Opiotennione v. Facebook, Inc.

Filing 70

ORDER by Magistrate Judge Jacqueline Scott Corley denying 44 Motion to File Amicus Curiae Brief; granting 35 Motion to Dismiss. (ahm, COURT STAFF) (Filed on 10/2/2020)

Case 3:19-cv-07185-JSC Document 70 Filed 10/02/20 Page 1 of 9

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NEUHTAH OPIOTENNIONE,

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Plaintiff,

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ORDER RE: MOTION TO DISMISS

v.

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Re: Dkt. No. 35
FACEBOOK, INC.,

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Defendant.

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United States District Court
Northern District of California

Case No. 19-cv-07185-JSC

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Neuhtah Opiotennione challenges the lawfulness of allowing businesses to direct their

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advertising to consumers based on a potential customer’s age or gender. In this case, she alleges

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that Facebook’s advertising practices are unlawful because they led to her not having the

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opportunity to receive certain financial services advertisements in her Facebook Newsfeed based

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on her age and gender. Facebook moves to dismiss Plaintiff’s complaint for lack of Article III and

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statutory standing and for failure to state a claim.1 Having considered the parties’ briefs and

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having had the benefit of oral argument on August 13, 2020, the Court GRANTS the motion to

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dismiss. Plaintiff’s allegations fail to support a plausible inference that she suffered an injury-in-

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fact as a result of Facebook’s advertising tools.
FIRST AMENDED COMPLAINT ALLEGATIONS

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Ms. Opiotennione is a 54-year-old woman who lives in Washington, D.C. and regularly

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uses Facebook. (First Amended Complaint (FAC), Dkt. No. 30 at ¶ 15. 2) “As part of her regular

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use of Facebook, she has been interested in receiving advertising and other information about

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All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §
636(c). (Dkt. Nos. 6 & 20.)
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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.)

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financial services opportunities in Facebook advertisements, and otherwise being treated equally

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to other Facebook users in all aspects of her use of the benefits she receives from Facebook.” (Id.)

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However, she has been denied these advertisements and information due to her age and gender.

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(Id.) Plaintiff identifies examples of ads where “where Facebook and financial services companies

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selected and executed upon age- or gender-restricted audience selections that denied older persons

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and/or women, including Plaintiff, the full and equal accommodations, advantages, facilities, and

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services of Facebook and those companies.” (Id. at ¶¶ 72-76.) She also identifies three specific

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ads that allegedly were not displayed in her News Feed because of her age and/or gender including

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an advertisement for a rewards-based debit card from Aspiration and two advertisements for bank
accounts that she would have been interested in receiving in order to consider pursuing the

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United States District Court
Northern District of California

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opportunity. (Id. at ¶¶ 108-109.) Because she was denied the possibility of receiving these

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advertisements based on her age and gender, she was “denied the full and equal accommodations,

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advantages, facilities, and services of Facebook and the financial services companies that denied

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her valuable advertising and information.” (Id.)

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Facebook uses three “tools” to exclude women and older people from receiving
advertisements, including financial advertisements:

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(1) audience selections that exclude Facebook users from receiving
advertisements based on age or sex; (2) Lookalike Audiences in
which Facebook determines the audience selection based on
Facebook’s analysis of a seed audience provided by the advertiser;
and (3) Facebook’s ad delivery algorithm that determines which users
within an audience selection will actually receive the advertisement.

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(Id. at ¶ 32.)
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The audience selection tool requires advertisers to “specify the parameters of the target
audience of Facebook users who will be eligible to receive the advertisement.” (Id. at ¶ 33.) The
advertiser “is required to make three selections that establish the basic parameters of the audience

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selection: (1) age; (2) gender; and (3) location. These audience selection tools are presented to
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advertisers through drop down menus that make clear to advertisers that they can include or
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exclude persons with certain ages and/or genders from their audience selections. These tools
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classify, categorize, and segregate Facebook users based on their age and/or gender.” (Id. at ¶ 36.)

