Case 5:17-cv-07232-BLF Document 169 Filed 03/13/20 Page 1 of 32
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`LINDA BRADLEY, et al.,
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`Plaintiffs,
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`v.
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`T-MOBILE US, INC., et al.,
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`Case No. 17-cv-07232-BLF
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`ORDER GRANTING MOTION TO
`DISMISS FOURTH AMENDED CLASS
`AND COLLECTIVE ACTION
`COMPLAINT
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`Defendants.
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`[Re: ECF 143, 165]
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`This is a case about employment discrimination in “the Cyber Age,” S. Dakota v. Wayfair,
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`Inc., 138 S. Ct. 2080, 2097 (2018). It has often been said that the Internet has wrought “far-
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`reaching systemic and structural changes in the economy.” Id. One of these changes is the ability
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`for companies like Facebook to collect enormous amounts of data about people through their
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`social media activity and online behavior more generally. These companies have harnessed that
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`information in many ways, including crafting so-called “targeted ads.” Targeted ads are
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`personalized to the user, featuring the products, services, and opportunities of greatest interest to
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`that user. In theory, both advertisers and users benefit: Advertisers can spend their marketing
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`dollars more efficiently, and users see more interesting content. In Plaintiffs’ view, however, this
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`kind of targeting can also be used in insidious ways—namely, to deny access to information to
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`certain groups of people and thereby advance discriminatory aims. Specifically, the plaintiffs in
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`this case believe that Defendants T-Mobile US, Inc. (“T-Mobile”) and Amazon.com, Inc.
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`(“Amazon”) routinely exclude older individuals from viewing the employment ads they post on
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`Facebook. In an effort to stop that practice, Plaintiffs have brought this putative class action
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`alleging violations of various federal and state laws.
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`Defendants move to dismiss the Fourth Amended Complaint (“4AC”) on multiple grounds,
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`Case 5:17-cv-07232-BLF Document 169 Filed 03/13/20 Page 2 of 32
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`including lack of Article III standing, lack of personal jurisdiction, and failure to state a claim
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`upon which relief may be granted. As set forth below, the Court holds that the 4AC does not
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`currently contain the allegations necessary to establish standing or personal jurisdiction, but that
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`Plaintiffs have adequately justified their narrow request for jurisdictional discovery. Accordingly,
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`the Court GRANTS the motion to dismiss with LEAVE TO AMEND and GRANTS the request
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`for jurisdictional discovery.
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`I. BACKGROUND
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`The following facts are drawn from the 4AC, which the Court must treat as true at the
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`pleading stage, Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011).
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`A. Defendants’ Alleged Conduct
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`The defendants in this case are T-Mobile US, Inc. (“T-Mobile”) and Amazon.com, Inc.
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`(“Amazon”). These two major U.S. companies need little introduction. T-Mobile is one of the
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`largest wireless companies in the United States”; it provides “wireless communications services
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`including voice, messaging and data, to more than 71 million customers” and, as of December
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`2016, employs “approximately 50,000 full-time and part-time employees.” 4AC ¶ 39. Amazon is
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`“one of the largest online retailers in the world.” Id. ¶ 40. Headquartered in Seattle, Washington,
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`it “employed 341,400 full-time and part-time employees as of December 31, 2016.” Id.
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`This suit concerns Defendants’ methods of recruiting prospective employees, which
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`Plaintiffs believe discriminate against older workers. In particular, both Defendants allegedly use
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`Facebook’s ad platform to advertise employment opportunities at their various stores and
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`operations. 4AC ¶¶ 39-40. According to Plaintiffs, “Facebook has emerged as one of the largest
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`venues for employers to seek applicants for employment and for workers to find job
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`opportunities.” Id. ¶ 46. As “the most popular social media platform in the world,” id. ¶ 41,
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`Facebook collects a vast amount of information about its users, id. ¶ 44. Facebook then gives its
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`advertisers “the power to use that information to determine which Facebook users will be included
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`or excluded in the population that will receive their ads.” Id. Facebook promotes such targeted
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`advertising to employers as helping them to “minimize the cost of reaching people who are
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`interested in news jobs and maximize the number of people who respond to employment ads.” Id.
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`Case 5:17-cv-07232-BLF Document 169 Filed 03/13/20 Page 3 of 32
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`¶ 45. Factors that advertisers can use to target ads include “age, gender, location, interests, and
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`behaviours.” Id.
