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1 JONATHAN H. BLAVIN (State Bar No. 230269)
jonathan.blavin@mto.com
2 J. MAX ROSEN (State Bar No. 310789) ELECTRONICALLY
max.rosen@mto.com
3 MUNGER, TOLLES & OLSON LLP F I L E D
Superior Court of California,
560 Mission Street, Twenty-Seventh Floor County of San Francisco
4 San Francisco, CA 94105-2907
Telephone: (415) 512-4000 04/16/2020
Clerk of the Court
5 Facsimile: (415) 512-4077 BY: ERNALYN BURA
Deputy Clerk
6 ROSE LEDA EHLER (State Bar No. 296523)
rose.ehler@mto.com
7 MARGARET H. THOMPSON (State Bar No. 313898)
maggie.thompson@mto.com
8 MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue
9 Fiftieth Floor
Los Angeles, California 90071-3426
10 Telephone: (213) 683-9100
Facsimile: (213) 687-3702
11
Attorneys for Defendant SQUARE, INC.
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
COUNTY OF SAN FRANCISCO
14
15
ROBERT WHITE, an individual, Case No. CGC-19-580267
16
Plaintiff, DECLARATION OF JONATHAN H.
17 BLAVIN IN SUPPORT OF SQUARE,
vs. INC.’S DEMURRER TO AND MOTION
18 TO STRIKE PLAINTIFF’S FIRST
SQUARE, INC., a Delaware corporation, AMENDED COMPLAINT
19
Defendant. [Filed concurrently with Request for Judicial
20 Notice; Demurrer; Motion to Strike; Meet-and-
Confer Declaration of Rose Leda Ehler;
21 [Proposed] Order on Motion to Strike;
[Proposed] Order on Demurrer]
22
Judge: Hon. Ethan P. Schulman
23 Date: July 10, 2020
Time: 9:30 a.m.
24 Dept.: 302
25 RESERVATION NO.: 03170710-05
26 Action Filed: October 24, 2019
Trial Date: None Set
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BLAVIN DECL. ISO SQUARE’S DEMURRER TO AND MOTION TO STRIKE FAC
1 DECLARATION OF JONATHAN H. BLAVIN
2 I, Jonathan H. Blavin, hereby declare:
3 1. I am admitted to practice before all of the courts of the State of California and this
4 Court. I am an attorney at the law firm of Munger, Tolles & Olson LLP and counsel of record for
5 Defendant Square, Inc. (“Square”) in the above-captioned matter. I have personal knowledge of
6 the facts set forth in this declaration, and, if called as a witness, I could and would testify
7 competently to the matters set forth herein.
8 2. Attached to this declaration as Exhibit 1 is a true and correct copy of docket entry
9 no. 1 from White v. Square, Inc., No. 4:15-cv-04539-JST, Northern District of California
10 (Complaint for Unruh Law Civil Rights Violations).
11 3. Attached to this declaration as Exhibit 2 is a true and correct copy of docket entry
12 no. 39 from White v. Square, Inc., No. 4:15-cv-04539-JST, Northern District of California (Second
13 Amended Complaint).
14 4. Attached to this declaration as Exhibit 3 is a true and correct copy of docket entry
15 no. 57 from White v. Square, Inc., No. 4:15-cv-04539-JST, Northern District of California
16 (Corrected Motion for Leave to File Motion for Reconsideration).
17 5. Attached to this declaration as Exhibit 4 is a true and correct copy of docket entry
18 no. 58 from White v. Square, Inc., No. 4:15-cv-04539-JST, Northern District of California (Order
19 Denying Request for Leave to File Motion for Reconsideration).
20 6. Attached to this declaration as Exhibit 5 is a true and correct copy of docket entry
21 no. 61 from White v. Square, Inc., No. 4:15-cv-04539-JST, Northern District of California
22 (Bankruptcy Law Firm’s Notice of Motion and Motion for New Trial).
