for the plaintiff in appellant robert white mr white is a bankruptcy lawyer in a small firm and he found that it would be helpful is business to be able to accept credit cards and rather than signing up for one of the big companies he decided to use square square provides credit card services for small businesses so mr white goes to the squares website he's told to look at the terms and conditions and the terms and conditions say we do not deal with bankruptcy lawyers no california's unruh civil rights act has been interpreted by the california supreme court to ban occupational discrimination and that's exactly what this is so he brings a class action  to use the services in order to experience the discrimination and although both sides so i did a lot of cases i didn't see anything explaining what would give them standing for this cyberspace under rock has to have a special interest that is greater than the interest in the public at large and that is concrete an actual rather the conjectural or hypothetical why doesn't he have to try to sign up for the pay the the fee the discriminatory fee before you have standing to say it's right they do this is not a price discrimination case this has nothing to do with the price they simply don't care what price you pay you can't join our service because you're a bankruptcy attorney so those cases involving prices going the nation really don't apply one of the strange things about this case is the district court held as your hon that mr whyte didn't have spanned standing because he did not tender a purchase price where there is no purchase price square does not provide her purchase price they make their money on the other end after the customer presents the credit card square gets a cut but to sign up for their service unlike these dating services and these other cases you don't pay any money there's nothing on the website that requires or even permits you get a month the terms and conditions the terms and conditions are about paying money later they send you a bill it the end of the month after you've used to their services so at the point where mr white wants to sign up there's no money changing hands he can't provide a purchase price but he hasn't walked through the door i guess that's the argument of the other side he hasn't walked through the door in cyberspace so for example in re craft right where they say you can't you can't just know about the discriminatory swimming pool you have to actually it registered guess of tell or a will home park squares placed a big barrier on that door that you're talking about the barrier is there provision on their website which their language squares language by creating a square account in other words by clicking continue you accept the terms and conditions you confirm you will not accept payments in connection with the following businesses or act business activities twenty eight bankruptcy attorneys now that's exactly what mr white does so use it in his business now square a motion for new trial here attaching a letter from squares council in response to mr white's counsel saying if he were to sign up we w this a fraudulent representation and they'd be right he would be lying and just not only would this be unethical the law to a company like this but he would be subject to discipline by the california state law bar possible prosecution for wire fraud but the that's not important important thing is he's a lawyer he doesn't want a law to a company to sign up for services and then try to any cyberspace exclusion cases that we're aware of it's an excellent question i thought about that there are two cases cited in the record which purported to adopt a bright line rule in price discrimination cases you've got to tender the price well this isn't a price it's going the nation case but anyway they set a bright line rule and that's what they just to court relied on event yes i think there was a conflict in those cases i think at some point the california supreme court will have to resolve that conflict whether this is the case to have that done a leave to got to do in this case i mean this was not a price discrimination case there was no price to tender so i'm not sure getting an opinion back from the california supreme court would be that helpful from california supreme court where the court said clearly a black person would have standing if they went to a to get a drink from a water fountain that said whites only now and then they turn away they don't drink at the fountain all right there's no price to pay right they're not allowed to suppose a black person could that of an attorney admitted to practice law in the state of california yes and the restriction is that he can't use the service in connection with bankruptcy activities among all of the activity licensed to perform and the trial fine that's right so that the occupation or how he uses the occupation that's being restricted well why it has answer that question for us they said bankruptcy attorneys you can't use it in connection with the following businesses or business activities bankruptcy attorneys so if your bankruptcy attorney i i don't i'm not sure if  square would interpret this to allow a bankruptcy attorney who just happens to get a divorce case or something to use it for that i don't know isn't that why he should apply and of the as a controversy find out he has no intention of doing that all he does is bankruptcy law representing creditors that's all he wanted for and it's very useful sort of something like that you know he's got a small to me and practice and occasionally clients come in and they want to use a credit card and he doesn't want to sign up with master card or visa you just use where you just run it through machine it's easy you probably seen him at farmers markets you know it's for little guys he's a little guy know can't use it i mean it's i hate to use the word open and shut up but it it's open and shut on the merits i mean as a matter of fact the reason this case is so important is arbitration provision somebody who's actually signs up could then bring in this action but it have to lie to get to that point he would have to confirm i'm not going to use this for bankruptcy services to get to that point of arbitration he doesn't want to do that but you know and i'm a claim in arbitration  i suppose he could but why should anybody have to do that why should anybody have to lie in order to search your rights i mean suppose this didn't say bankruptcy attorneys it said you're not jewish you have