1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NEUHTAH OPIOTENNIONE, Case No. 19-cv-07185-JSC

8 Plaintiff,

ORDER RE: MOTION TO DISMISS

v. 9 Re: Dkt. No. 35 10 FACEBOOK, INC., Defendant. 11

12 13 Neuhtah Opiotennione challenges the lawfulness of allowing businesses to direct their 14 advertising to consumers based on a potential customer’s age or gender. In this case, she alleges 15 that Facebook’s advertising practices are unlawful because they led to her not having the 16 opportunity to receive certain financial services advertisements in her Facebook Newsfeed based 17 on her age and gender. Facebook moves to dismiss Plaintiff’s complaint for lack of Article III and 18 statutory standing and for failure to state a claim.1 Having considered the parties’ briefs and 19 having had the benefit of oral argument on August 13, 2020, the Court GRANTS the motion to 20 dismiss. Plaintiff’s allegations fail to support a plausible inference that she suffered an injury-in- 21 fact as a result of Facebook’s advertising tools. 22 FIRST AMENDED COMPLAINT ALLEGATIONS 23 Ms. Opiotennione is a 54-year-old woman who lives in Washington, D.C. and regularly 24 uses Facebook. (First Amended Complaint (FAC), Dkt. No. 30 at ¶ 15. 2) “As part of her regular 25 use of Facebook, she has been interested in receiving advertising and other information about 26 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). (Dkt. Nos. 6 & 20.) 1 financial services opportunities in Facebook advertisements, and otherwise being treated equally 2 to other Facebook users in all aspects of her use of the benefits she receives from Facebook.” (Id.) 3 However, she has been denied these advertisements and information due to her age and gender. 4 (Id.) Plaintiff identifies examples of ads where “where Facebook and financial services companies 5 selected and executed upon age- or gender-restricted audience selections that denied older persons 6 and/or women, including Plaintiff, the full and equal accommodations, advantages, facilities, and 7 services of Facebook and those companies.” (Id. at ¶¶ 72-76.) She also identifies three specific 8 ads that allegedly were not displayed in her News Feed because of her age and/or gender including 9 an advertisement for a rewards-based debit card from Aspiration and two advertisements for bank 10 accounts that she would have been interested in receiving in order to consider pursuing the 11 opportunity. (Id. at ¶¶ 108-109.) Because she was denied the possibility of receiving these 12 advertisements based on her age and gender, she was “denied the full and equal accommodations, 13 advantages, facilities, and services of Facebook and the financial services companies that denied 14 her valuable advertising and information.” (Id.) 15 Facebook uses three “tools” to exclude women and older people from receiving 16 advertisements, including financial advertisements:

17 (1) audience selections that exclude Facebook users from receiving advertisements based on age or sex; (2) Lookalike Audiences in 18 which Facebook determines the audience selection based on Facebook’s analysis of a seed audience provided by the advertiser; 19 and (3) Facebook’s ad delivery algorithm that determines which users within an audience selection will actually receive the advertisement. 20 (Id. at ¶ 32.) 21 The audience selection tool requires advertisers to “specify the parameters of the target 22 audience of Facebook users who will be eligible to receive the advertisement.” (Id. at ¶ 33.) The 23 advertiser “is required to make three selections that establish the basic parameters of the audience 24 selection: (1) age; (2) gender; and (3) location. These audience selection tools are presented to 25 advertisers through drop down menus that make clear to advertisers that they can include or 26 exclude persons with certain ages and/or genders from their audience selections. These tools 27 classify, categorize, and segregate Facebook users based on their age and/or gender.” (Id. at ¶ 36.) 1 While the default is for individuals 18-65 plus and all genders, “Facebook strongly encourages” 2 advertisers to narrow the age/gender range through among other things its “Facebook Blueprint” 3 course, which describes “How to Find Your Customers on Facebook.” (Id. at ¶¶ 39-40, 44.) “Any 4 Facebook user who is not within the relevant audience selection will not have the opportunity to 5 receive that specific paid ad[].” (Id. at ¶ 33.) 6 Under the Lookalike Audience tool, “advertisers provide Facebook with a list of Facebook 7 users whom they believe are the type of customers they want to reach (i.e. the seed audience), and 8 then Facebook applies its own analysis and algorithm to identify a larger audience that resembles 9 the seed audience (i.e. the Lookalike Audience).” (Id. at ¶ 56.) The advertisement is then sent to 10 the larger Lookalike Audience. (Id.) “Age and gender are two critical pieces of information that 11 Facebook uses to determine which Facebook users resemble the advertiser’s seed audience and 12 will, in turn, be included in the Lookalike Audience that Facebook creates based on its own 13 analysis and algorithm.” (Id.) 14 Facebook’s algorithm tool “uses many types of data, including data on the past 15 performance of certain types of advertisements and the ongoing performance of certain 16 advertisements, to determine which users will receive any given advertisement, including financial 17 services advertisements.” (Id. at ¶ 64.) The algorithm “directly relies upon both the age and 18 gender of Facebook users to determine which users will actually receive any given advertisement, 19 and Facebook uses both the age and gender of its users to determine who will actually receive 20 advertisements regardless of whether the advertiser directs Facebook to limit the age or gender 21 of its audience selection.” (Id. at ¶ 65.) 22 PROCEDURAL BACKGROUND 23 Plaintiff filed this action in October 2019 alleging two claims for relief under California 24 law: (1) age and sex discrimination in violation of the Unruh Civil Rights Act, California Civil 25 Code §§ 51, 52(a); and (2) age and sex discrimination in violation of California Civil Code §§ 26 51.5, 52(a). Facebook thereafter filed a motion to dismiss and Plaintiffs filed the now operative 27 First Amended Complaint which added claims for age and sex discrimination under the D.C. 1 Procedures Act, D.C. Code §§ 2-1402.31 (fourth claim). Facebook responded by filing the now 2 pending motion to dismiss. (Dkt. No. 35.) The motion is fully briefed and Upturn, Inc., and the 3 Lawyers’ Committee for Civil Rights under Law, Inc., have filed separate motions for leave to file 4 a brief of amicus curie in support of Plaintiff’s opposition brief. (Dkt. Nos. 39, 44, 46, 62.) 5 SUBJECT MATTER JURISDICTION 6 “Federal courts are courts of limited jurisdiction. They possess only that power authorized 7 by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 8 (1994). Plaintiff alleges and the Court finds that it has subject matter jurisdiction of this action 9 under 28 U.S.C. § 1332(d)(2), the Class Action Fairness Act (CAFA). (FAC at ¶ 10.) CAFA 10 vests federal courts with original jurisdiction over class actions in which: (1) the amount in 11 controversy exceeds $5,000,000; (2) diversity of citizenship exists between at least one plaintiff 12 and one defendant; and (3) the number of plaintiffs in the class is at least one hundred. 28 U.S.C. 13 § 1332(d)(2), (5), (6). 14 STANDING 15 “Standing is a necessary element of federal-court jurisdiction” and a “threshold question 16 in every federal case.” Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009) (citing Warth v. 17 Seldin, 422 U.S. 490, 498 (1975)). Article III standing consists of three “irreducible constitutional 18 minimum” requirements: “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly 19 traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 20 favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). These 21 elements are often referred to as injury in fact, causation, and redressability. See, e.g., Planned 22 Parenthood of Greater Washington & N. Idaho v. U.S. Dep’t of Health & Human Servs., 946 F.3d 23 1100, 1108 (9th Cir. 2020). Plaintiff, as the party invoking federal jurisdiction, bears the burden 24 of establishing the existence of Article III standing and, at the pleading stage, “must clearly [] 25 allege facts demonstrating each element.” Spokeo, 136 S. Ct. at 1547 (internal quotation marks 26 and citation omitted); see also Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983) (“The 27 facts to show standing must be clearly apparent on the face of the complaint.”). 