23 7. Attached to this declaration as Exhibit 6 is a true and correct copy of docket entry
24 no. 66 from White v. Square, Inc., No. 4:15-cv-04539-JST, Northern District of California (Order
25 Denying Motion for New Trial).
26 8. Attached to this declaration as Exhibit 7 is a true and correct copy of docket entry
27 no. 67 from White v. Square, Inc., No. 4:15-cv-04539-JST, Northern District of California (Plaintiff
28 White’s Motion for Leave to File a Motion for Reconsideration).
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BLAVIN DECL. ISO SQUARE’S DEMURRER TO AND MOTION TO STRIKE FAC
1 9. Attached to this declaration as Exhibit 8 is a true and correct copy of docket entry
2 no. 68 from White v. Square, Inc., No. 4:15-cv-04539-JST, Northern District of California (Order
3 Denying Motion for Reconsideration Re: ECF No. 67).
4 10. Attached to this declaration as Exhibit 9 is a true and correct copy of correct copy
5 of excerpts of docket entry no. 4-1 from White v. Square, Inc., No. 16-17137, 9th Circuit Court of
6 Appeals (Appellant’s Motion for Court to Determine Its Own Subject Matter Jurisdiction).
7 11. Attached to this declaration as Exhibit 10 is a true and correct copy of docket entry
8 no. 17 from White v. Square, Inc., No. 16-17137, 9th Circuit Court of Appeals (Order).
9 12. Attached to this declaration as Exhibit 11 is a true and correct copy of docket entry
10 no. 82 from White v. Square, Inc., 4:15-cv-04539-JST, Northern District of California (Notice of
11 Voluntary Dismissal Pursuant to FRCP 41(a)(1)(A)(i)).
12 13. Attached to this declaration as Exhibit 12 is a true and correct copy of excerpts of
13 docket entry no. 83-1 from White v. Square, Inc., No. 4:15-cv-04539-JST, Northern District of
14 California (Declaration of Rose Leda Ehler in Support of Square, Inc.’s Motion for Costs and Fees
15 Pursuant to Fed. R. Civ. P. 41(d)).
16 14. Attached to this declaration as Exhibit 13 is a true and correct copy of excerpts of
17 Plaintiff’s Opening Brief on the Merits in White v. Square, Inc., No. S249248, California Supreme
18 Court.
19 I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct.
21 Executed on this 16th day of April, 2020, at San Francisco, California.
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25 Jonathan H. Blavin
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BLAVIN DECL. ISO SQUARE’S DEMURRER TO AND MOTION TO STRIKE FAC
EXHIBIT 1
Case 4:15-cv-04539-JST Document 1 Filed 10/01/15 Page 1 of 7
1 WILLIAM McGRANE [057761]
McGRANE LLP
2 Four Embarcadero Center, Suite 1400
3 San Francisco, California 94111
(415) 292-4807
4 william.mcgrane@mcgranellp.com
5 FRANK R. UBHAUS [046085]
6 BERLINER COHEN
10 Almaden Boulevard, 11th Floor
7 San Jose, CA 95113
(408) 286-5800
8 frank.ubhaus@berliner.com
9
Attorneys for Plaintiff Robert White, an individual
10 and all others similarly situated
11
12 UNITED STATES DISTRICT COURT
13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
14 SAN FRANCISCO DIVISION
15
16 ROBERT WHITE, an individual, and all others Case No.
similarly situated
17
CLASS ACTION
Plaintiff,
18
v. JURY TRIAL DEMANDED
19
SQUARE, INC., a Delaware corporation, COMPLAINT FOR UNRUH LAW
20 CIVIL RIGHTS VIOLATIONS
Defendant.
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Complaint for Unruh Law Civil Rights Violations
Case 4:15-cv-04539-JST Document 1 Filed 10/01/15 Page 2 of 7
1 Comes now plaintiff Robert White (Bankruptcy Law Firm) on behalf of himself
2 and all others similarly situated and alleges as follows:
3 The Parties
4 1. Bankruptcy Law Firm is an individual with his principal place of business
5 in San Francisco, California.
6 2. Defendant Square, Inc. (Credit Card Company) is a Delaware corporation
7 registered with the California Secretary of State as a foreign corporation qualified to do
8 business in the State of California and which has its principal place of business in San
9 Francisco, California.
10 Jurisdiction and Venue
11 3. Jurisdiction is present here based on 28 U.S.C. §§ 1332(d)(2), 1367(a).
12 4. Venue is present here based on 28 U.S.C. § 1391(d).
