Case 3:21-cv-01833-BTM-MDD Document 14 Filed 04/06/22 PageID.103 Page 1 of 33
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`Greg Adler, SBN 234142
`Greg Adler P.C.
`39899 Balentine Drive, Suite 200
`Newark, CA 94560
`Phone: (844) 504-6587
`Fax: (469) 807-8878
`Email: greg@adler.law
`
`Attorney for Plaintiff Jonathan Correll and the Proposed Classes
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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`
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`Case No. 3:21-cv-01833-BTM-MDD
`
`PLAINTIFF’S OPPOSITION TO
`DEFENDANT’S MOTION TO
`DISMISS COMPLAINT
`PURSUANT TO FEDERAL RULES
`OF CIVIL PROCEDURE 12(b)(1)
`and 12(b)(6).
`
`Hearing Date: June 3, 2022
`Time: 11:00 a.m.
`Judge: Hon. Barry Ted Moskowitz
`Courtroom: 15B
`
`
`JONATHAN CORRELL, on behalf of
`himself and all others similarly situated,
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`v.
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`AMAZON.COM, INC., and DOES 1-10,
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` Plaintiff,
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` Defendant.
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`PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
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`TABLE OF CONTENTS
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`Page
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`I. INTRODUCTION AND SUMMARY OF OPPOSITION………………………...1
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`II. LEGAL STANDARDS…………………………………………………………….5
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`A. Legal Standard For A FRCP 12(b)(1) Motion To Dismiss……………………..5
`B. Legal Standard For A FRCP 12(b)(6) Motion To Dismiss……………………..6
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`III. FACTUAL SUMMARY………………………………………………………….6
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`IV. ARGUMENT……………………………………………………………………..7
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`A. PLAINTIFF HAS STANDING UNDER ARTICLE III OF THE U.S.
`CONSTITUTION BECAUSE PLAINTIFF HAS INDEED SUFFERED
`AN INJURY IN FACT, CONSISTENT WITH THE NINTH CIRCUIT’S
`ON-POINT RULING IN WHITE I ABOUT A SIMILARLY-SITUATED
`PLAINTIFF ALLEGING AN UNRUH ACT CLAIM AGAINST AN
`ONLINE BUSINESS AFTER VISITING THE WEBSITE AND
`ENCOUNTERING DISCRIMINATORY TERMS OR CONDITIONS,
`THEN LEAVING THE WEBSITE WITHOUT SUBSCRIBING TO
`THE BUSINESS’S SERVICES………………………………………………7
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`B. PLAINTIFF HAS STANDING TO SUE UNDER CALIFORNIA’S
`UNRUH CIVIL RIGHTS ACT AND CIVIL CODE SECTION 51.5
`PURSUANT TO THE CALIFORNIA SUPREME COURT’S ON-POINT
`RULING IN WHITE II, BECAUSE THE COMPLAINT ALLEGES
`PLAINTIFF VISITED AMAZON’S WEBSITE WITH THE INTENT
`TO USE AMAZON’S SERVICES AND ENCOUNTERED TERMS OR
`CONDITIONS THAT EXCLUDED PLAINTIFF FROM FULL AND
`EQUAL ACCESS TO AMAZON’S SERVICES…………………………...10
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`C. PLAINTIFF STATED A CLAIM UNDER THE UNRUH ACT AND
`CIVIL CODE SECTION 51.5 BECAUSE:
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`(1) MR. CORRELL HAS ALLEGED FACTS THAT AMAZON’S
`DISCRIMINATORY SERVICES ARE ARBITRARY,
`UNREASONABLE, AND INVIDIOUS………………………...………12
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`PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
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`Case 3:21-cv-01833-BTM-MDD Document 14 Filed 04/06/22 PageID.105 Page 3 of 33
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`(2) THERE ARE NO STATE OR FEDERAL STATUTORY OR
`LEGISLATIVE ENACTMENTS EVIDENCING A STRONG
`PUBLIC POLICY IN FAVOR OF A BUSINESS
`CATEGORICALLY DENYING ITS SERVICES TO AN
`INDIVIDUAL OR ANOTHER BUSINESS BASED ON THE
`INDIVIDUAL OR OTHER BUSINESS’S OWNER’S RACE,
`SEX, OR SEXUAL ORIENTATION……………………………………14
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`(3) THERE ARE MANY STATUTORY AND LEGISLATIVE
`ENACTMENTS EVIDENCING A STRONG PUBLIC POLICY
`AGAINST DISCRIMINATING BASED ON RACE, SEX, AND
`SEXUAL ORIENTATION, AS WELL A WEALTH OF FEDERAL
`AND CALIFORNIA CASE LAW REINFORCING THE
`COMPELLING PUBLIC POLICIES EMBODIED IN
`ANTIDISCRIMINATION LAWS……………………………………….18
