[HN Gopher] California Supreme Court: Transaction is not require...
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California Supreme Court: Transaction is not required to sue online
providers
Author : hhs
Score : 110 points
Date : 2020-04-12 20:25 UTC (2 hours ago)
(HTM) web link (harvardlawreview.org)
(TXT) w3m dump (harvardlawreview.org)
| kccqzy wrote:
| I hope this title can be clarified, but that although a
| transaction is indeed not required, an intention to enter into a
| transaction seems to be required.
|
| > Writing for a unanimous court, Justice Liu emphasized that "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," [...]
|
| And merely awareness is not enough.
| myrryr wrote:
| How does that interact with understanding that some businesses
| carry a lot more risk than others?
| hamandcheese wrote:
| Those business should price the risk into their fees?
| austincheney wrote:
| An intention to enter into an online transaction for the point
| of a business agreement is any attempt to create any online
| account. This is particularly true for social media where the
| user is the product and their data is a revenue generating
| business commodity immediately available regardless of whether
| that user ever returns to the site.
|
| This legal decision is a very good thing. The _terms of
| service_ clauses only exist to limit the rights of the user for
| the sake of lowering litigation risks against the site in
| question. These agreements need to be destroyed. If any site
| wishes to limit user rights or limit risks of litigation they
| should directly alter their products to apply such limits
| directly.
|
| So long as online business makes a good faith effort to limit
| functional access to their products/services that would
| otherwise violate the agreeable terms they are already legally
| covered from litigation risks without need for a _terms of
| service_ agreement, such as anti-hacking laws. The point of
| these agreements is to allow such websites necessary protection
| from litigation intentionally withholding any equivalent
| functional limitations upon their users. The reason for that is
| they want user contributions with the fewest barriers upon
| those users and the maximal harvesting of the resulting user
| engagement.
|
| > And merely awareness is not enough.
|
| How do you legally prove intention? The practical distinction
| that applied to this particular legal case is that the
| plaintiff merely read the site's _terms of service_ agreement
| insinuating that had they not been serious about opening an
| account they would not have taken such an effort. They did not
| take any further action to engage that business, however, such
| as ever navigating to the site 's account creation page.
|
| I hope this is a step towards voiding _terms of services_
| protections from online businesses.
| anw wrote:
| This is an interesting article, and one that is important for
| people who run a SMB in California to take note of.
|
| > The court then noted that even if allowing plaintiffs to sue
| prior to signing up could lead to abusive litigation, that issue
| should be left to the legislature.
|
| This was my concern, as well. I hope that the opening this allows
| for later lawsuits will be handled by the larger corporations who
| have deep pockets and can afford to fight these battles. My fear
| is that this would create a bunch of drive-by-lawsuits aimed at
| small businesses in the hopes that they will just settle (much
| the same as patent trolls).
|
| I would love to hear from any lawyers on the board who have
| thoughts on this case.
| joecasson wrote:
| I agree with you on the risk.
|
| This seems to have tremendous implications for any digital
| business. I'm reading into this a bit, but it seems that part
| of Square's case rested on the fact that White didn't actually
| want to do business with him. He may have just heard about the
| Shierkatz case from his friends' firm and then saw an opening
| for a class action.
|
| If that's the case, just the passing intention to do business -
| real or not - becomes grounds? Yikes. I feel like I agree with
| the decision to have business be open to all consumers, but I
| didn't see much in the way of proof-of-intent on the
| plaintiff's behalf.
| hamandcheese wrote:
| It seems you might be right:
|
| > White was personal friends with a partner of Shierkatz
| RLLP, and he discovered the prohibition on debt collection in
| Square's agreement after reading the court's Shierkatz file.
| stefan_ wrote:
| This is the same nonsense discussion we are having with the
| unfiltered NSA data collection: you know it's happening, they
| say it's happening, but no one can have standing to sue
| because you know, you being spied on is secret.