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`Defendants are alleged to have used Facebook’s ad targeting functionality to recruit
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`younger workers and not older workers. They did this by imposing a “ceiling on the age of people
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`who will receive their job advertisements.” 4AC ¶ 82. Plaintiffs summarize the basic practice at
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`issue as follows:
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`When an employer or an employment agency creates, purchases, and
`sends a Facebook ad to make workers aware of job opportunities and
`encourage them to apply for various jobs, Facebook requires the
`employers or employment agencies to select the population of
`Facebook users who will be eligible to receive the ad, including the
`age range of the users who will receive the ad. Following Facebook’s
`encouragement to narrowly focus ad campaigns on the “right people,”
`including by targeting younger people, upon information and belief,
`Defendants have routinely focused their Facebook employment ads
`on users who are under 40-years-old (and sometimes on users who
`are under higher age thresholds). This prevents workers who are
`above the selected age threshold from receiving employment ads and
`pursuing relevant job opportunities.
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`Id. ¶ 17. Plaintiffs further allege that “[t]he default age setting for ads is 18 to 65+, which means
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`that anyone who is 18-years-old or older would receive the ad.” Id. ¶ 63. As a result, Plaintiffs
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`say, “any employer or employment agency that selects a narrower and younger age range (such as
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`ages 18 to 40) is consciously and purposefully choosing to target younger prospective applicants
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`and thereby excluding older applicants who will not receive the ad.” Id.
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`Defendants’ employment ads—and Facebook employment ads in general—are not
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`typically for individual job opportunities; rather, they “direct the Facebook user to [the
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`advertiser’s] ‘Careers’ or company Facebook pages, in addition to a page on the company’s
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`website page that has information about a range of job opportunities throughout the company.”
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`4AC ¶ 49. Thus, the prospective applicant can view “all available positions for which she or he
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`could apply and encourages prospective employees to apply for such positions.” Id.
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`Also relevant to this case is a function called “Why am I seeing this.” When a Facebook
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`user sees an ad, he or she can click on the “Why am I seeing this” function to view why he or she
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`has been selected to see that particular ad. 4AC ¶¶ 84-85. For instance, a user might see that “T-
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`Mobile wants to reach people ages 18 to 38 who live or were recently in the United States.” Id. ¶
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`Case 5:17-cv-07232-BLF Document 169 Filed 03/13/20 Page 4 of 32
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`85. Thus, the user can view the age range that the advertiser selected.
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`The 4AC included the below exemplars of two age-restricted ads and the associated “Why
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`am I seeing this” pages:
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`4AC ¶¶ 2, 92. Other exemplars are attached the 4AC as Exhibit A. ECF 140-1.
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`Plaintiffs allege that Defendants have employed age-restricted ads on Facebook to
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`advertise “jobs that were located throughout the states where these employers employ workers,
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`including jobs in this District and elsewhere in California, the District of Columbia, and Ohio.”
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`4AC ¶ 97. Specifically, as to T-Mobile, the 4AC alleges that “T-Mobile advertised jobs in 42
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`states and the District of Columbia,” id. ¶ 39; as to Amazon, the 4AC alleges that Amazon
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`advertised “for a range of positions . . . throughout the United States,” id. ¶ 40.
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`B. The Instant Suit
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`Plaintiffs contend that Defendants’ use of age-restricted employment ads is part of a
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`“pattern or practice of age discrimination in employment advertising, recruitment, and hiring.”
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`4AC ¶¶ 89, 150. Accordingly, Plaintiffs filed this putative class action, alleging two basic legal
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`theories. First, the Age Discrimination in Employment Act (“ADEA”) makes it unlawful for an
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`employer “to print or public, or cause to be printed or published, any notice or advertisement
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`relating to employment by such employer . . . indicating any preference, limitation, specification,
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`or discrimination, based on age.” 29 U.S.C. § 623(e). Plaintiffs believe that Defendants’
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`advertisements “indicate a preference” for younger workers and against older workers by (1) being
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`targeted to younger workers and excluded from older workers, and (2) informing users of the
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`targeting through the “Why am I seeing this” function. 4AC ¶¶ 12, 151; see Opp. at 18-19, 22.
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`Second, the ADEA makes it unlawful for an employer “to fail or refuse to hire or . . .