13 Charging Allegations
14 5. Credit Card Company is a business establishment (as that term is
15 otherwise defined in California Civil Code section 51(b)) within the jurisdiction of the
16 State of California, which business establishment is engaged in providing
17 accommodations, advantages, facilities, privileges and/or services (Accommodations) to
18 other persons and entities within the jurisdiction of the State of California, specifically
19 including but not limited to citizens of states within the United States other than the states
20 of California and Delaware, within the jurisdiction of the State of California (Persons) by
21 way of its, inter alia, enabling such Persons to accept electronic payments without
22 themselves directly opening up a merchant account with any Visa or MasterCard member
23 bank (Square Account). See https://squareup.com/ (Square Website) for a fuller
24 description of the nature of what a Square Account consists of.
25 6. As of today, October 1, 2015, Section 6 of the Square Seller Agreement
26 (Bad List) reads, in pertinent part, as follows:
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1
First Amended Complaint for Unruh Law Civil Rights Violations
Case 4:15-cv-04539-JST Document 1 Filed 10/01/15 Page 3 of 7
1 By creating a Square Account, you … confirm that you will not
accept payments in connection with the following businesses or
2 business activities: (1) any illegal activity or goods, (2) buyers or
3 membership clubs, including dues associated with such clubs, (3)
credit counseling or credit repair agencies, (4) credit protection or
4 identity theft protection services, (5) direct marketing or
subscription offers or services, (6) infomercial sales, (7)
5 internet/mail order/telephone order pharmacies or pharmacy
6 referral services (where fulfillment of medication is performed
with an internet or telephone consultation, absent a physical visit
7 with a physician including re-importation of pharmaceuticals from
foreign countries), (8) unauthorized multi-level marketing
8 businesses, (9) inbound or outbound telemarketers, (10) prepaid
9 phone cards or phone services, (11) rebate based businesses, (12)
up-sell merchants, (13) bill payment services, (14) betting,
10 including lottery tickets, casino gaming chips, off-track betting,
and wagers at races, (15) manual or automated cash disbursements,
11 (16) prepaid cards, checks, or other financial merchandise or
12 services, (17) sales of money-orders or foreign currency, (18) wire
transfer money orders, (19) high-risk products and services,
13 including telemarketing sales, (20) automated fuel dispensers, (21)
adult entertainment oriented products or services (in any medium,
14 including internet, telephone, or printed material), (22) sales of (i)
15 firearms, firearm parts or hardware, and ammunition; or (ii)
weapons and other devices designed to cause physical injury (23)
16 internet/mail order/telephone order cigarette, tobacco or vaporizer
sales, (24) drug paraphernalia, (25) occult materials, (26) hate or
17 harmful products, (27) escort services, or (28) bankruptcy
18 attorneys or collection agencies engaged in the collection of debt.
19 7. With the sole exception of Section 6(1) of Bad List (prohibiting
20 acceptance of payments in connection with any business or business activities involving
21 illegal activity or illegal goods), each and every other category of business/business
22 activity whose business/business activity Credit Card Company deems a “business [that]
23 is prohibited” is either so vaguely described as to be unintelligible or else constitutes an
24 entirely lawful business/business activity under any and all applicable federal and state
25 laws. This specifically includes but is not limited to the business/business activity of
26 Bankruptcy Law Firm, which entity’s business establishment sometimes involves
27 representation of creditors in federal bankruptcy proceedings and which business
28 establishment requires licensure by the State Bar, admission to the Federal Bar of the
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First Amended Complaint for Unruh Law Civil Rights Violations
Case 4:15-cv-04539-JST Document 1 Filed 10/01/15 Page 4 of 7
1 Ninth Circuit as well as the Federal Bar of the Northern District of California and other
2 federal districts and which business establishment is otherwise specifically protected
3 from discrimination of the sort being practiced against Bankruptcy Law Firm here by,
4 inter alia, 11 U.S.C. § 525, as well as by the Unruh Civil Rights Act (Civil Code §§ 51
5 and 52 [Unruh Law]).
6 8. In Bankruptcy Law Firm’s particular case, Bankruptcy Law Firm’s
7 principal, Bob White, is a personal friend and business colleague of Jeremy Katz, a
8 member of the State Bar and a principal in shierkatz, RLLP, which latter entity is a
9 plaintiff in the related case of shierkatz v. Square, Inc., United States District Court, Case
10 No.
11 3:15-cv 02202 JST (the SK Case).