to confirm or you're not black or you're not a woman who you're not thinking of they could add that to the list and the reasoning would be identical nothing would change you have to lie about whether you're credibility would be at issue because a lot of the why is he lying he wants to continue he wants to continue with the practice that's consistent with california law and to the extent that there's a restriction on that  let's continue that's a violation of the what would it be void well why should you have to lie in order to assert your rights there's no guarantee perfect guarantee you would win an arbitration action anyway there is a defense to the occupational  exclusion if they can show reasonable business purpose i don't think they can but why should he take that chance and why they wrote a very stern letter to mr white's trial  counsel if he signs up and he uses this for bankruptcy services he's guilty of fraudulent representation witness what does what do they have against bankruptcy lawyers and what's the problem to deal with bankruptcy lawyers good question service in in those business activity but you just i mean what is that what is their concern about using their service by a bankruptcy lawyer if you want companies right who are the enemies of the big quid a car companies debtors who will pay their debts and people that help them bankruptcy so i suspect that to for square to accommodate and get along with their the big boys they're putting this in that's my suspicion but could a bankruptcy lawyer in a collection action represent the debt or bill and and and collect  that he read the standard terms that everyone who creates an account is required to abide by and then he made the conscious decision not to sign up not to create an account because he would not  he believe the terms were discriminatory and he did not want to subject himself to those terms so if in cyberspace and it says click here but not if you're a woman  do i have standing to sue or do i click through so this is it's an interesting question it's a harder question but it's not this case because this case doesn't say you have to affirm that you're not a bankruptcy attorney this case th terms and i heard him i heard my colleagues say we won't deal with bankruptcy lawyers you have to law you can't come on if you're a bankruptcy attorney those things are faults because that's not what the terms of use require they require that they restrict certain types of transactions and so what they do is they say high risk credit transactions you can't engage in so and so and so so to answer your question your honor if you the the crux the law says you have to personally experience the discrimination you can't simply avoid it like appellant did he said i don't want to be so with us as you're entitled to full and equal  i come to a website which is as women not allowed and if you come to the door at that so he's come to the door and he sees a sign that says we don't give full and equal access to bankruptcy attorney comes to the door and they say you can't come in you're a woman at that point she has suffered the discrimination because she is not permitted to come in he is not refused he is not admission he's not refused admission he's permitted to come  he says i want to use this for my bankruptcy practice and it says now you can come in but not for a bankruptcy practice other people can use it for whatever they want that you can't use it for bankruptcy we guard lists of his occupation he like everyone else has to abide by the restrictions in the on the on the service and so so he can like everyone else he can sign up like everyone else he can use it for those things that are not restricted and the fact that he engages in certain activities for which the service cannot be used does not affect his ability to sign up and use it for other activities and i heard my colleague say that he only engages in bankruptcy law which is not what the record shows the record shows that bankruptcy law is part of his practice so he can sign up and like everyone else he can create an account once he is creating the account and he is subject to the restrictions of use he then can say i have standing because i am subject to the terms i am now restricted i am experiencing the alleged discrimination but by simply saying i'm aware of the terms i refused to be subject to them i walk away that's exactly the the discriminatory act here that if you're that you can't use it for your aka patients you cannot use this service for your occupation of bankruptcy attorney which would be the occupational discrimination that's the discriminatory act why does he have to say ok well i can click but i can't i can't use it for my occupation why why is that necessary in this case well it's now it's exactly analogous to surgery and so but so it's as analogous it could be as could be so in each case they come to the website they read the terms and in order to the can the standard conditions are for you to enter you have to pay what you claim is a discriminatory price for you to enter you can enter to regardless of your occupation but you have to agree that you will abide by our conditions our terms and once you were once you pay the discriminatory price and surgery you have standing discriminatory the courts as that was discriminatory conduct that he was subject to paying the discriminatory price right so then you know it wasn't discriminatory action here it is being subject to the terms that restrict your use of the terms that are discriminatory it's being subject to the terms when i am it is not enough to be under california law it is not enough to be aware of an allege discrimination you have to have suffered the alleged discrimination how so in oz or and then and you disagree with the court's outcome there you go there the person in the three hundred dollars i don't disagree with osborne i mean also born in fact agrees surgery osborne says we look at surgery and we agree that i did not personally experience the discrimination that the court said the person could it have standing even though the person didn't pay that discriminatory and i think that's for a couple of important reason one is that that's a disability case and in fact it limits its holding to the disability context and in the disability case what it says is for we have to look at the a t f because it recognizes that a violation of the a b a is per se a violation of the un racked and it says the a t f has special rules for disabled with service animals and it says in