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`(4) THERE IS NO EVIDENCE IN THE COMPLAINT, OR ANY THAT
`HAS BEEN JUDICIALLY NOTICED, THAT AMAZON’S RACE,
`SEX, AND SEXUAL ORIENTATION-BASED SERVICES
`“FOSTER” DIVERSITY; ON THE CONTRARY, THESE
`EXCLUSIVE SERVICES ACTUALLY DISCOURAGE AND
`HINDER DIVERSITY BY DISCRIMINATING AGAINST MANY
`OF THE GROUPS AMAZON OSTENSIBLY FAVORS………………24
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`V. CONCLUSION…………………………………………………………………...25
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`PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
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`TABLE OF AUTHORITIES
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`CASES
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`Page(s)
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`Adarand Constructors, Inc. v. Pena
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` 515 U.S. 200 (1995) ………………………………………………………….19
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`Ashcroft v. Iqbal
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`556 U.S. 662 (2009) ...………………………………………………………….6
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`Bell Atl. Corp. v. Twombly
`550 U.S. 544 (2007) ………………………………………………………...….6
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`Brown v. Board of Education
`347 U.S. 483 (1954) ……………………………………………………………8
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`Burks v. Poppy Const. Co.
`57 Cal. 2d 463 (1962) …………………………………………………………20
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`Candelore v. Tinder, Inc.
`19 Cal. App. 5th 1138 (2019) ……………………………………..13, 15, 16, 21
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`Cantrell v. City of Long Beach
`241 F.3d 674 (9th Cir. 2001) …………………………………………………...9
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`City of Richmond v. J.A. Croson Co.
`488 U.S. 469 (1989) ………………………………….…………………….....21
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`Crest et al v. Padilla
`Los Angeles Sup. Ct. Case No. 20 STCV 37513 (April 1, 2022) …….........2, 21
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`Connerly v. State Personnel Board
`92 Cal. App. 4th 16 (2001) ……………………………………………..2, 19, 22
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`E.E.O.C. v. Miss. College
`626 F.2d 477 (5th Cir. 1980) ………………………………………………….20
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`Gatto v. County of Sonoma
`98 Cal. App. 4th 744 (2002) ……...…………………………………………….1
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`PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
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`Heckler v. Mathews
`465 U.S. 728 (1984) ………………………………………………………..9, 14
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`Hi-Voltage Wire Works, Inc. v. City of San Jose
`24 Cal. 4th 537 (2000) …………………………………………………….19, 20
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`In re Cox
`3 Cal. 3d 205 (1970) …………………………………………….…………….13
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`Javorsky v. Western Athletic Clubs, Inc.
`195 Cal. App. 4th 1386 (2015) …………………………………..………..13, 14
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`Koire v. Metro Car Wash
`40 Cal. 3d 24 (1985) ……………………………………………………2, 16, 21
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`Lujan v. Defs. of Wildlife
`504 U.S. 555 (1992) ……………………………………………………………8
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`Marina Point Ltd. v. Wolfson
`30 Cal. 3d 721 (1982) …………………………………………..…………16, 21
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`Mendiondo v. Centinela Hosp. Med. Ctr.
`521 F.3d 1097 (9th Cir. 2008) ………………………………………………… 6
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`People v. Williams
`75 Cal. App. 5th 584 (2022) ……………………………………………………8
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`Pines v. Tomson
`160 Cal. App. 3d 370 (1984) ……………………………………………...20, 21
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`Shaw v. Hunt
`517 U.S. 899 (1996) …………………………………………………………..21
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`Spokeo, Inc. v. Robins
`578 U.S. 330 (2016) ……………………………………………………………8
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`White v. Square, Inc.
