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  • ROBERT WHITE VS. SQUARE, INC. A DELAWARE CORPORATION OTHER NON EXEMPT COMPLAINTS document preview
  • ROBERT WHITE VS. SQUARE, INC. A DELAWARE CORPORATION OTHER NON EXEMPT COMPLAINTS document preview
  • ROBERT WHITE VS. SQUARE, INC. A DELAWARE CORPORATION OTHER NON EXEMPT COMPLAINTS document preview
  • ROBERT WHITE VS. SQUARE, INC. A DELAWARE CORPORATION OTHER NON EXEMPT COMPLAINTS document preview
  • ROBERT WHITE VS. SQUARE, INC. A DELAWARE CORPORATION OTHER NON EXEMPT COMPLAINTS document preview
  • ROBERT WHITE VS. SQUARE, INC. A DELAWARE CORPORATION OTHER NON EXEMPT COMPLAINTS document preview
  • ROBERT WHITE VS. SQUARE, INC. A DELAWARE CORPORATION OTHER NON EXEMPT COMPLAINTS document preview
  • ROBERT WHITE VS. SQUARE, INC. A DELAWARE CORPORATION OTHER NON EXEMPT COMPLAINTS document preview
						
                                

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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 27 28 -1- 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). -2 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. 22 23 24 25 Jonathan H. Blavin 26 27 28 -3 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. 21 22 23 24 25 26 27 28 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: 27 28 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 2 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 3 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. 28 4 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 21 22 23 24 25 26 27 28 5 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 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 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. 21 22 23 24 25 26 27 28 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 3 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 4 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