.App.4th 414 (2008) (Court of Appeal held website visitor who did not subscribe lacked Unruh standing; disapproved here to extent inconsistent)
- Osborne v. Yasmeh, 1 Cal.App.5th 1118 (2016) (rejected requirement that plaintiff tender payment; standing exists where person presents himself and is personally discriminated against)
- White v. Square, Inc., 891 F.3d 1174 (9th Cir. 2018) (federal appellate court found Article III standing and certified the Unruh standing question to California Supreme Court)