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`otherwise discriminate against any individual with respect to his compensation, terms, conditions,
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`or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). Plaintiffs
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`contend that Defendants’ age-restricted advertising constitutes disparate treatment in hiring
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`because it is disparate treatment in recruiting. See Opp. at 23. That is, employers only hire the
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`people who apply, who are the people they recruit; by favoring younger workers in recruitment,
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`Defendants necessarily favor them in hiring. Id.; see 4AC ¶¶ 166, 168.
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`Plaintiffs allege these theories under the ADEA and similar state laws. The operative 4AC
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`contains eleven counts: (1) discriminatory publication or advertising by an employer, in violation
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`of the ADEA, 29 U.S.C. § 623(e); (2) disparate treatment in recruiting and hiring, in violation of
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`the ADEA, 29 U.S.C. § 623(a); (3) discriminatory publication or advertising by an employer, in
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`violation of the California Fair Employment and Housing Act (“California FEHA”), Cal. Gov.
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`Code § 12940(d); (4) discriminatory publication or advertising, in violation of the District of
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`Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1402.11(a); (5) discriminatory
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`publication or advertising, in violation of the Ohio Fair Employment Practices Law (“OFEPL”),
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`Ohio Rev. Code § 4112.02(E)(4); (6) intentional discrimination in recruiting and hiring, in
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`Case 5:17-cv-07232-BLF Document 169 Filed 03/13/20 Page 6 of 32
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`violation of the California FEHA, Cal. Gov. Code § 12940(a); (7) intentional discrimination in
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`recruiting and hiring, in violation of the DCHRA, D.C. Code § 2-1402.11(a)(1); (8) intentional
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`discrimination in recruiting and hiring, in violation of the OFEPL, Ohio Rev. Code §§ 4112.02(A),
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`4112.14(A); (9) violation of the California Unruh Civil Rights Act, Cal. Civ. Code § 51; (10)
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`violation of the California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51.5; (11)
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`violation of the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et
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`seq. Plaintiffs seek an injunction permanently enjoining Defendants from using age-restricted
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`employment ads, as well as the other forms of relief available under the above-listed statutes. See
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`4AC ¶ 3, p. 68.
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`The Plaintiffs in this case consist of the Communications Workers of America (“CWA”),
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`four individual Named Plaintiffs, a “Plaintiff Class,” and a “Plaintiff Collective.” The CWA is
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`“an international labor union representing over 700,000 workers in a broad range of industries,
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`including telecommunications, cable, information technology, airline, manufacturing, print and
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`broadcast news media, education, public service, and healthcare.” 4AC ¶ 30. The four individual
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`Named Plaintiffs are: Linda Bradley, a 45-year-old woman living in Franklin County, Ohio, 4AC
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`¶ 31; Maurice Anscombe, a 57-year-old man living in Baltimore County, Maryland, id. ¶ 33; Lura
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`Callahan, a 67-year-old woman living in Franklin County, Ohio, id. ¶ 35; and Richard Hayne, a
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`61-year-old man living in Oakland, California, id. ¶ 37. All four Named Plaintiffs are proposed
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`representatives of a nationwide “Plaintiff Collective” of
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`All persons in the United States who from the earliest date actionable
`under the limitations applicable to the given claim until the date of
`judgment in this action (1) were 40 years old or older (2) used
`Facebook during a time in which they were searching for
`employment, and (3) were excluded from being eligible to receive an
`employment-related advertisement or notice because one or more of
`the Defendants placed an upper age limit on the population of
`Facebook users that was eligible to receive an advertisement or
`notice.
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`Id. ¶ 140.1 In addition, Haynie is the proposed representative of a smaller “Plaintiff Class” of
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`All persons who from the earliest date actionable under the limitations
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`1 The ADEA incorporates enforcement provisions of the Fair Labor Standards Act, including the
`collective action provisions of 29 U.S.C. § 216(b). See 29 U.S.C. § 621.
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`Id. ¶ 121.
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`applicable to the given claim until the date of judgment in this action
`(1) were 40 years old or older (2) used Facebook during a time in
`which they were searching for employment and resided in California,
`and (3) were excluded from being eligible to receive an employment-
`related advertisement or notice because one or more Defendants
`placed an upper age limit on the population of Facebook users that
`was eligible to receive an advertisement or notice.