1 “particularized,” and (3) “actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct. 2 at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). To be “particularized,” an 3 injury “must affect the plaintiff in a personal and individual way,” while “concreteness” requires 4 an injury to be “‘de facto’; that is, it must actually exist.” Id. at 1548 (internal citation omitted). 5 The requirement that an injury be “actual or imminent” “ensure[s] that the alleged injury is not too 6 speculative for Article III purposes—that the injury is certainly impending.” Clapper v. Amnesty 7 Int’l USA, 568 U.S. 398, 409 (2013). Further, there must be a sufficient “causal connection 8 between the injury and the conduct complained of.” United States v. Hays, 515 U.S. 737, 743 9 (1995). Standing theories that depend on a “speculative chain of possibilities”—such as those 10 that turn on “the decisions of independent actors”—lack the necessary causal connection. 11 Clapper, 568 U.S. at 414; see also Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 447 12 (9th Cir. 1994) (“[W]hen standing hinges on choices made by a third party, plaintiff must “adduce 13 facts showing that those choices have been or will be made in such manner as to produce 14 causation and permit redressability of injury.”) (quoting Lujan, 504 U.S. at 562). 15 Plaintiff has not met her burden of alleging facts sufficient to support an inference of injury 16 in fact. She contends that because she identified advertisements that could not appear in her News 17 Feed because of her age or gender she has suffered an injury in fact, namely, being subject to 18 discrimination. (Dkt. No. 39 at 14-15.) These allegations, however, are merely a generalized 19 claim of “unequal treatment” that does not rise to the level of an Article III injury in fact. In 20 Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003), for example, the plaintiff non-native Hawaiian 21 brought an equal protection challenge to Hawaii Constitution provisions which created agencies 22 providing special benefits to natives. The Ninth Circuit concluded that the plaintiff lacked Article 23 III standing because “the existence of the classification [favoring natives over non-natives] is not 24 sufficient to recognize standing” and instead, “presents only a generalized grievance.” Id. at 947; 25 see also id. at 940 (“The Supreme Court has repeatedly refused to recognize a generalized 26 grievance against allegedly illegal government conduct as sufficient to confer standing.”) (citing 27 Hays, 515 U.S. at 743). The Carroll plaintiff’s claim failed because he did not “provide any 1 evidence that he is ‘able and ready’ to compete for, or receive, an OHA benefit” or “even 2 identified a program that he would be interested in receiving.” Carroll, 342 F.3d at 947. In the 3 absence of such allegations he had not shown that he was hurt by the claimed wrongs. Id. at 947. 4 The same is true here. Plaintiff contends she has plausibly raised an inference of an injury 5 in fact because the FAC gives examples of financial advertisements that Facebook actually denied 6 her. (Dkt. No. 39 at 14 (citing FAC ¶¶ 73-74.)) That is no different, however, from the Carroll 7 plaintiff merely identifying programs limited to native Hawaiians. For example, one of the 8 advertisements Plaintiff identifies is by a military organization advertising loans available to 9 military officers Ranks E-5 Through O-4. (FAC ¶ 76; Dkt. No. 69 at 5:16-25.) The only injury 10 Plaintiff—who does not allege to be in the military, let alone an officer with an eligible rank—can 11 have suffered because of being denied the possibility of having that advertisement appear in her 12 News Feed is the existence of the age-specific restriction. Under Plaintiff’s theory, any person 13 who was excluded from the possibility of receiving that advertisement because of her age would 14 have standing. Not so. 15 Plaintiff does identify three advertisements which she generally alleges she “would have 16 been interested in receiving in order to consider pursuing the opportunity” (FAC at ¶¶ 108-109); 17 however, she does not allege that she was qualified for and interested in actually applying for the 18 product offered. See Carroll, 342 F.3d at 947 (holding that the plaintiff who offered no “evidence 19 that he is ‘able and ready’ to compete for, or receive, an OHA benefit” did not suffer an injury); 20 see also Bradley v. T-Mobile US, Inc., No. 17-CV-07232-BLF, 2020 WL 1233924, at *10 (N.D. 21 Cal. Mar. 13, 2020) (concluding that plaintiffs challenging same Facebook advertising practices 22 that allowed companies to restrict job applications based on age had to “show they were qualified 23 for and interested in the particular jobs subject to Defendants’ allegedly discriminatory practices” 24 to establish injury in fact); compare with White v. Square, Inc., 891 F.3d 1174, 1176–77 (9th Cir. 25 2018) (holding that the plaintiff “sought to use Square’s services, but was unable to do so because 26 of its discriminatory policy against bankruptcy attorneys”). 