12 9. Mr. White has previously read this District Court’s file in the SK Case and
13 has thereby become aware of Bad List and, in addition, after first checking to see that Bad
14 List remains unchanged from the date the SK Case was first filed, he has thereby been
15 dissuaded from now seeking to become a Credit Card Company customer given the fact
16 his practice area is similar to that of shierkatz, RLLP and, as such, he falls within
17 Category 28 of Bad List.
18 10. Bankruptcy Law Firm never agreed to arbitrate anything whatsoever with
19 Credit Card Company in this latter regard. Ever.
20 Class Allegations
21 11. Bankruptcy Law Firm brings this action on behalf of himself and all others
22 similarly situated.
23 12. The class represented by Bankruptcy Law Firm (Class) is comprised of all
24 Persons other than persons who fall within Section 6(1) of Bad List who have become
25 aware of Bad List and thereby been dissuaded from either (i) hitting the Continue button
26 on Credit Card Company’s website or (ii) otherwise attempting in any other possible
27 manner to become customers of Credit Card Company, as a result of their obtaining such
28 off-putting awareness of Bad List from any source whatsoever (Class members), which
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First Amended Complaint for Unruh Law Civil Rights Violations
Case 4:15-cv-04539-JST Document 1 Filed 10/01/15 Page 5 of 7
1 Class members include at least some Persons who are citizens of states within the United
2 States but who are not, in fact, also citizens of either California or Delaware.
3 13. The Class period extends back to cover all Class members who ever
4 became aware of Bad List at any time prior to the filing of this complaint as well as to
5 any Class members who become aware of Bad List while maintaining Bad List remains
6 the operative policy of Credit Card Company at any time in the future prior to
7 abandonment of Bad List or, alternatively, the certification of a Class (Class Period).
8 14. On information and belief Bankruptcy Law Firm alleges that there are tens
9 of thousands of Class members.
10 15. On information and belief, Bankruptcy Law Firm estimates that Credit
11 Card Company has incurred not less than $100,000,000 dollars in minimum statutory
12 liability to Class members during Class Period.
13 16. Questions of law and fact common to the Class predominate over
14 questions affecting only individual members, including, inter alia: Whether Class
15 members are entitled to recover not less than their Unruh Law minimum statutory
16 damages of $4,000 each.
17 17. The claims of Bankruptcy Law Firm are typical of the claims of the Class
18 members as described above.
19 18. Treating this dispute as a class action is a superior method of adjudication
20 since the joinder of all possible absent Class members would be impractical.
21 19. Additionally, the amount of each restitutionary payment would be modest
22 on an individual basis, although significant in the aggregate. It would be impractical for
23 most of Class members to address the Credit Card Company’s wrongdoings individually.
24 There should be no significant difficulties in managing this case as a class action.
25 20. Bankruptcy Law Firm can and will fairly and adequately represent and
26 protect the interests of Class members. Bankruptcy Law Firm has retained competent
27 and experienced outside counsel, who will vigorously represent the interests of the Class.
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First Amended Complaint for Unruh Law Civil Rights Violations
Case 4:15-cv-04539-JST Document 1 Filed 10/01/15 Page 6 of 7
1 Sole Claim for Relief
2 (Minimum Statutory Damages [Violation of Unruh Law])
3 21. Bankruptcy Law Firm realleges ¶¶ 1–20.
4 22. Credit Card Company’s maintenance of Bad List is and was a violation of
5 Unruh Law entitling Bankruptcy Law Firm to not less than $4,000 in minimum statutory
6 damages per offense under Unruh Law and the Class to its own minimum statutory
7 damages of $4,000 per Class member per offense under Unruh Law.
8 WHEREFORE, Bankruptcy Law Firm and Class pray judgment as follows:
9 1. That Class described herein be certified; that Bankruptcy Law Firm be
10 designated lead plaintiff and that Bankruptcy Law Firm’s counsel be appointed Class
11 counsel;
12 2. That the Bankruptcy Law Firm and Class be awarded statutory damages in
13 an amount to be proven at trial pursuant to Unruh Law.
14 3. For an award of attorney fees and costs, including but not limited to
15 statutory attorney fees and costs;
16 4. For such other and further relief as the Court may deem just and proper.