`891 F.3d 1174 (9th Cir. 2018) (“White I”) …………………………..........3, 8, 9
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`Case 3:21-cv-01833-BTM-MDD Document 14 Filed 04/06/22 PageID.108 Page 6 of 33
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`White v. Square, Inc.
`7 Cal.5th 1019 (2019) (“White II”) …………..………………………2, 3, 10, 11
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`Winchell v. English
`62 Cal. App. 3d 125 (1976) …………………………………………………. .20
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`42 USC § 1981 ……………………………………………………………………….23
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`STATUTES
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`42 USC § 2000a ……………………………………………………………………...23
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`42 USC sec. 2000e-2(a) ……………………………………………………………...23
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`42 USC § 2000a-1……………………………………………………………………24
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`42 USC § 2000d………………………………………………………………………24
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`31 USC § 6711………………………………………………………………………..24
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`49 USC § 306…………………………………………………………………………24
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`Cal. Bus. & Prof. Code § 125.6 ……………………………………………………...23
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`Cal. Civ. Code § 51………………..………………….…………………………passim
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`Cal. Civ. Code § 51.5.………...…………………………………………………passim
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`Cal. Civ. Code § 51.6……………………………………………...………………….24
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`Cal. Code Regs. Tit. 2, § 11105………………………………………………………24
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`California Constitution Art. 1, § 8 …………………………………………………...22
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`California Constitution Art. 1, § 31(a) ……………………………………………….22
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`Cal. Educ. Code § 220 ……………………………………………………………….22
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`Cal. Educ. Code § 71028 …………………………………………………………….17
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`Cal. Code Regs. Tit. 2, § 11006 ……………………………………………………...22
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`Cal. Code Regs. Tit. 5, § 4900 ……………………………………………………….23
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`Cal. Gov't Code § 12920……………………….……………………………………..24
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`Cal. Gov't Code § 12921……………………….……………………………………..24
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`Cal. Gov’t Code § 11135 …………………………………………………………….23
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`Cal. Gov't Code § 11139.8……………………………………………………………24
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`Cal. Gov't Code § 12940……………………………………………………………...24
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`Cal. Gov't Code § 12955……………………….……………………………………..24
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`Cal. Health & Safety Code § 33436(b)(1)……………………………………………24
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`Cal. Ins. Code § 10140 ………………………………………………………………23
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`Cal. Public Contract Code § 2010 …………………………………………………...23
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`Cal. Public Contract Code § 10295.35……………………………………………….24
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`Cal. Pub. Res. Code § 5080.34……………………………………………………….24
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`Cal. Pub. Res. Code § 25230(b)(2) ………….…………………………………….…17
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`Cal. Public Resources Code § 30013 ………………………………………………...23
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`Cal. Water Code App. § 133-419 ……………………………………………………18
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`City of San Diego Art. 2: Administrative Code, Div. 35 § 22.3501 ………………...24
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`Fed. R. Civ. P. §8(a)…………………………………………………………………...6
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`Fed. R. Civ. P. §201(b) ………………………………………………………………15
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`U.S. Constitution 14th Amendment …………………………………………………..22
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`OTHER AUTHORITIES
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`The State Bar of California Rule of Professional Conduct 3.3(a)(2)
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`Candor Toward The Tribunal…………………………………………………...8
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`American Bar Association Model Rule 3.3(a)(2)
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`Candor Toward The Tribunal…………………………………………….……..8
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`Case 3:21-cv-01833-BTM-MDD Document 14 Filed 04/06/22 PageID.111 Page 9 of 33
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`I. INTRODUCTION AND SUMMARY OF OPPOSITION
`Amazon mischaracterizes this case as only affecting heterosexual White males.
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`In fact, several of the subclasses consist of members of other racial, gender, and sexual
`orientation groups that were adversely affected by Amazon’s discriminatory programs,
`including but not limited to Hispanic, Asian, non-binary, and transgender individuals
`who were denied full and equal accommodations, advantages, facilities, privileges,
`and/or services by Amazon. It is imperative that members of those groups are not
`forgotten here.
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`There is no public policy in favor of Amazon – under the false pretense of
`“diversity” – denying certain services to the public on the basis of race, sex, and sexual
`orientation. Nor is Amazon exempted or excused from Civil Code §§51 and 51.5’s
`prohibitions against businesses providing unequal treatment of and discrimination
`against people and other businesses based on several protected personal characteristics.