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`The counts in the 4AC are brought by various combinations of these Plaintiffs.
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`Specifically, the ADEA claims (Counts 1 and 2) are brought by the Named Plaintiffs and the
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`Plaintiff Collective; the California FEHA claims (Counts 3 and 6) are brought by Haynie and the
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`Plaintiff Class; the UCL and Unruh Act claims (Counts 10 and 11) are brought by Haynie, the
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`CWA, and the Plaintiff Class; and the remaining claims under D.C. and Ohio state law (Counts 4,
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`5, 7, 8, and 9) are brought by certain Named Plaintiffs in their individual capacities.
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`Defendants now move to dismiss the 4AC on various grounds. ECF 143 (“Mot.”). This is
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`Defendants’ third motion to dismiss the operative complaint, but the first that has come before the
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`Court for a ruling. See ECF 73 (Motion to Dismiss the Third Amended Complaint (“TAC”)), ECF
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`63 (Motion to Dismiss the First Amended Complaint (“FAC”)). The motion has been fully
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`briefed, ECF 147 (“Opp.”), ECF 155 (“Reply”), and the Court conducted a hearing on January 30,
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`2020, ECF 164.
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`II. LEGAL STANDARDS
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`In the instant motion, Defendants raise three grounds for dismissing the various claims in
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`the 4AC: lack of subject matter jurisdiction, under Federal Rule of Civil Procedure 12(b)(1); lack
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`of personal jurisdiction, under Federal Rule of Civil Procedure 12(b)(2); and failure to state a
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`claim, under Federal Rule of Civil Procedure 12(b)(6). Mot. at 4, 9, 15. Below, the Court reviews
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`the relevant legal standards for each type of motion.
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`C. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
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`A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) tests whether the court has
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`subject matter jurisdiction to hear the claims alleged in the complaint. A Rule 12(b)(1) motion
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`may be either facial, where the inquiry is limited to the allegations in the complaint, or factual,
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`where the court may look beyond the complaint to consider extrinsic evidence. Wolfe v.
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`Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Here, Defendants lodge a facial attack on the
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`sufficiency of the allegations in the 4AC. See Safe Air for Everyone v. Meyer, 373 F.3d 1035,
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`1039 (9th Cir. 2004) (in a facial attack under Rule 12(b)(1), “the challenger asserts that the
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`allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.”).
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`A district court “resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6):
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`Accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the plaintiff's
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`favor, the court determines whether the allegations are sufficient as a legal matter to invoke the
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`court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). As with a Rule
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`12(b)(6) motion, however, a court is not required “to accept as true allegations that are merely
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`conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec.
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`Litig., 536 F.3d 1049, 1055 (9th Cir. 2008); see Thomas v. Mundell, 572 F.3d 756, 763 (9th Cir.
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`2009) (finding allegations “too vague” to support standing).
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`In the instant motion, Defendants contend that Plaintiffs lack Article III standing, which “is
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`a necessary component of subject matter jurisdiction.” In re Palmdale Hills Prop., LLC, 654 F.3d
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`868, 873 (9th Cir. 2011). The Supreme Court has repeatedly stated that the “irreducible
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`constitutional minimum of standing” consists of three elements. Lujan v. Defs. of Wildlife, 504
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`U.S. 555, 560 (1992). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly
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`traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
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`favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). These
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`elements are often referred to as injury in fact, causation, and redressability. See, e.g., Planned
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`Parenthood of Greater Washington & N. Idaho v. U.S. Dep’t of Health & Human Servs., 946 F.3d
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`1100, 1108 (9th Cir. 2020). Plaintiffs, as the parties invoking federal jurisdiction, bear the burden
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`of establishing the existence of Article III standing and, at the pleading stage, “must clearly allege
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`facts demonstrating each element.” Spokeo, 136 S. Ct. at 1547 (internal quotation marks and
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`citation omitted); see also Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983) (“The facts to
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`show standing must be clearly apparent on the face of the complaint.”).
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`“In a class action, this standing inquiry focuses on the class representatives.” NEI
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`Contracting & Eng’g, Inc. v. Hanson Aggregates Pac. Sw., Inc., 926 F.3d 528, 532 (9th Cir.