|
| _Standing_ should never be the hurdle these kinds of claims
| fail on.
| mrandish wrote:
| > My fear is that this would create a bunch of drive-by-
| lawsuits aimed at small businesses in the hopes that they will
| just settle (much the same as patent trolls).
|
| This is exactly the problem that the Supreme Court has been
| trying to prevent by generally allowing arbitration clauses to
| be binding. The cost, delay and uncertainty of going to court
| creates its own punitive effect and thereby creates an
| imbalance.
| molticrystal wrote:
| California can require the company to pay the all or the
| majority of fees for arbitration, and this has been used by
| large groups of individuals to band together and arbitrate at
| the same time, costing great deals of money and burden to a
| company, forcing them to settle.
|
| https://news.bloomberglaw.com/daily-labor-report/uber-
| sees-w...
|
| The 60k arbitration claims could of cost $75m in fees alone,
| not to mention it can be 9k/day to pay the arbitrators
| themselves. So they settled for $146m.
|
| There are a few other cases of this, and I am sure there will
| be more collective action through mass arbitration. I imagine
| eventually it will come to being abused as well.
| gamblor956 wrote:
| If a business is facing 60000 arbitration claims from
| customers they are not a small business anymore and
| presumably should be able to handle the burden of
| arbitration customer disputes.
| rgbrenner wrote:
| Drive by lawsuits for discrimination? I'd like to hear more
| about how this would work.. Is this a thing? Like you would go
| sue a perfectly legitimate and non-discriminatory business for
| excluding black people, even though no such discrimination
| exists? And how would they win that? And how many attempts
| before they lose their license and/or are barred from bring any
| more cases?
|
| Here's the Unrah Act:
|
| _All persons within the jurisdiction of this state are free
| and equal, and no matter what their sex, race, color, religion,
| ancestry, national origin, disability, medical condition,
| genetic information, marital status, or sexual orientation are
| entitled to the full and equal accommodations, advantages,
| facilities, privileges, or services in all business
| establishments of every kind whatsoever._
|
| Seems to me that the only business that would be concerned is a
| business that is engaged in activity that they shouldn't be
| doing anyway. And if that's the case, they should be sued.
| avs733 wrote:
| Drive by lawsuits for the ADA are very much a thing
|
| e.g.,:
|
| Beyonce -https://fortune.com/2019/09/21/beyonce-lawsuit-
| website-ada-c...
|
| https://tandem-interactive.com/ada-compliance-websites/
| rgbrenner wrote:
| So your example is a website that does violate the ADA. I
| understand that ADA compliance is hard for websites...
| that's not a legal issue so much as a technical issue. We
| do treat support for the blind, et al as an afterthought.
| So is your complaint here that the ADA is being enforced?
| Like we should just get rid of the ADA because people
| aren't complying? Or are you upset the ADA doesn't say:
| _please make your best effort_? Better support for the
| disabled in our front end frameworks would be awesome.. It
| is too bad there isn 't more focus on it.
| hash872 wrote:
| I think what you're missing is that the websites may be
| 100% in compliance with the ADA- the site owners simply
| can't risk the expense & uncertainty of a lawsuit, so
| they settle. It's (legal) extortion, the law is simply
| the vehicle by which they do it. And it certainly doesn't
| make the world a better place for the disabled, it's just
| a payoff for the attorneys. It is literally the same
| concept as patent trolling.
|
| Maybe a solution would be to change these laws so that
| the outcome of the lawsuit is a mandated change to ADA
| standards, but no damages, and parties have to pay their
| own attorney's fees. That would achieve what you say
| you're looking for, good faith ADA compliance, without
| incentivizing strongarm attorneys looking for a quick
| buck
| dsfyu404ed wrote:
| >Maybe a solution would be to change these laws so that
| the outcome of the lawsuit is a mandated change to ADA
| standards, but no damages,
|
| We pretty much have this for violations of civil law. The
| judge says "just make your crap in compliance and we
| won't fine you" and continues the case to a later date
| and if it's in compliance by that later date they don't
| fine you.