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While the default is for individuals 18-65 plus and all genders, “Facebook strongly encourages”

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advertisers to narrow the age/gender range through among other things its “Facebook Blueprint”

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course, which describes “How to Find Your Customers on Facebook.” (Id. at ¶¶ 39-40, 44.) “Any

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Facebook user who is not within the relevant audience selection will not have the opportunity to

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receive that specific paid ad[].” (Id. at ¶ 33.)
Under the Lookalike Audience tool, “advertisers provide Facebook with a list of Facebook

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users whom they believe are the type of customers they want to reach (i.e. the seed audience), and

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then Facebook applies its own analysis and algorithm to identify a larger audience that resembles

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the seed audience (i.e. the Lookalike Audience).” (Id. at ¶ 56.) The advertisement is then sent to

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the larger Lookalike Audience. (Id.) “Age and gender are two critical pieces of information that

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United States District Court
Northern District of California

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Facebook uses to determine which Facebook users resemble the advertiser’s seed audience and

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will, in turn, be included in the Lookalike Audience that Facebook creates based on its own

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analysis and algorithm.” (Id.)

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Facebook’s algorithm tool “uses many types of data, including data on the past

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performance of certain types of advertisements and the ongoing performance of certain

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advertisements, to determine which users will receive any given advertisement, including financial

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services advertisements.” (Id. at ¶ 64.) The algorithm “directly relies upon both the age and

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gender of Facebook users to determine which users will actually receive any given advertisement,

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and Facebook uses both the age and gender of its users to determine who will actually receive

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advertisements regardless of whether the advertiser directs Facebook to limit the age or gender

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of its audience selection.” (Id. at ¶ 65.)

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PROCEDURAL BACKGROUND
Plaintiff filed this action in October 2019 alleging two claims for relief under California

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law: (1) age and sex discrimination in violation of the Unruh Civil Rights Act, California Civil

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Code §§ 51, 52(a); and (2) age and sex discrimination in violation of California Civil Code §§

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51.5, 52(a). Facebook thereafter filed a motion to dismiss and Plaintiffs filed the now operative

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First Amended Complaint which added claims for age and sex discrimination under the D.C.

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Human Rights Act, D.C. Code §§ 2-1402.31 (third claim) and the D.C. Consumer Protections and
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Procedures Act, D.C. Code §§ 2-1402.31 (fourth claim). Facebook responded by filing the now

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pending motion to dismiss. (Dkt. No. 35.) The motion is fully briefed and Upturn, Inc., and the

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Lawyers’ Committee for Civil Rights under Law, Inc., have filed separate motions for leave to file

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a brief of amicus curie in support of Plaintiff’s opposition brief. (Dkt. Nos. 39, 44, 46, 62.)
SUBJECT MATTER JURISDICTION

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“Federal courts are courts of limited jurisdiction. They possess only that power authorized

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by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

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(1994). Plaintiff alleges and the Court finds that it has subject matter jurisdiction of this action

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under 28 U.S.C. § 1332(d)(2), the Class Action Fairness Act (CAFA). (FAC at ¶ 10.) CAFA
vests federal courts with original jurisdiction over class actions in which: (1) the amount in

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United States District Court
Northern District of California

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controversy exceeds $5,000,000; (2) diversity of citizenship exists between at least one plaintiff

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and one defendant; and (3) the number of plaintiffs in the class is at least one hundred. 28 U.S.C.

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§ 1332(d)(2), (5), (6).

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STANDING
“Standing is a necessary element of federal-court jurisdiction” and a “threshold question

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in every federal case.” Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009) (citing Warth v.

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Seldin, 422 U.S. 490, 498 (1975)). Article III standing consists of three “irreducible constitutional

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minimum” requirements: “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly

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traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

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favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). These

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elements are often referred to as injury in fact, causation, and redressability. See, e.g., Planned

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Parenthood of Greater Washington & N. Idaho v. U.S. Dep’t of Health & Human Servs., 946 F.3d

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1100, 1108 (9th Cir. 2020). Plaintiff, as the party invoking federal jurisdiction, bears the burden

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of establishing the existence of Article III standing and, at the pleading stage, “must clearly []

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allege facts demonstrating each element.” Spokeo, 136 S. Ct. at 1547 (internal quotation marks

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and citation omitted); see also Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983) (“The

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facts to show standing must be clearly apparent on the face of the complaint.”).

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An injury in fact is “an invasion of a legally protected interest” that is (1) “concrete,” (2)
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“particularized,” and (3) “actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct.

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at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). To be “particularized,” an

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injury “must affect the plaintiff in a personal and individual way,” while “concreteness” requires

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an injury to be “‘de facto’; that is, it must actually exist.” Id. at 1548 (internal citation omitted).

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The requirement that an injury be “actual or imminent” “ensure[s] that the alleged injury is not too

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speculative for Article III purposes—that the injury is certainly impending.” Clapper v. Amnesty

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Int’l USA, 568 U.S. 398, 409 (2013). Further, there must be a sufficient “causal connection

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between the injury and the conduct complained of.” United States v. Hays, 515 U.S. 737, 743

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(1995). Standing theories that depend on a “speculative chain of possibilities”—such as those
that turn on “the decisions of independent actors”—lack the necessary causal connection.