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`2019). Standing for the putative class “is satisfied if at least one named plaintiff meets the
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`requirements.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007). But if none
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`of the named plaintiffs purporting to represent a class can establish standing to sue, the class
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`action cannot proceed. See NEI Contracting, 926 F.3d at 532 (citing O’Shea v. Littleton, 414 U.S.
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`488, 494 (1974)).
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`Finally, the Court notes that standing, as a limit upon the power of a federal court, must be
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`established before the Court may proceed to the merits. Virginia House of Delegates v. Bethune-
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`Hill, 139 S. Ct. 1945, 1950 (2019).
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`D. Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction
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`Federal Rule of Civil Procedure 12(b)(2) authorizes a defendant to seek dismissal of an
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`action for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). “In opposing a defendant's
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`motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing
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`that jurisdiction is proper.” CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th
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`Cir. 2011). Courts may consider evidence presented in affidavits and declarations in determining
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`personal jurisdiction. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001). “Where, as here,
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`the defendant’s motion is based on written materials rather than an evidentiary hearing, the
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`plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to
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`dismiss.” Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) (internal quotation marks and
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`citation omitted). “Uncontroverted allegations in the complaint must be taken as true, and factual
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`disputes are construed in the plaintiff’s favor,” Freestream Aircraft (Bermuda) Ltd. v. Aero Law
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`Grp., 905 F.3d 597, 602 (9th Cir. 2018), but a court is not “required to accept as true allegations
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`that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences,” In re
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`Gilead Scis. Sec. Litig., 536 F.3d at 1055.
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`In general, a court may exercise personal jurisdiction “if a rule or statute authorizes it to do
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`so and the exercise of such jurisdiction comports with the constitutional requirement of due
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`process.” Myers v. Bennett Law Offices, 238 F.3d 1068, 1072 (9th Cir. 2001). “When no federal
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`statute governs personal jurisdiction, the district court applies the law of the forum state.” Id.; see
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`Fed. R. Civ. P. 4(k)(1)(A). “California’s long-arm statute allows the exercise of personal
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`jurisdiction to the full extent permissible under the U.S. Constitution.” Daimler AG v. Bauman,
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`571 U.S. 117, 125 (2014) (citing Cal. Civ. Proc. Code Ann. § 410.10). Constitutional due process,
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`in turn, requires that a defendant “have certain minimum contacts” with the forum state “such that
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`the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”
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`Freestream Aircraft, 905 F.3d at 602 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
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`(1945)).
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`“The strength of contacts required depends on which of the two categories of personal
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`jurisdiction a litigant invokes: specific jurisdiction or general jurisdiction.” Ranza, 793 F.3d at
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`1068 (citing Daimler AG, 571 U.S. at 127). General jurisdiction exists when the defendant’s
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`contacts “are so continuous and systematic as to render [it] essentially at home in the forum State.”
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`Daimler AG, 571 U.S. at 127 (internal quotation marks omitted). Where a defendant is subject to
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`general jurisdiction, it may be sued “on any and all claims,” id. at 137, including claims “arising
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`from dealings entirely distinct” from its forum-related activities, id. at 127 (internal quotation
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`marks omitted). By contrast, specific jurisdiction is proper when the defendant’s contacts with the
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`forum state may be more limited but the plaintiff’s claims “arise out of or relate to” those contacts.
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`Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773,
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`1786 (2017). The Court discusses the requirements for specific jurisdiction in greater detail
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`below. See Part III.B.
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`E. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
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`Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a
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`short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint
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`that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure
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`12(b)(6). In other words, “[a] motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
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`for failure to state a claim upon which relief can be granted ‘tests the legal sufficiency of a
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`claim.’” Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting
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`Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). To survive a Rule 12(b)(6) motion, a
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`complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell
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`Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
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`plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The
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`plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
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`possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted).
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`In evaluating the complaint, the court must “accept factual allegations in the complaint as
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`true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v.
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`St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). At the same time, a court
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`need not accept as true “allegations that contradict matters properly subject to judicial notice” or
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`“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
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`inferences.” In re Gilead, 536 F.3d at 1055 (internal quotation marks and citations omitted).