`As a result, Amazon’s arbitrary, invidious, and unreasonable discrimination violates the
`California Unruh Civil Rights Act (codified as California Civil Code section 51) and
`Civil Code section 51.5.1
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`There is a compelling public policy in California and the rest of the United States,
`evidenced by a slew of statutory or legislative enactments and established case law, in
`favor of requiring businesses to treat people equally except in extremely rare
`circumstances, none of which are present in this case. Koire v. Metro Car Wash, 40
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`1 Amazon inaccurately combines California Civil Code sections 51 and 51.5 and refers
`to them together as the “Unruh Civil Rights Act” or simply the “Unruh Act.” But only
`Civil Code §51 is the Unruh Civil Rights Act. Civil Code §§51 and 51.5 were separately
`enacted in 1959 and 1976, respectively, for two very different reasons and with very
`different legislative histories. See Gatto v. County of Sonoma, 98 Cal. App. 4th 744,
`757 (2002), which discusses this inaccuracy at length, ruling: “By its own terms, the
`Unruh Civil Rights Act comprises only section 51.” Thus, Amazon’s motion failed to
`move to dismiss the Complaint’s Civil Code §51.5 cause of action.
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`Cal. 3d 24, 40 fn 8 (1985) (“‘Public policy’ exceptions to the Unruh Act are rare”
`because of “the government’s ‘compelling interest in eradicating discrimination in all
`forms.’”) In fact, as explained below, both California and Federal courts routinely reject
`purported public policy exceptions to antidiscrimination laws. “[A]n exceedingly
`persuasive justification for unequal treatment based upon gender would have to be
`derived from public policy, and the decision in Koire v. Metro Car Wash forecloses the
`possibility of a state public policy supporting unequal treatment of men and women.”
`Connerly v. State Personnel Board, 92 Cal. App. 4th 16, 40, fn 3 (2001). “[T]he
`California Constitution protects the rights of individuals to equal treatment.” Crest et
`al v. Padilla, Los Angeles Sup. Ct. case no. 20 STCV 37513 (original italics) (April 1,
`2022) (See Request for Judicial Notice, Exhibits 1 and 2; declaring Cal. Corp. Code §
`301.4 unconstitutional as violating Article 1, Section 7 of the California Constitution
`(Equal Protection) by requiring race, gender, and LGBT diversity on corporate boards.)
`Simply put, alleged promotion or fostering of diversity does not defeat or exceed the
`State’s compelling interest in strict enforcement of its antidiscrimination laws.2
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`At this nascent, pleadings stage of this case, Plaintiff does not have to prove
`Amazon discriminated against him and the putative class members in violation of Civil
`Code §§51 or 51.5. Now, Plaintiff must only adequately state a claim for which relief
`can be granted. The Complaint has done that, with the allegations in the Civil Code
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`2 As set forth in the California Supreme Court’s latest Unruh Act opinion, White v.
`Square, Inc., 7 Cal.5th 1019, 1025 (2019), the purpose of the Act is to create and
`preserve “a nondiscriminatory environment in California business establishments by
`‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments.”
`(Citations omitted.) “The Act stands as a bulwark protecting each person’s inherent
`right to ‘full and equal’ access to ‘all business establishments.’ (Citations omitted.) In
`enforcing the Act, courts must consider its broad remedial purpose and overarching goal
`of deterring discriminatory practices by businesses. (Citation omitted.) We have
`consistently held that “the Act must be construed liberally in order to carry out its
`purpose.” (Citations omitted.)
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`§§51 and 51.5 causes of action matching the elements of CACI jury instructions 3060
`and 3061, respectively, for these two claims.
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`Regarding Amazon’s argument that Plaintiff lacks standing under Article III of
`the U.S. Constitution, Amazon shockingly (and perhaps unethically according to the
`State Bar of California and ABA rules for Candor Towards the Tribunal) failed to
`disclose to the Court the leading Ninth Circuit legal authority on Article III’s
`requirement that a plaintiff must have suffered an injury in fact to have standing, White
`v. Square, Inc. 891 F.3d 1174 (9th Cir. 2018) (“White I”), which is directly on point in
`the present case and directly adverse to Amazon’s position on this issue. White I held
`that a person who visits and reviews a business’s website, encounters a discriminatory
`policy, and does not proceed to subscribe to the website’s services, has standing under
`Article III of the U.S. Constitution.
