White v. Square, Inc.

IN THE SUPREME COURT OF CALIFORNIA ROBERT E. WHITE, Plaintiff and Appellant, v. SQUARE, INC., Defendant and Respondent. S249248 Ninth Circuit 16-17137 Northern District of California 3:15-cv-04539-JST August 12, 2019 Justice Liu authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar, Kruger, and Groban concurred. WHITE v. SQUARE, INC. S249248 Opinion of the Court by Liu, J. Here we consider a question regarding California’s Unruh Civil Rights Act (Civ. Code, § 51 et seq.) (the Act) posed by the United States Court of Appeals for the Ninth Circuit: Does a plaintiff have standing to bring a claim under the Unruh Civil Rights Act when the plaintiff visits a business’s website with the intent of using its services, encounters terms and conditions that allegedly deny the plaintiff full and equal access to its services, and then leaves the website without entering into an agreement with the service provider? (See White v. Square, Inc. (9th Cir. 2018) 891 F.3d 1174, 1175; Cal. Rules of Court, rule 8.548, (a) & (f)(5).) The answer is yes. When a plaintiff has visited a business’s website with intent to use its services and alleges that the business’s terms and conditions exclude him or her from full and equal access to its services, the plaintiff need not enter into an agreement with the business to establish standing under the Unruh Civil Rights Act. In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services. We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store. Although mere awareness of a business’s discriminatory policy 1 WHITE v. SQUARE, INC. Opinion of the Court by Liu, J. or practice is not enough for standing under the Act, entering into an agreement with the business is not required. We express no view on White’s occupational discrimination claims. I. Bankruptcy attorney Robert White sued Square, Inc. (Square) in October 2015, alleging that Square’s seller agreement discriminated against bankruptcy attorneys in violation of the Unruh Civil Rights Act. Square offers an internet service that allows individuals and merchants to “ ‘accept electronic payments without themselves directly opening up a merchant account with any Visa or MasterCard member bank.’ ” (White v. Square, Inc., supra, 891 F.3d at p. 1175.) Square does not charge its users any fee to register for its services; instead, after a user has registered, Square collects a percentage of every transaction as well as a flat fee for each transaction. Square’s terms of service state that when a user creates an account, the user must “ ‘confirm that you will not accept payments in connection with the following businesses or business activities: . . . (28) ...

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