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`III. DISCUSSION
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`Again, Defendants move to dismiss the 4AC on three grounds: lack of subject matter
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`jurisdiction, under Federal Rule of Civil Procedure 12(b)(1); lack of personal jurisdiction, under
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`Federal Rule of Civil Procedure 12(b)(2); and failure to state a claim, under Federal Rule of Civil
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`Procedure 12(b)(6). The Court begins, as it must, with Defendants’ jurisdictional arguments under
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`Rules 12(b)(1) and 12(b)(2). Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999)
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`(“[J]urisdiction generally must precede merits in dispositional order.”). Finding them to be
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`meritorious, the Court must dismiss the 4AC without ruling on Defendants’ Rule 12(b)(6) motion.
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`However, because the Court grants leave to amend the 4AC, the Court also provides brief
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`guidance as to the substantive elements of Plaintiffs’ causes of actions.
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`A. Motion to Dismiss for Lack of Standing
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`The Court begins with Defendants’ motion to dismiss the 4AC for lack of standing. As
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`noted above, Article III standing requires injury in fact, causation, and redressability. Defendants
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`first argue that the individual named plaintiffs have failed to meet their burden of pleading these
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`elements, which precludes standing for the putative Plaintiff Class and Plaintiff Collective.
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`Defendants also raise several separate objections to CWA’s associational standing.
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`The Court separately addresses the parties’ arguments as to the individual named plaintiffs
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`and their arguments regarding CWA.
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`Case 5:17-cv-07232-BLF Document 169 Filed 03/13/20 Page 12 of 32
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`i.
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`Individual Named Plaintiffs
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`To briefly review, there are four individual named plaintiffs in this case: Linda Bradley,
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`Maurice Anscombe, Lura Callahan, and Richard Haynie (collectively, the “Named Plaintiffs”).
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`Plaintiffs say they have suffered various injuries as a result of Defendants’ allegedly illegal
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`conduct, including: informational injury; the denial of jobs, and the lost wages incident thereto;
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`the denial of the opportunity to apply for jobs; and stigmatic injury. The Court holds that the
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`denial of the opportunity to apply for jobs, if properly alleged, would confer standing upon the
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`Named Plaintiffs. Nevertheless, the Court must grant the motion to dismiss because the
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`allegations in the 4AC are too vague and conclusory to establish that the Named Plaintiffs—rather
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`than unidentified members of the Plaintiff Class—personally experienced the complained-of
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`injuries.
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`a. Standing, In General
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`The Supreme Court has written at length about Article III’s requirements of injury in fact,
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`causation, and redressability. An injury in fact is “an invasion of a legally protected interest” that
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`is (1) “concrete,” (2) “particularized,” and (3) “actual or imminent, not conjectural or
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`hypothetical.” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S., at 560). First, a “concrete”
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`injury is one that “actually exist[s]”; that is, it is “real” and not “abstract.” Id. Although both
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`tangible and intangible injuries may be concrete, id., the courts have sometimes struggled with
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`identifying when intangible harms are sufficiently concrete. Fortunately, that issue is not
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`presented here. Second, “[f]or an injury to be ‘particularized,’ it must affect the plaintiff in a
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`personal and individual way,” id.; the plaintiff must have a “direct stake in the controversy.”
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`United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687
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`(1973). It is pursuant to this principle that the Supreme Court has rejected suits by litigants
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`asserting “generalized grievances about the conduct of government,” Hein v. Freedom From
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`Religion Found., Inc., 551 U.S. 587, 612 (2007), which are “undifferentiated and common to all
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`members of the public.” Lujan, 504 U.S. at 575; see also Summers v. Earth Island Inst., 555 U.S.
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`488, 494 (2009) (“[G]eneralized harm to the forest or the environment will not alone support
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`standing.”). Third, the requirement that an injury be “actual or imminent” “ensure[s] that the
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`alleged injury is not too speculative for Article III purposes—that the injury is certainly
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`impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).
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`There must, moreover, be a sufficient “causal connection between the injury and the
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`conduct complained of.” United States v. Hays, 515 U.S. 737, 743 (1995). Standing theories that
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`depend on a “speculative chain of possibilities”—such as those that turn on “the decisions of
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`independent actors”—lack the necessary causal connection. Clapper, 568 U.S. at 414; see also
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`Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 447 (9th Cir. 1994) (“[W]hen standing
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`hinges on choices made by a third party, plaintiff must “adduce facts showing that those choices
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`have been or will be made in such manner as to produce causation and permit redressability of
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`injury.”) (quoting Lujan, 504 U.S. at 562). This causation requirement is closely linked to