17 Dated: October 1, 2015 McGRANE LLP
BERLINER COHEN
18
By: /s/ William McGrane
19
William McGrane
20 Attorneys for Plaintiff Robert White and all others
similarly situated
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First Amended Complaint for Unruh Law Civil Rights Violations
Case 4:15-cv-04539-JST Document 1 Filed 10/01/15 Page 7 of 7
1 DEMAND FOR JURY TRIAL
2 Bankruptcy Law Firm and the Class hereby demand a trial by jury.
3 Dated: October 1, 2015 McGRANE LLP
BERLINER COHEN
4
By: /s/ William McGrane
5
William McGrane
6 Attorneys for Plaintiff Robert White and all others
similarly situated
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First Amended Complaint for Unruh Law Civil Rights Violations
EXHIBIT 2
Case 3:15-cv-04539-JST Document 39 Filed 04/29/16 Page 1 of 14
1 WILLIAM McGRANE [057761]
McGRANE PC
2 Four Embarcadero Center, Suite 1400
3 San Francisco, California 94111
(415) 292-4807
4 william.mcgrane@mcgranepc.com
5 FRANK R. UBHAUS [046085]
6 BERLINER COHEN LLP
10 Almaden Boulevard, 11th Floor
7 San Jose, California 95113
(408) 286-5800
8 frank.ubhaus@berliner.com
9
Attorneys for plaintiff Robert White, an individual,
10 and all others similarly situated
11
12 UNITED STATES DISTRICT COURT
13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
14 SAN FRANCISCO DIVISION
15
16 ROBERT WHITE, an individual, and all others Case No. 3:15-cv-04539-JST
similarly situated
17
CLASS ACTION
Plaintiff,
18
v. JURY TRIAL DEMANDED
19
SQUARE, INC., a Delaware corporation, SECOND AMENDED COMPLAINT
20
Defendant.
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Second Amended Complaint
White v Square, Inc., Case No. 3:15-cv-04539-JST
Case 3:15-cv-04539-JST Document 39 Filed 04/29/16 Page 2 of 14
1 Comes now plaintiff Robert White on behalf of himself and all others similarly
2 situated and alleges as follows:
3 The Parties
4 1. Plaintiff Robert White (hereafter sometimes referred to as Bankruptcy
5 Law Firm) is an individual with his principal place of business in San Francisco,
6 California who, inter alia, is personally a member of the bar of the Northern District of
7 California and who himself actively practices bankruptcy law on behalf of his creditor
8 clients who are parties to matters pending before the federal bankruptcy courts.
9 2. Defendant Square, Inc. (Credit Card Company) is a Delaware corporation
10 registered with the California Secretary of State as a foreign corporation qualified to do
11 business in the State of California with its principal place of business in San Francisco,
12 California.
13 Jurisdiction and Venue
14 3. Jurisdiction is present here based on 28 U.S.C. §§ 1332(d)(2), 1367(a).
15 4. Venue is present here based on 28 U.S.C. § 1391(d).
16 Charging Allegations
17 5. Credit Card Company is a business establishment (as that term is
18 otherwise defined in California Civil Code section 51(b)) within the jurisdiction of the
19 State of California, which business establishment is engaged in providing public
20 accommodations, advantages, facilities, privileges and/or services to other persons and
21 entities within the jurisdiction of the State of California (specifically including but not
22 limited to citizens of all the states within the United States including citizens of states
23 other than just California and Delaware) by way of its, inter alia, enabling such persons
24 or entities to accept electronic payments without themselves directly opening up a
25 merchant account with any Visa or MasterCard member bank (Square Seller Account).