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United States District Court
Northern District of California

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Clapper, 568 U.S. at 414; see also Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 447

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(9th Cir. 1994) (“[W]hen standing hinges on choices made by a third party, plaintiff must “adduce

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facts showing that those choices have been or will be made in such manner as to produce

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causation and permit redressability of injury.”) (quoting Lujan, 504 U.S. at 562).

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Plaintiff has not met her burden of alleging facts sufficient to support an inference of injury

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in fact. She contends that because she identified advertisements that could not appear in her News

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Feed because of her age or gender she has suffered an injury in fact, namely, being subject to

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discrimination. (Dkt. No. 39 at 14-15.) These allegations, however, are merely a generalized

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claim of “unequal treatment” that does not rise to the level of an Article III injury in fact. In

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Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003), for example, the plaintiff non-native Hawaiian

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brought an equal protection challenge to Hawaii Constitution provisions which created agencies

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providing special benefits to natives. The Ninth Circuit concluded that the plaintiff lacked Article

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III standing because “the existence of the classification [favoring natives over non-natives] is not

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sufficient to recognize standing” and instead, “presents only a generalized grievance.” Id. at 947;

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see also id. at 940 (“The Supreme Court has repeatedly refused to recognize a generalized

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grievance against allegedly illegal government conduct as sufficient to confer standing.”) (citing

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Hays, 515 U.S. at 743). The Carroll plaintiff’s claim failed because he did not “provide any

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evidence of an injury . . . other than the classification itself”; for example, “[h]e offer[ed] no
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evidence that he is ‘able and ready’ to compete for, or receive, an OHA benefit” or “even

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identified a program that he would be interested in receiving.” Carroll, 342 F.3d at 947. In the

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absence of such allegations he had not shown that he was hurt by the claimed wrongs. Id. at 947.

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The same is true here. Plaintiff contends she has plausibly raised an inference of an injury

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in fact because the FAC gives examples of financial advertisements that Facebook actually denied

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her. (Dkt. No. 39 at 14 (citing FAC ¶¶ 73-74.)) That is no different, however, from the Carroll

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plaintiff merely identifying programs limited to native Hawaiians. For example, one of the

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advertisements Plaintiff identifies is by a military organization advertising loans available to

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military officers Ranks E-5 Through O-4. (FAC ¶ 76; Dkt. No. 69 at 5:16-25.) The only injury
Plaintiff—who does not allege to be in the military, let alone an officer with an eligible rank—can

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Northern District of California

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have suffered because of being denied the possibility of having that advertisement appear in her

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News Feed is the existence of the age-specific restriction. Under Plaintiff’s theory, any person

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who was excluded from the possibility of receiving that advertisement because of her age would

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have standing. Not so.

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Plaintiff does identify three advertisements which she generally alleges she “would have

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been interested in receiving in order to consider pursuing the opportunity” (FAC at ¶¶ 108-109);

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however, she does not allege that she was qualified for and interested in actually applying for the

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product offered. See Carroll, 342 F.3d at 947 (holding that the plaintiff who offered no “evidence

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that he is ‘able and ready’ to compete for, or receive, an OHA benefit” did not suffer an injury);

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see also Bradley v. T-Mobile US, Inc., No. 17-CV-07232-BLF, 2020 WL 1233924, at *10 (N.D.

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Cal. Mar. 13, 2020) (concluding that plaintiffs challenging same Facebook advertising practices

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that allowed companies to restrict job applications based on age had to “show they were qualified

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for and interested in the particular jobs subject to Defendants’ allegedly discriminatory practices”

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to establish injury in fact); compare with White v. Square, Inc., 891 F.3d 1174, 1176–77 (9th Cir.

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2018) (holding that the plaintiff “sought to use Square’s services, but was unable to do so because

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of its discriminatory policy against bankruptcy attorneys”).

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Plaintiff’s reliance on Unruh Act disability access cases is unpersuasive. In Doran v. 7Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008), for example, the court concluded that the plaintiff
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wheel chair user had sufficiently shown an injury in fact by alleging that he had personally visited

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a 7-11 store and encountered architectural barriers and that the existence of those barriers deterred

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him from continuing to visit the store. Id. at 1040-41; see also Kirola v. City & Cty. of San

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Francisco, 860 F.3d 1164, 1175 (9th Cir. 2017) (“The standard for injury in fact is whether Kirola

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has encountered at least one barrier that interfered with her access to the particular public facility

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and whether she intends to return or is deterred from returning to that facility.”). The

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discriminatory act—the architectural barriers—prevented the plaintiffs from visiting the stores.