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`Turning to the requirement for standing for an Unruh Act or Civil Code section
`51.5 claim, Amazon once again failed to disclose to the Court the leading legal authority
`for standing for an Unruh Act plaintiff who visits a business’s website with the intent
`to use 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, which is the California Supreme Court case of
`White v. Square, Inc. 7 Cal. 5th 1019 (2019) (“White II”). White I first made the above
`ruling on Article III standing for a plaintiff who encountered discrimination while
`visiting a website, then certified questions to the California Supreme Court about the
`standing requirement under the Unruh Act under the same circumstances.
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`White II answered the Ninth Circuit’s questions with the following concise
`holding:
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`We conclude that a person who visits a business’s website with intent to use
`its services and encounters terms or conditions that exclude the person from
`full and equal access to its services has standing under the Unruh Civil Rights
`Act, with no further requirement that the person enter into an agreement or
`transaction with the business. White II at 1032 – 1033.
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`White II, like White I, could not have been more on point with the facts of the
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`present case. Accordingly, the Complaint’s allegation about Plaintiff’s visits to
`Amazon’s website where he encountered terms and conditions about Amazon’s race,
`sex, and sexual orientation-based services mirrors White II’s holding regarding standing
`for a plaintiff who encountered discrimination while visiting a website as follows:
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`In the summer and fall of 2021, Plaintiff, who is a heterosexual White male,
`visited Defendant’s Amazon.com website with the intent to become an
`Amazon Business seller, and encountered the above-referenced webpages and
`programs, including Amazon’s Seller Certification program and Guided
`Buying policy terms or conditions, all of which denied him and other
`heterosexual White males from the full and equal access to Amazon’s services
`based on LGBT status, race, and sex. (Complaint, ¶37.)
`
`Lastly, there is no “evidence” in the Complaint, or any that has been judicially
`
`noticed, proving Amazon’s race, sex, and sexual orientation-based services actually
`“fostered” or “promoted” diversity as Amazon asserts in its motion. As was set forth
`in the Complaint and will be further explained below, these discriminatory services
`actually discourage and hinder diversity by excluding much of the population from
`receiving the services at issue in this case.
`
`For example, the Black Business Accelerator offers valuable services including
`financial assistance, advertising credits, free imaging services, cash grant opportunities,
`and educational and marketing support to only Blacks. Therefore, Amazon bars 88% of
`the population – every Hispanic, Asian, Native American, Pacific Islander, and
`Caucasian of all genders – from receiving those services. (Complaint at ¶ 10.) This
`means Amazon will not provide those services to a Hispanic non-binary immigrant, a
`poor struggling Asian woman, a disabled Native American man, or a transgender
`Pacific Islander, regardless of how disadvantaged they are or how much these minorities
`would benefit from a Business Accelerator program just as much as would a Black
`person. Furthermore, there is no “Asian Heritage Month” or “Native American
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`Heritage Month” promotion for Asian and Native American sellers like there is for
`Hispanics and Blacks. (Complaint at ¶ 11.) Amazon even has a “Discover Women-
`Owned Businesses” service to highlight and promote women-owned businesses, but no
`“Discover Nonbinary-Owned [or Transgender-Owned] Businesses” page, even though
`members of the latter groups would benefit from such promotion too. (Complaint at ¶
`6.) Amazon’s “Discover Women-Owned Businesses” service or feature has no
`equivalent for Black, Hispanic, Asian, Pacific Islander, and Native American men, all
`of whom would benefit from having their Amazon seller pages promoted as well.
`
`Amazon’s exclusive race, sex, and sexual orientation-based exclusionary
`practices for its sellers’ accounts is akin to Amazon allowing everyone full and equal
`access to Amazon buyer accounts to shop on Amazon.com, but then denying members
`of certain racial, gender, or sexual orientation groups the ability to sign up for Amazon
`Prime, and then saying the denial of certain services to certain groups was done to
`promote diversity. Slapping a “diversity” label on a discriminatory business practice
`does not legalize the discrimination, especially a practice that discriminates against or
`excludes much of the population.