|
| Of course that doesn't solve the trolls that send a scary
| looking letter even when no violation exists and hope
| that the victim settles but it's better than the trolls
| being able to win in court.
| ForHackernews wrote:
| You might hope that the risk of legal damages would spur
| better technological solutions. Businesses won't take
| these issues seriously unless it impacts their bottom
| line, so that's the point of these laws.
|
| There's also virtuous cycle here: sites that are more
| accessible to screen readers would generally have better
| semantic markup, and be better for machine parsing, too.
| avs733 wrote:
| oh no, I have absolutely no complaint. I 100% support the
| ADA and think it is incredibly underused. The way we
| treat people who are disabled in this country is morally
| indefensible. The ADA doesn't go nearly far enough, and
| the burden should not be on the person who needs access.
|
| That being said...
|
| The problem in this case is the rammifications are not
| always more accessibility, in fact they are often less
| accessibility and even less availability. It's not
| dissimilar to copyright trolls and striking youtube
| videos that happened to have happy birthday playing in
| the background. The frivolous label gets applied and
| undermines greater accessibility.
|
| An example of where this can go bad:
|
| 1) Materials that are not accessible are taken down under
| threat of lawsuit, now its not available to anyone. Could
| they have been made accessible? Sure! did anyone ask...or
| did they start with a lawsuit? -
| https://www.theledger.com/news/20190420/ada-compliance-
| polk-...
|
| 2) when assholes are assholes and use the ADA, everyone
| else now has to counter arguments saying they are trying
| to personally profit -
| https://attorneyatlawmagazine.com/ada-trolls-and-
| unintended-...
|
| 3) New laws making it harder in Florida to win ADA
| lawsuits - https://www.wptv.com/longform/florida-
| lawmaker-files-bill-to...
| chroma wrote:
| I'll bite the bullet and say it: If the ADA requires UC
| Berkeley to take down 20,000 hours of lecture videos[1]
| because some of them lacked subtitles and some lacked
| audio descriptions of slides, then the ADA needs to be
| changed. And any university that commits civil
| disobedience by not removing content is making the world
| a better place.
|
| 1. https://news.berkeley.edu/wp-
| content/uploads/2016/09/2016-08...
| [deleted]
| TACIXAT wrote:
| Is this going to affect similar practices for all payment
| processors? I feel almost any payment processor refuses to deal
| with "vice" business (porn, gambling) due to high risk of fraud.
| This will be very interesting if they are no longer allowed to do
| that.
| jedberg wrote:
| They'll just make the fees be 110% of the transaction or
| something similar. That's how credit card processors do it now.
|
| They charge a variable rate based on the nature of the business
| and the risk it involves. Porn sites get charged 10-20% in
| credit card fees because of the high number of chargebacks.
| CWuestefeld wrote:
| What about the discrimination against gun dealers?
|
| I'm speculating that fraud would be lower than average for
| such transactions, because there's such a strong paper trail
| from the instacheck system and all.
| mritun wrote:
| Isn't that discrimination too if we go by this precedent?
|
| IceCreme? We can't refuse you, but it's $4500 for you!
|
| Where do you draw the line? Litigation is expensive!
| staller wrote:
| I'm curious about this too. If your business has high risk
| than raising your fees for select people sounds like
| discrimination. Raising them for your whole platform could
| really hurt your business
| [deleted]
| rgbrenner wrote:
| To require a transaction would mean you can discriminate based on
| anything and everything. Exclude black people from entering your
| store? no problem because they haven't bought anything.
|
| That's so obviously wrong and exactly what civil rights
| legislation was created to address, that I feel like the lower
| courts made a big mistake and this should have never reached the
| SC. There's nothing surprising in the CA SC ruling.. I'm
| surprised Harvard Law Review decided to write an article on it.