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Under Plaintiff’s theory, being denied the possibility of having advertisements for products in

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which you have no interest or eligibility appear in one’s Facebook News Feed is tantamount to

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being denied the ability to visit a store that one actually wants to visit. That theory is untethered

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Northern District of California

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from the law.

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Finally, while the California Supreme Court in Angelucci v. Century Supper Club, 41 Cal.

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4th 160 (2007), noted that the Unruh Act “renders ‘arbitrary sex discrimination by businesses ...

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per se injurious,’” it still required allegations of injury. Id. at 174 (quoting Koire v. Metro Car

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Wash, 40 Cal. 3d 24, 33 (1985)). The plaintiffs alleged that they were “subjected to, and paid,

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defendant’s gender-based price differential.” Angelucci, 41 Cal. 4th at 175–76 (“a plaintiff cannot

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sue for discrimination in the abstract, but must actually suffer the discriminatory conduct.”).

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Likewise, in Koire, the “plaintiff was adversely affected by the price discounts. His female peers

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were admitted to the bar free, while he had to pay. On the days he visited the car washes, he had

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to pay more than any woman customer, based solely on his sex.” Koire, 40 Cal. 3d at 34.

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The Court thus concludes that Plaintiff’s general grievance about being denied “full and

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equal access” without alleging facts that support an inference that she was personally injured by

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that denial fails to demonstrate an injury in fact sufficient to confer Article III standing.

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Plaintiff’s second alleged injury—stigmatic harm—fares no better. Plaintiff alleges “she

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personally suffered discrimination in Facebook’s public accommodations when she was denied a

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primary benefit or service of Facebook—financial services advertising and information—based on

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age and gender, causing her stigmatic harm.” (Dkt. No. 39 at 16:2-4.) However, stigmatic harm,

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whereby members of the disfavored group are stigmatized “as innately inferior and therefore as
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less worthy participants in the political community,” Heckler v. Mathews, 465 U.S. 728, 739

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(1984) (internal citation and quotation marks omitted), “accords a basis for standing only to those

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persons who are personally denied equal treatment by the challenged discriminatory conduct,”

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Allen v. Wright, 468 U.S. 737, 755 (1984) (internal citation and quotation marks omitted). That is,

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it still requires a personal denial of equal treatment, which as discussed supra, Plaintiff has not

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alleged. See Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 596 (10th Cir.

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1996) (“mere receipt by plaintiffs of the discriminatory advertisements in this case could cause

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only the kind of ‘abstract stigmatic injury’ held insufficient to establish standing in Allen.”).

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Plaintiff’s third alleged injury is that she was economically harmed because the
discrimination “made it harder for older persons and women to compete for and obtain financial

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Northern District of California

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services opportunities” including “cheaper, better, or more appropriate financial services.” (FAC

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at ¶ 114.) However, standing based on a denial of the opportunity to compete requires a

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demonstration that the plaintiff was “able and ready” to do so, Gratz v. Bollinger, 539 U.S. 244,

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262 (2003), and as discussed, supra, Plaintiff has not alleged facts that support such an inference.

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Finally, Plaintiff generally alleges injury based on the denial of the opportunity to obtain a

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benefit. (FAC ¶ 114.) While “the denial of an opportunity to obtain a benefit is itself an injury in

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fact,” standing for such a claim likewise requires at a minimum that the plaintiff plausibly allege

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that she is able and ready to apply for the benefit. Bradley, 2020 WL 1233924, at *8; see also id.

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at *10 (collecting cases). Plaintiff has not done so.

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CONCLUSION

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Having concluded that Plaintiff has not alleged facts that support a finding that she

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suffered an injury in fact, Facebook’s motion to dismiss for lack of standing must be granted.

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While Facebook argues that there are myriad other reasons why her claims fail, including

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additional standing problems, the Court declines to address them given its conclusion that Plaintiff

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has not even made it past the first step. The motions for leave to file amicus briefs are denied as

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moot since they relate to the Rule 12(b)(6) motion to dismiss.

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Plaintiff’s amended complaint, if any, is due within 30 days of this order.

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This Order disposes of Docket Nos. 35, 44, and 46.

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IT IS SO ORDERED.

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Dated: October 2, 2020

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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