Harrington v. Airbnb, Inc.

Response to Objections to Findings & Recommendation. Related document

D. Or.February 20, 2018

DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 Jeremy D. Sacks, OSB No. 994262 jeremy.sacks@stoel.com Reilley D. Keating, OSB No. 073762 reilley.keating@stoel.com Taryn K. Williams, OSB No. 165627 taryn.williams@stoel.com Kennon Scott, OSB No. 144280 kennon.scott@stoel.com STOEL RIVES LLP 760 SW Ninth Avenue, Suite 3000 Portland, OR 97205 Telephone: 503.224.3380 Facsimile: 503.220.2480 Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION PATRICIA HARRINGTON, individually and on behalf of others similarly situated, Plaintiff, v. AIRBNB, INC., Defendant. Case No.: 3:17-CV-00558-YY DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 1 of 23 TABLE OF CONTENTS Page Page i - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 TABLE OF AUTHORITIES ......................................................................................................... ii I. INTRODUCTION ............................................................................................................. 1 II. FACTUAL BACKGROUND ............................................................................................ 1 III. ARGUMENT ..................................................................................................................... 6 A. The Magistrate Judge Correctly Concluded That Plaintiff Does Not State a Cause of Action Under ORS 659A.885(7) ............................................................ 6 1. There Is No Dispute That ORS 659A.885(7) Creates a Private Right of Action Only for Alleged Discrimination That Occurred in the Past, Not for Anticipated Future Discrimination ................................. 6 2. None of the Alleged “Past Acts of Discrimination” Identified by Plaintiff Constitutes Discrimination or a Distinction or Restriction Made Against Plaintiff on Account of Plaintiff’s Race ............................. 7 3. None of Plaintiff’s “Policy” Arguments Supports Rejection of the F&Rs ........................................................................................................ 12 B. The Magistrate Judge Correctly Determined That Airbnb’s Motion to Dismiss Did Not Raise Any Jurisdictional Issues................................................ 13 IV. CONCLUSION ................................................................................................................ 17 Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 2 of 23 TABLE OF AUTHORITIES Page Page ii - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 Cases Akiyama v. U.S. Judo Inc., 181 F. Supp. 2d 1179 (W.D. Wash. 2002) ...............................................................................10 Allen v. U.S. Bancorp, 264 F. Supp. 2d 945 (D. Or. 2003) ................................................................................6, 10, 12 Bell v. Hood, 327 U.S. 678 (1946) .................................................................................................................15 Blaylock v. First Am. Title Ins. Co., No. C06-1667RAJ, 2008 WL 8741396 (W.D. Wash. Nov. 7, 2008) ......................................15 Catholic League for Religious & Civil Rights v. City & County of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc) .................................................................................15 CGM, LLC. v. BellSouth Telecomms., Inc., 664 F.3d 46 (4th Cir. 2011) .....................................................................................................14 Craig v. U.S. Bancorp, No. Civ. 03-1680-AA, 2004 WL 817149 (D. Or. Apr. 14, 2004) .............................................9 Davis v. Passman, 442 U.S. 228 (1979) .................................................................................................................14 DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz., Inc., 852 F.3d 868 (9th Cir. 2017) ...................................................................................................14 Gaines v. Nordstrom, Inc., No. 05-CV-689-PK, 2006 WL 2711779 (D. Or. Sept. 19, 2006) ..............................................6 Graden v. Conexant Sys., Inc., 496 F.3d 291 (3d Cir. 2007)...............................................................................................14, 16 Johnson v. Comm’n on Presidential Debates, 869 F.3d 976 (D.C. Cir. 2017) .................................................................................................15 King v. Greyhound Lines, Inc., 61 Or. App. 197, 656 P.2d 349 (1982).......................................................................................9 Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 3 of 23 TABLE OF AUTHORITIES Page Page iii - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 Klein v. Or. Bureau of Labor & Indus., 289 Or. App. 507 (2017) ..................................................................................................8, 9, 10 Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) .......................................................................................................14, 16 Menchu v. Legacy Health, No. 3:12-cv-02075-ST, 2014 WL 2855042 (D. Or. June 23, 2014) ..........................................9 ONRC Action v. Bureau of Land Mgmt., 150 F.3d 1132 (9th Cir. 1998) .................................................................................................15 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) .................................................................................................................15 Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009) .....................................................................................................8 Roberts v. Hamer, 655 F.3d 578 (6th Cir. 2011) ...................................................................................................14 Rousey v. Jacoway, 544 U.S. 320, 125 S.Ct. 1561, 161 L.Ed.2d 563 (2005) ............................................................8 Selden v. Airbnb, Inc., No. 16-cv-00933, 2016 WL 6476934 (D.D.C. Nov. 1, 