26 See https://squareup.com (Square Website) for a fuller description of what a Square
27 Seller Account (as same is defined by the Square Seller Agreement) consists of.
28
1
Second Amended Complaint
White v Square, Inc., Case No. 3:15-cv-04539-JST
Case 3:15-cv-04539-JST Document 39 Filed 04/29/16 Page 3 of 14
1 6. At all times relevant herein Section 6 of the Square Seller Agreement
2 (Refusal of Service List) has read and continues to read, inter alia, as follows:
3 By creating a Square Account, you … 0.0confirm that you will not
accept payments in connection with the following businesses or
4 business activities: (1) any illegal activity or goods, (2) buyers or
5 membership clubs, including dues associated with such clubs, (3)
credit counseling or credit repair agencies, (4) credit protection or
6 identity theft protection services, (5) direct marketing or
subscription offers or services, (6) infomercial sales, (7)
7 internet/mail order/telephone order pharmacies or pharmacy referral
8 services (where fulfillment of medication is performed with an
internet or telephone consultation, absent a physical visit with a
9 physician including re-importation of pharmaceuticals from foreign
countries), (8) unauthorized multi-level marketing businesses, (9)
10 inbound or outbound telemarketers, (10) prepaid phone cards or
11 phone services, (11) rebate based businesses, (12) up-sell
merchants, (13) bill payment services, (14) betting, including lottery
12 tickets, casino gaming chips, off-track betting, and wagers at races,
(15) manual or automated cash disbursements, (16) prepaid cards,
13 checks, or other financial merchandise or services, (17) sales of
14 money-orders or foreign currency, (18) wire transfer money orders,
(19) high-risk products and services, including telemarketing sales,
15 (20) automated fuel dispensers, (21) adult entertainment oriented
products or services (in any medium, including internet, telephone,
16 or printed material), (22) sales of (i) firearms, firearm parts or
17 hardware, and ammunition; or (ii) weapons and other devices
designed to cause physical injury (23) internet/mail order/telephone
18 order cigarette, tobacco or vaporizer sales, (24) drug paraphernalia,
(25) occult materials, (26) hate or harmful products, (27) escort
19 services, or (28) bankruptcy attorneys or collection agencies
20 engaged in the collection of debt.
21 7. With the sole exception of Category 1 of Refusal of Service List
22 (prohibiting acceptance of payments in connection with any business or business
23 activities involving illegal activity or illegal goods), each and every other category of
24 Refusal of Service List is either so vaguely described as to be unintelligible or else
25 constitutes an entirely lawful business/business activity under any and all applicable
26 federal and state laws. This specifically includes but is not limited to the business
27 activity of Bankruptcy Law Firm, which business establishment is specifically protected
28
2
Second Amended Complaint
White v Square, Inc., Case No. 3:15-cv-04539-JST
Case 3:15-cv-04539-JST Document 39 Filed 04/29/16 Page 4 of 14
1 from occupational discrimination of the sort being practiced against Bankruptcy Law
2 Firm here by the California Unruh Civil Rights Act (California Civil Code §§ 51 and 52
3 [Unruh Law]).
4 8. Robert White first learned, by word of mouth, that, in violation of his
5 personal, specific Unruh Law civil rights to be free from occupational discrimination,
6 Credit Card Company had long advertised a written policy on the Square Website as
7 specifically set forth in the Refusal of Service List, which written policy was not to allow
8 him to use Credit Card Company’s services to accept payments in connection with his
9 business of being a bankruptcy attorney (Credit Card Company’s Misconduct).
10 9. At all times relevant herein, Robert White’s reaction to what he had first
11 heard by word of mouth about Credit Card Company’s Misconduct was dismay and
12 frustration.
13 10. Highly motivated by his dismay and frustration over what he had first
14 heard about Credit Card Company’s Misconduct, Robert White then and there formed the
15 strong, definite and specific intent to attempt to have Bankruptcy Law Firm become (and,
16 if possible, actually succeed in becoming) a Credit Card Company subscriber without
17 Bankruptcy Law Firm’s ever once submitting itself to Credit Card Company’s
18 Misconduct, thereby ultimately vindicating Robert White’s personal, specific Unruh Law
19 civil rights to be free from occupational discrimination.
20 11. Bankruptcy Law Firm first attempted to implement Robert White’s strong,
21 definite and specific intent as same is described in ¶ 10, supra, by taking the direct (but in
22 and of itself ineffectual) act of Robert White’s obtaining and then carefully reviewing
23 portions of the extensive PACER record in shierkatz RLLP v. Square, Inc., United States
24 District Court for the Northern District of California Case No. 3:15-cv-02202 JST
25 (shierkatz).
26 12. Bankruptcy Law Firm next attempted to implement Robert White’s strong,
27 definite and specific intent as same is described in ¶ 10, supra, by taking the direct (but in
28
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Second Amended Complaint
White v Square, Inc., Case No. 3:15-cv-04539-JST
Case 3:15-cv-04539-JST Document 39 Filed 04/29/16 Page 5 of 14
1 and of itself ineffectual) act of Robert White’s personally visiting Square Website and
2 carefully reviewing same, specifically including, but not limited to, his reviewing Refusal
3 of Service List.
