FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT E. WHITE, an No. 16-17137 individual, and all others similarly situated, D.C. No. Plaintiff-Appellant, 3:15-cv-04539-JST v. ORDER CERTIFYING SQUARE, INC., a Delaware QUESTIONS TO THE corporation, CALIFORNIA Defendant-Appellee. SUPREME COURT Filed June 7, 2018 Before: Richard A. Paez and Sandra S. Ikuta, Circuit Judges, and Eric N. Vitaliano,* District Judge. * The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. 2 WHITE V. SQUARE, INC. SUMMARY** Certified Question to California Supreme Court The panel certified the following questions of state law to the Supreme Court of California: 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? ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. WHITE V. SQUARE, INC. 3 COUNSEL William McGrane, McGrane PC, San Francisco, California; Myron Moskovitz, Moskovitz Appellate Team, Piedmont, California; for Plaintiff-Appellant. Colleen Bal and Joshua A. Baskin, Wilson Sonsini Goodrich & Rosati P.C., San Francisco, California, for Defendant- Appellee. ORDER We ask the California Supreme Court to resolve an important open question of state law. To have statutory standing under the Unruh Act, a plaintiff must suffer discriminatory conduct. We need guidance, however, in applying the rules for statutory standing in the internet context, in order to determine whether a plaintiff has standing to sue an internet-based service provider after the plaintiff visits the business’s website but refuses to accept terms of service that deny the plaintiff full and equal access. The California Supreme Court’s guidance is especially necessary in light of current case law, which is divided on the question whether plaintiffs who present themselves to a business with an intent to use its services and encounter an exclusionary policy must nevertheless patronize the business in order to satisfy statutory standing. Accordingly, we certify the following questions: 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 4 WHITE V. SQUARE, INC. 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 ...
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