`II. LEGAL STANDARDS
`A. Legal Standard For A FRCP 12(b)(1) Motion To Dismiss
`Plaintiffs agree with Amazon’s legal standard that for a plaintiff to prevail on a
`defendant’s 12(b)(1) motion to dismiss, a plaintiff must establish standing to invoke
`subject matter jurisdiction, i.e., (1) the plaintiff must have suffered an injury in fact, (2)
`that is fairly traceable to the challenged conduct of the defendant and not the result of
`the independent action of some third party not before the court, and (3) that is likely to
`be redressed by a favorable judicial decision. Amazon’s motion concentrates on only
`the first element – whether the Plaintiff in the present case suffered an injury in fact.
`However, Mr. Correll clearly meets the standing requirements set forth by the Ninth
`Circuit in White I.
`B. Legal Standard For A FRCP 12(b)(6) Motion To Dismiss
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`A complaint must contain “a short and plain statement of the claim showing that
`the pleader is entitled to relief.” Fed. R. Civ. P. §8(a). Dismissal under Federal Rule of
`Civil Procedure 12(b)(6) “is appropriate only where the complaint lacks a cognizable
`legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v.
`Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint need not
`contain detailed factual allegations, but facts pleaded by a plaintiff must be “enough to
`raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
`544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient
`factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
`III. FACTUAL SUMMARY
`The crux of this case is Amazon’s implementation of several policies, programs,
`and services that favor certain groups of Amazon’s sellers over others based on their
`race, sex, and LGBT status or sexual orientation. Complaint, passim. These programs
`showcase, promote, financially assist, mentor, market, and otherwise support certain
`sellers’ products to the detriment of other sellers, solely based on the sellers’ otherwise
`protected personal characteristics. Complaint, ¶¶ 5-18.
`Several of these discriminatory programs or services entice, steer, and direct
`consumers away from Amazon’s disfavored sellers (the most disfavored of whom suffer
`from the intersectionality of being White, heterosexual, and male) and towards
`Amazon’s favored sellers who can be (and in some cases are) wildly wealthy women,
`Blacks, Hispanics, Asians, Native Americans, Pacific Islanders, and members of the
`LGBT community. Id., 2:24 – 3:2, ¶19, passim. As set forth in paragraph 19 of the
`Complaint, billionaires who happen to have Amazon’s preferred skin color, or are
`female or LGBT, are eligible for these programs, but a poor or middle-class
`heterosexual White guy is not. Id., ¶19.
`The programs and services challenged in this case are not based on sellers’
`financial situation, economic plight, competitive disadvantage, business savvy, or any
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`other metric equally applicable to all persons, but are based solely on race, sex, and
`sexual orientation. The Complaint includes the following example:
`
`S&F Corporation, the seller of the items in Exhibit 11, is an Asian-owned
`business with annual revenues of $23 million dollars. Therefore, a buyer who
`checks the box for “Minority-Owned Business” in their user interface and
`searches for these outdoor light timers will receive search results from
`Amazon containing products sold by this $23 million seller solely because
`Amazon has determined this well-heeled seller is a minority, but Amazon will
`not provide that same buyer any search results containing the exact same
`products if the seller has the misfortune of being White. Complaint, ¶18.
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`These types of business practices brazenly cross the line from purported
`fostering or promoting diversity, to outright intentional, arbitrary, invidious, and
`unreasonable discrimination against almost everyone.
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`IV. ARGUMENT
`A. PLAINTIFF HAS STANDING UNDER ARTICLE III OF THE U.S.
`CONSTITUTION BECAUSE PLAINTIFF HAS INDEED SUFFERED AN
`INJURY IN FACT, CONSISTENT WITH THE NINTH CIRCUIT’S ON-
`POINT RULING IN WHITE I ABOUT A SIMILARLY-SITUATED
`PLAINTIFF ALLEGING AN UNRUH ACT CLAIM AGAINST AN
`ONLINE BUSINESS AFTER VISITING THE WEBSITE AND
`ENCOUNTERING DISCRIMINATORY TERMS OR CONDITIONS,
`THEN LEAVING THE WEBSITE WITHOUT SUBSCRIBING TO THE
`BUSINESS’S SERVICES.
`
`Amazon’s motion failed to disclose to this Court two recent controlling legal
`authorities – the two “White v. Square” opinions noted above – the first by the Ninth
`Circuit Court of Appeals in 2018, and the second by the California Supreme Court in
`///
`///
`///
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`2019. The latter case responded to a Ninth Circuit order in the first case certifying a
`question to California’s high court3.