4 13. Robert White reasonably construed Refusal of Service List as itself
5 representing an ipso facto instance of Credit Card Company’s Misconduct consisting of
6 Credit Card Company’s refusal of service to Bankruptcy Law Firm in any situation where
7 Bankruptcy Law Firm might wish to use Credit Card Company’s services to facilitate
8 Bankruptcy Law Firm’s practicing Robert White’s occupation as a bankruptcy lawyer.
9 This reasonable construction of Refusal of Service List by Robert White as alleged in ¶
10 12, supra, stands in opposition to any alternative construction of Refusal of Service List
11 as somehow consisting of a mere demand by Credit Card Company for the payment of
12 money as the price of subscription (there is no mention of the need for any such payment
13 in the present case) as was the case in Surrey v. True Beginnings, L.L.C., 168 Cal. App.
14 4th 414 (2008) (Surrey).
15 14. Bankruptcy Law Firm’s refusal to acquiesce in Credit Card Company’s
16 Misconduct by clicking the link marked “Continue” on Square Website and thereby
17 entering into the Square Seller Agreement was not intended by Robert White as any
18 indication Robert White did not, at all times relevant herein, have the strong, definite and
19 specific intent described in ¶ 10, supra. Rather, Robert White had Bankruptcy Law Firm
20 elect not to click the link marked “Continue” on Square Website (and thereby enter into
21 the Square Seller Agreement) because doing so would not only have been inconsistent
22 with Robert White’s personal, specific Unruh Law civil rights to be free from
23 occupational discrimination, but also because, based on the events described in shierkatz,
24 Bankruptcy Law Firm’s clicking the link marked “Continue” on Square Website (and
25 thereby entering into the Square Seller Agreement) would have predictably subjected
26 Bankruptcy Law Firm to a subsequent discriminatory termination by Credit Card
27 Company in violation of Robert White’s personal, specific Unruh Law civil rights to be
28
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Second Amended Complaint
White v Square, Inc., Case No. 3:15-cv-04539-JST
Case 3:15-cv-04539-JST Document 39 Filed 04/29/16 Page 6 of 14
1 free from occupational discrimination and which entirely predictable termination would
2 also have likely caused Bankruptcy Law Firm to suffer actual injury by virtue of the
3 resulting damage to its professional reputation and commercial credit.
4 15. Bankruptcy Law Firm next attempted to implement Robert White’s strong,
5 definite and specific intent as same is described in ¶ 10, supra, by taking the direct (but in
6 and of itself ineffectual) act of employing legal counsel to investigate its bringing legal
7 action against Credit Card Company with the ultimate goal of forcing Credit Card
8 Company to cease and desist Credit Card Company’s Misconduct.
9 16. Bankruptcy Law Firm next attempted to implement Robert White’s strong,
10 definite and specific intent as same is described in ¶ 10, supra, by—following the
11 completion of its legal counsel’s due diligence and report back to Bankruptcy Law Firm
12 as to the merits of the case—taking the direct (but in and of itself ineffectual) act of
13 instructing said legal counsel to sue Credit Card Company on Bankruptcy Law Firm’s
14 behalf for Credit Card Company’s Misconduct in this action, with the ultimate goal being
15 to force Credit Card Company to cease and desist Credit Card Company’s Misconduct.
16 17. Robert White’s direct (but in and of itself ineffectual) act of having
17 Bankruptcy Law Firm sue Credit Card Company took place on October 1, 2015.
18 18. Bankruptcy Law Firm next attempted to implement Robert White’s strong,
19 definite and specific intent as same is described in ¶ 10, supra, by—acting through its
20 legal counsel—taking the direct (but in and of themselves ineffectual) acts of
21 continuously visiting the Credit Card Company’s website beginning on January 1, 2016,
22 and on each calendar day thereafter, thereby being refused service by Credit Card
23 Company on each such past, present or future calendar day (until and unless Refusal of
24 Service List is voluntarily taken down or otherwise enjoined from being enforced) with
25 respect to any situation where Bankruptcy Law Firm might wish to use Credit Card
26 Company’s services to facilitate Bankruptcy Law Firm’s practicing Bankruptcy Law
27 Firm’s occupation as a bankruptcy lawyer.
28
5