| ueudrjjj wrote:
| While not an invalid point, it's worth noting that this case
| deals mostly with occupational discrimination and not racial
| discrimination which is arguably a red herring here. Debt
| collectors for example, from my reading, were among certain
| groups barred from accessing Square.
| netcan wrote:
| Well, that seems to be the analogy the judge saw... and common
| law works by analogy.
|
| Analogies and metaphors break though.. when stacked too high or
| precariously. Here we stack the segregation analogy _and_ the
| metaphor of "corporation are people, with rights." So,
| discriminating against a class of corporations is a violation
| of civil rights. In this case, the civil rights of bankruptcy
| attorneys & collection agencies... who probably do unsavoury
| things with square's service.
| klipt wrote:
| > discriminating against a class of corporations is a
| violation of civil rights
|
| This seems obviously true if eg the class in question is the
| corporation owner's race or sex.
| pmiller2 wrote:
| Corporations frequently do not have a single owner. How
| does the logic work in that case?
| hamandcheese wrote:
| > However, it is unclear whether a class containing members bound
| by arbitration agreements can be certified. At the same time, the
| broad conception of statutory standing under the Unruh Act would
| be much less effective as a deterrent if class certification were
| denied based on the inclusion of class members who have signed
| arbitration agreements. While the White court declined to address
| the class certification issue, similar classes containing members
| bound by arbitration agreements have been certified in California
| federal district court cases against Uber and Toyota.
|
| This is very interesting to me. This case seems to (or at least
| might, once it's fully litigated) further open the door to class
| action led by a plaintiff who is not bound under an arbitration
| agreement, but with the class still representing members who are
| bound under arbitration agreements.
| pm_me_ur_fullz wrote:
| A few years ago Silicon Valley Bank wouldn't open an account for
| an entity with blockchain in the name, no matter what it actually
| did.
|
| I can use this ruling, doesn't matter how skittish their
| compliance officer is nor the lack of clarity from their federal
| regulators. Should be a good time and accelerant!
| ThePowerOfFuet wrote:
| >and accelerant
| cjensen wrote:
| Yes and no. This means you can sue despite not being a
| customer. It does not mean your suit will succeed.
| pm_me_ur_fullz wrote:
| I understand, it just won't be dismissed for "not having
| standing" on the plaintiff's side.
|
| Progress!
| Quanttek wrote:
| Great ruling! Anything else would've been quite absurd or
| inconsistent as it would allow for e.g. a grocerer to pin a
| "whites only" sign onto the door and anyone deterred would not
| have standing.
|
| I also want to laud the beautiful design of the webpage.
| LatteLazy wrote:
| The ruling seems reasonable, the law... Very surprising. Since
| when is line of work/business a protected class? And its also not
| clear whether the "person" applying needs to be a natural person
| or if it can be an llc etc. I wasn't aware LLCs could suffer
| discrimination (at least not directly)...
| [deleted]
| sio8ohPi wrote:
| The 9th circuit discusses this briefly at the bottom of page 7
| here:
|
| http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16...
|
| > California Courts of Appeal have interpreted this reference
| to mean that the Unruh Act prohibits arbitrary occupational
| discrimination. Sisemore v. Master Fin., Inc.,151 Cal. App. 4th
| 1386,1405-06 (2007); Long v. Valentino, 216 Cal. App. 3d
| 1287,1297 (1989).
| LatteLazy wrote:
| It's interesting.
|
| I always get frustrated when companies arbitrarily decide
| they don't want certain industries (alcohol or firearms or
| porn).
|
| But forcing all companies to take every comer on the same
| terms seems a bit extreme. I freelance in IT. I would want
| more money or would downright refuse certain jobs on moral
| grounds (I wouldn't work with the Saudi government at any
| price). Am I being unreasonable in that?
| [deleted]
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