In White v. Square, Inc., the Ninth Circuit today asks the Supreme Court to resolve what the federal appeals court calls “an important open question of state law” under California’s Unruh Civil Rights Act. The question is:
Does a plaintiff suffer discriminatory conduct, and thus have statutory standing to bring a claim under the Unruh Act, when the plaintiff visits a business’s website with the intent of using its services, encounters terms and conditions that deny the plaintiff full and equal access to its services, and then departs without entering into an agreement with the service provider? Alternatively, does the plaintiff have to engage in some further interaction with the business and its website before the plaintiff will be deemed to have been denied full and equal treatment by the business?
The case involves a putative class action against an internet-based company that allows some, but not all, individuals and entities to accept electronic payments without contracting with VISA or MasterCard. Excluded patrons include bankruptcy attorneys. The company requires users to promise they “will not accept payments in connection with the following businesses or business activities: . . . (28) bankruptcy attorneys or collection agencies engaged in the collection of debt.” According to the Ninth Circuit’s order, the plaintiff is a bankruptcy attorney alleging the restriction violates “the Unruh Act’s ban on occupational discrimination.”
Possibly because the Supreme Court recently made clear that it will not automatically accept every request to answer a state law question (see also here), the Ninth Circuit says at the outset, “We recognize that the Court has a substantial caseload, and we submit these questions only because of their significance to claims brought under the Unruh Act.”
The Supreme Court should let the Ninth Circuit know by the beginning of August — give or take — whether it will answer the question.
[June 8 update: The Supreme Court today docketed the Ninth Circuit’s request.]