27 Plaintiff’s reliance on Unruh Act disability access cases is unpersuasive. In Doran v. 7- 1 wheel chair user had sufficiently shown an injury in fact by alleging that he had personally visited 2 a 7-11 store and encountered architectural barriers and that the existence of those barriers deterred 3 him from continuing to visit the store. Id. at 1040-41; see also Kirola v. City & Cty. of San 4 Francisco, 860 F.3d 1164, 1175 (9th Cir. 2017) (“The standard for injury in fact is whether Kirola 5 has encountered at least one barrier that interfered with her access to the particular public facility 6 and whether she intends to return or is deterred from returning to that facility.”). The 7 discriminatory act—the architectural barriers—prevented the plaintiffs from visiting the stores. 8 Under Plaintiff’s theory, being denied the possibility of having advertisements for products in 9 which you have no interest or eligibility appear in one’s Facebook News Feed is tantamount to 10 being denied the ability to visit a store that one actually wants to visit. That theory is untethered 11 from the law. 12 Finally, while the California Supreme Court in Angelucci v. Century Supper Club, 41 Cal. 13 4th 160 (2007), noted that the Unruh Act “renders ‘arbitrary sex discrimination by businesses ... 14 per se injurious,’” it still required allegations of injury. Id. at 174 (quoting Koire v. Metro Car 15 Wash, 40 Cal. 3d 24, 33 (1985)). The plaintiffs alleged that they were “subjected to, and paid, 16 defendant’s gender-based price differential.” Angelucci, 41 Cal. 4th at 175–76 (“a plaintiff cannot 17 sue for discrimination in the abstract, but must actually suffer the discriminatory conduct.”). 18 Likewise, in Koire, the “plaintiff was adversely affected by the price discounts. His female peers 19 were admitted to the bar free, while he had to pay. On the days he visited the car washes, he had 20 to pay more than any woman customer, based solely on his sex.” Koire, 40 Cal. 3d at 34. 21 The Court thus concludes that Plaintiff’s general grievance about being denied “full and 22 equal access” without alleging facts that support an inference that she was personally injured by 23 that denial fails to demonstrate an injury in fact sufficient to confer Article III standing. 24 Plaintiff’s second alleged injury—stigmatic harm—fares no better. Plaintiff alleges “she 25 personally suffered discrimination in Facebook’s public accommodations when she was denied a 26 primary benefit or service of Facebook—financial services advertising and information—based on 27 age and gender, causing her stigmatic harm.” (Dkt. No. 39 at 16:2-4.) However, stigmatic harm, 1 less worthy participants in the political community,” Heckler v. Mathews, 465 U.S. 728, 739 2 (1984) (internal citation and quotation marks omitted), “accords a basis for standing only to those 3 persons who are personally denied equal treatment by the challenged discriminatory conduct,” 4 Allen v. Wright, 468 U.S. 737, 755 (1984) (internal citation and quotation marks omitted). That is, 5 it still requires a personal denial of equal treatment, which as discussed supra, Plaintiff has not 6 alleged. See Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 596 (10th Cir. 7 1996) (“mere receipt by plaintiffs of the discriminatory advertisements in this case could cause 8 only the kind of ‘abstract stigmatic injury’ held insufficient to establish standing in Allen.”). 9 Plaintiff’s third alleged injury is that she was economically harmed because the 10 discrimination “made it harder for older persons and women to compete for and obtain financial 11 services opportunities” including “cheaper, better, or more appropriate financial services.” (FAC 12 at ¶ 114.) However, standing based on a denial of the opportunity to compete requires a 13 demonstration that the plaintiff was “able and ready” to do so, Gratz v. Bollinger, 539 U.S. 244, 14 262 (2003), and as discussed, supra, Plaintiff has not alleged facts that support such an inference. 15 Finally, Plaintiff generally alleges injury based on the denial of the opportunity to obtain a 16 benefit. (FAC ¶ 114.) While “the denial of an opportunity to obtain a benefit is itself an injury in 17 fact,” standing for such a claim likewise requires at a minimum that the plaintiff plausibly allege 18 that she is able and ready to apply for the benefit. Bradley, 2020 WL 1233924, at *8; see also id. 19 at *10 (collecting cases). Plaintiff has not done so. 20 CONCLUSION 21 Having concluded that Plaintiff has not alleged facts that support a finding that she 22 suffered an injury in fact, Facebook’s motion to dismiss for lack of standing must be granted. 23 While Facebook argues that there are myriad other reasons why her claims fail, including 24 additional standing problems, the Court declines to address them given its conclusion that Plaintiff 25 has not even made it past the first step. The motions for leave to file amicus briefs are denied as 26 moot since they relate to the Rule 12(b)(6) motion to dismiss. 27 Plaintiff’s amended complaint, if any, is due within 30 days of this order. 1 This Order disposes of Docket Nos. 35, 44, and 46. 2 IT IS SO ORDERED. 3 Dated: October 2, 2020 4 5 ne

JACQUELINE SCOTT CORLE

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