that situation where we're looking at the a t f we look at the a t f says that even asking a disabled person to pay a surcharge for their service animal is a violation so what the point the oz born plaintiff is refused service for refuse the hotel room because he has a service dog and won't pay the fee at that point he suffers discrimination in the each of these cases you have to look at has a plane to suffer discrimination  that it talks about that it talks about it goes it's talks about the a b a and that point and i think the other thing about osborne that's different than the difference what we have is that he's actually he goes to the hotel he suffers humiliation he is refused the room he has his family there he's a disabled person who has to physically be there now they don't go through and say exactly what their thinking is on all of those factors they do point out the disability issue they do limit the holding the disability and the important thing for us here is they say i look at surgery sorry doesn't have standing because surgery went to the website saw the terms walked away that's exactly what our person did he went to the website he saw the terms he walked away now you heard over and over again he'd have to lie he'd have to lie that's what appellant's argument is the crux of he'd have to light a sign up he does not have to light a sign up he can come on in he can walk through the door he simply doesn't get the full benefit of the services just like everybody else there are lots of restrictions on the service because of economic concerns but if there are great ages in a particular transaction he can't use the service he can't use the doesn't want to be an arbitration and this case is this exact case is being another case by his friend is in arbitration now and that's really what we're talking about he doesn't want to be an arbitration but there's no lying to sign up he can sign up and when the subject to the terms then he has standing he has statutory standing because he is subject to the restrictions and that is the point is i'm selfish and certified to the california supreme court there is not any case that explains to us in cyber about cirie osborne which he wants to rely on is also saying i agree with osborne there are maybe hard facts in the other cases there are hard facts here this guy came read the terms opted out he voided the alleged discriminatory the alleges criminalization he avoided it he doesn't have statutes where he's standing just to be aware of alleged discrimination you have to actually personally saw for it he has to have been a member to be subject to the terms when he saw fit to the terms then he can say i'm restricted i suffer restriction but mere knowledge of terms as story says you can't go to the website and turn around once you see terms you don't go in cyberspace pretty much anything goes i don't think it's anything i can't think of one you know offhand but everybody uses the internet now to sign up for things that's true what you're saying is you've got to click yes or whatever you got to get you got an opt in again i  race no matter what the discrimination is and you can't raise you can't raise a claim unless you sign up and that can't be what you want if they're not happy with the california law it's not no matter what the discrimination is again you have to look at the allege your honor said if it says you have to sign up if it says if i'm assuming it's my it's fine and let me ask you this what if swear swear had an office down the block it does and he went he went down to the office he goes down to the office and he says i you know tell me about your service i'd like to sign up for it you know i'm interested i'm a small guy i just have these little business here and they say ok here's our business but your lawyer but you if you engage in bankruptcy know yeah if they would you sign him up if they said you're a woman or your if you're a woman you can't sign up if you're you know something else you can't sign up then he suffered the discrimination what is the point at which she saw for the discrimination if you're a woman that we're refusing you suffer discrimination here we're saying sure come on in sign up use it use our service he's saying oh i don't want to use it never mind i'm leaving he backs out he goes no statutory just like oh into a let's say a bar a judge goes into a bar and the sign says judges cannot drink cannot buy alcohol beverage here because we think judges should be sober do i have to buy a coke in order to s them for that well let me say this if you say hi i'm a judge i'd like to join and tonic and they pour you a gin and tonic and they handed to you you're not discriminated against you haven't spurs me suffer discrimination notwithstanding whatever the sign said and so you do not have statutory standing so i would have to order a drink and be refused you're saying yes so just seeing a sign that says judges are not are not authorized to refuse judges services here i think that was it's not and i think that would not be sufficient to act because you would not have personally suffered discrimination you have to look at the point what is the discrimination have you personally suffered it and so this again this person he's saying i can't cite he's the reason he's saying to you i was  i would have to lie i can't sign up is because he knows it's true but that's not true he doesn't have to lie he can sign up he can use it he just can't use it for everything so he has statutory standing so if he signs up as they do with mr mo issues i think the closest analogy to a bricks and mortar situation is pretty internet i don't know squares off in similar services in a store and there's a big sign on the window come on in and sign up for square no bankruptcy attorneys all right now if mr y goes to that store what's he supposed to go go in anyway and force himself on there try to pass some money to them i mean it's ridiculous i mean that the closest analogy exact in fact is no black is that what they used to say and the supreme court has made it absolutely clear in angelou key and other cases that you have standing in that situation if you want to use the service and can show that mr white show that that's enough now i just want to mention one thing your clients signing up for square service with the intent to violate the applicable terms of service would be fraudulent that's from them that's from squares attorneys ok thank you mr mchugh thank you counsel we appreciate your arguments today interesting case