`The Ninth Circuit opinion, White v. Square, Inc., 891 F.3d 1174 (9th Cir. 2018)
`(“White I”) held that a person who merely visited and reviewed a business’s website,
`came upon a discriminatory policy, and did not proceed to engage the website’s
`services, had standing under Article III of the U.S. Constitution because he had
`established an injury in fact as defined in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016)
`(“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion
`of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or
`imminent, not conjectural or hypothetical’” (quoting Lujan v. Defs. of Wildlife, 504 U.S.
`555, 560 (1992)); White I, 891 F.3d at 1176.
`White I was about a bankruptcy attorney who brought an Unruh Act claim against
`online business, Square, Inc., a provider of an attachment to electronic devices to
`
`
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`3 That Amazon would omit from its motion any mention of the landmark California
`Supreme Court opinion directly addressing standing under the Unruh Act is telling of
`Amazon’s apparent intent to mislead or, at best, not fully inform this Court. Omitting
`the White cases from a discussion of standing under the Unruh Act is akin to omitting
`Brown v. Board of Education, 347 U.S. 483 (1954) from the discussion of a case about
`segregation. Plaintiff maintains it strains credulity that six attorneys from one of the
`world’s largest law firms somehow inadvertently, innocently, or unwittingly omitted
`citations to both White opinions. The State Bar of California Rule 3.3(a)(2), Candor
`Toward the Tribunal, provides in pertinent part: “A lawyer shall not . . . fail to disclose
`to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
`directly adverse to the position of the client and not disclosed by opposing counsel…”
`Similarly, ABA Model Rule 3.3(a)(2) under Candor Toward the Tribunal, reads, “A
`lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the
`controlling jurisdiction known to the lawyer to be directly adverse to the position of the
`client and not disclosed by opposing counsel.” See, e.g., People v. Williams, 75 Cal.
`App. 5th 584 (2022) (defendant’s attorney was not excused from duty of candor to
`tribunal, with respect to disclosing adverse legal authority as required by California
`Rule of Professional Conduct 3.3(a)(2).)
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`process credit card payments. Square’s policy prohibited bankruptcy attorneys from
`using Square’s online payment processing service. White I, 891 F.3d at 1176. The
`attorney did not enter a business relationship with Square. Ibid.
`White I held that the attorney’s allegations satisfied Article III’s requirements for
`a concrete and particularized injury because he alleged that he sought to use Square’s
`services but was denied full and equal access because of its discriminatory policy
`against bankruptcy attorneys. White I, 891 F.3d at 1176-77. White I further explained
`that the Plaintiff alleged a concrete and particularized injury “[b]ecause ‘discrimination
`itself ... can cause serious non-economic injuries to those persons who are denied equal
`treatment solely because of their membership in a disfavored group,’” Heckler v.
`Mathews, 465 U.S. 728, 739–40 (1984), and “state law can create interests that support
`standing in federal courts.” Cantrell v. City of Long Beach, 241 F.3d 674, 684 (9th Cir.
`2001); White I, 891 F.3d at 1177.
`Plaintiff’s next argument, concerning Plaintiff’s standing under California’s
`Unruh Act, is supported by Cantrell’s finding that “state law can create interests that
`support standing in federal courts.” Ibid. Here, the Complaint alleges sufficient facts to
`meet the standing requirement for victims of an online business’s discriminatory policy,
`terms, or conditions, at least by the following allegation:
`
`
`In the summer and fall of 2021, Plaintiff, who is a heterosexual White male,
`visited Defendant’s Amazon.com website with the intent to become an
`Amazon Business seller, and encountered the above-referenced webpages and
`programs, including Amazon’s Seller Certification program and Guided
`Buying policy terms or conditions, all of which denied him and other
`heterosexual White males from the full and equal access to Amazon’s services
`based on LGBT status, race, and sex. (Complaint, ¶37.)
`
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`Also, the Complaint’s paragraphs 38 through 43, 52, 58, 61, 64, 70 through 73,
`and 78 through 80, all allege facts that Plaintiff has suffered an injury in fact as defined
`by White I and Spokeo v. Robins. Plaintiff now moves on to the second White v. Square
`
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