2016) ...................................................3 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ...................................................................................................................15 United States v. Ritchie, 342 F.3d 903 (9th Cir. 2003) .................................................................................................2, 5 United States v. Song Ja Cha, 597 F.3d 995 (9th Cir. 2010) .....................................................................................................9 Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021 (9th Cir. 2009) .................................................................................................14 Vejo v. Portland Pub. Schs., 204 F. Supp. 3d 1149 (D. Or. 2016) ........................................................................................10 Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 4 of 23 TABLE OF AUTHORITIES Page Page iv - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 Warth v. Seldin, 422 U.S. 490 (1975) .................................................................................................................15 Yoakum v. Wells Fargo Bank, N.A., No. 09-1114-JE, 2011 WL 1541285 (D. Or. Mar. 30, 2011), findings and recommendations adopted, 2011 WL 1542542 (D. Or. Apr. 21, 2011) ....................................9 Statutes Civil Rights Act of 1964, 42 U.S.C. § 2000a ................................................................................10 Immigration Nationality Act ............................................................................................................8 Oregon Public Accommodations Act, ORS 659A.400, et seq. ............................................. passim ORS 659A.403 ...................................................................................................................5, 6, 9, 11 ORS 659A.885(7) .................................................................................................................. passim ORS 659A.885(10)(a)(B) ................................................................................................................6 Rules FRCP 12(b)(6) .................................................................................................................................2 Constitutional Provisions U.S. Const, Art. III .......................................................................................................13, 14, 15, 16 Other Authorities Murphy Report, available at https://blog.atairbnb.com/wp- content/uploads/2016/09/REPORT_Airbnbs-Work-to-Fight-Discrimination- and-Build-Inclusion.pdf);.......................................................................................................2, 3 Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 5 of 23 Page 1 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 I. INTRODUCTION On January 25, 2018, the Honorable Magistrate Judge You recommended that plaintiff Patricia Harrington’s (“Plaintiff”) Complaint be dismissed with prejudice. Magistrate Judge You’s Findings and Recommendations (“F&Rs”), Dkt. 37. Plaintiff, a non-member of defendant Airbnb, Inc.’s (“Airbnb”) community, who has never been denied any accommodations on the Airbnb platform and against whom no discrimination has been made on account of race by Airbnb or on the Airbnb platform, has not stated, and cannot state, a claim for an alleged violation of the Oregon Public Accommodations Act, ORS 659A.400, et seq. (“OPAA”). This Court should affirm the F&Rs in their entirety, reject Plaintiff’s Objections (“Objections,” Dkt. 39), and enter judgment dismissing this case with prejudice. II. FACTUAL BACKGROUND The facts are straightforward. Airbnb’s online marketplace is used by third parties (“hosts”) to post listings that offer other Airbnb users (“guests”) the opportunity to discover and stay in millions of unique accommodations around the world. Compl. ¶¶ 5, 7, 11. Airbnb requires each member (including hosts and prospective guests) to register and create an account with Airbnb, including a member profile. Id. ¶¶ 9-10. As alleged by Plaintiff, the profile must include a first and last name and a photograph of the member’s face. Id. ¶¶ 10, 12. Plaintiff has never joined Airbnb or created an account or member profile on Airbnb. See id. ¶ 22. Hosts may opt to receive booking requests only from prospective guests whose profiles include certain information, such as a photograph, and hosts also may deny a booking request from a prospective guest who does not include such information (i.e., a profile that does not include a photograph). Id. ¶¶ 12-13. Plaintiff has never submitted a booking request to a host on Airbnb nor had a booking request denied by a host on Airbnb. Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 6 of 23 Page 2 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 Although Airbnb offers an “instant booking” feature that allows guests to book an accommodation immediately, hosts are not required to use such feature. Id. ¶ 14. If a host has not chosen the “instant booking” feature, a prospective guest must “request a booking” from the host. Id. The request is forwarded to the host, who reviews the request along with the prospective guest’s profile information. Id. The host may then pre-approve, confirm, or reject the request within a defined time. Id. Plaintiff acknowledges that Airbnb’s booking policies apply to each Airbnb member equally, regardless of race. See id. ¶ 10. Some individual third-party hosts and guests have engaged in discriminatory conduct while interacting directly with one another when using Airbnb’s online platform. Airbnb has confronted this misconduct head-on by taking a very public stance against it and by making product changes designed to fight bias in the Airbnb community. For example, Airbnb engaged Laura Murphy, former Director of the ACLU Legislative Office, to work with other respected experts and help lead the company’s anti-discrimination efforts. Ms. Murphy submitted a report to the company, now publicly available and dated September 8, 2016, that discusses these issues and identifies commitments that Airbnb has made to address discrimination on the platform (the “Murphy Report”).1 See Dkt. 1 at 3 n.1 (addressing the Murphy Report, available at 1 Plaintiff quotes from and relies on the Murphy Report in her Complaint in support of her allegation that Airbnb has conceded that discrimination takes place on the platform. See Compl. ¶ 17. Airbnb also quoted from the Murphy Report and included links to it in Airbnb’s Notice of Removal (Dkt. 1 at 3 n.1) and Motion to Dismiss (Dkt. 30 at 1 n.2), without objection from Plaintiff. Accordingly, the Court may consider the report in ruling on the Objections. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (in ruling on a FRCP 12(b)(6) motion, a court may consider materials such as “documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice” without converting the motion to dismiss into a motion for summary judgment); see also Objections at 5 (Plaintiff quoting from and citing to document attached to a declaration of Joshua L. Ross in connection with Plaintiff’s Motion to Remand and stating that such document is “in the record”). (Although Plaintiff identifies the document referenced at page 5 of the Objections as the “Declaration of Joshua L. Ross in Support of Plaintiff’s Reply in Support of Motion to Remand (Docket #19), Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 7 of 23 Page 3 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 https://blog.atairbnb.com/wp-content/uploads/2016/09/REPORT_Airbnbs-Work-to-Fight- Discrimination-and-Build-Inclusion.pdf); Dkt. 30 at 1 n.2 (same). One of those commitments is to require every host and guest to affirmatively uphold the Airbnb Community Commitment in order to share a space or book a listing on Airbnb: “We believe that no matter who you are, where you are from, or where you travel, you should be able to belong in the Airbnb community. By joining this community, you commit to treat all fellow members of this community, regardless of race, religion, national origin, disability, sex, gender identity, sexual orientation or age, with respect, and without judgment or bias.” Murphy Report at 10 (italics omitted). Airbnb also has a robust Nondiscrimination Policy to which all hosts and guests must agree to adhere and which expressly prohibits discrimination on the platform. See id. at 27-32 (Appendix One); see also Dkt. 15 (Declaration of Ruchit Solanki in Support of Defendant’s Notice of Removal) at ¶ 6 and Ex. 1. This action followed on the heels of Airbnb’s publicized efforts to combat discrimination. Plaintiff, an African-American Oregonian, has never joined Airbnb but claims that she would like to become a member.2 Compl. ¶¶ 1, 22, 23. On February 22, 2017, a few months after the release of the Murphy Report, Plaintiff’s counsel sent Airbnb a letter demanding that Airbnb allow Plaintiff and other African-American Oregonians: membership in Airbnb under terms of service that do not require or allow bookings to be contingent upon a “host’s” review of a Ex. C,” Plaintiff must have intended to refer to the Declaration of Joshua L. Ross in Support of Plaintiff’s Motion to Remand (Dkt. 13, 13-2), because it contains an “Exhibit C” while the declaration found at Docket #19 does not.) 2 Because Plaintiff has refused to join the Airbnb community, she is avoiding Airbnb’s Terms of Service, which include an arbitration clause and a class action waiver. See Compl. ¶¶ 10, 22, 23; see also Selden v. Airbnb, Inc., No. 16-cv-00933, 2016 WL 6476934, at *6 (D.D.C. Nov. 1, 2016) (compelling arbitration of putative class action brought by African-American member of Airbnb for alleged violation of federal anti-discrimination laws based on Airbnb Terms of Service). Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 8 of 23 Page 4 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 “guest’s” name or picture and that Airbnb no longer provide information that reveals immutable characteristics to prospective “hosts” as a condition of booking. Dkt. 13-2 at 2; see also Compl. ¶ 25. Plaintiff’s counsel demanded a response within five days. Dkt. 13-2 at 2. On March 2, 2017, Airbnb’s in-house lawyer responded to Plaintiff’s counsel, explaining that “Airbnb’s mission as a company is one of inclusion—that people can belong everywhere.” The letter further states: As you know, Airbnb has taken a very public stand in support of inclusion and respect. To that end, Airbnb has adopted a Non- Discrimination Policy prohibiting hosts on our platform from engaging in discrimination. Beginning November 1, 2016, all Airbnb users are required to agree expressly to a non- discrimination pledge. We are happy to hear that your client, Patricia Harrington, may be interested in becoming a part of the Airbnb community. Members of the Airbnb community utilize Airbnb’s platform to interact with other members for the purpose of entering into direct agreements to book unique accommodations. In the spirit of belonging, many hosts share their personal home with guests from around the globe. We are confident that Ms. Harrington would be able to find a listing within the Airbnb community that suits her, either through direct communication with prospective hosts or by using the Instant Book feature which allows for the automatic booking of a listing without prior host approval of a specific guest. Airbnb has made public commitments to supporting guests when they believe a host has failed to abide by our Non-Discrimination Policy. Should Ms. Harrington notify us that she feels she has been discriminated against in any interaction with a host on our platform, Airbnb has a dedicated team that will work with her to secure a booking at a similar listing. We will also investigate her report and take appropriate action. We look forward to the possibility of welcoming Ms. Harrington into the Airbnb community in the near future. Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 9 of 23 Page 5 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 Id.3 Plainly, Airbnb did not refuse to change its policies because of Plaintiff’s race. This key fact is omitted from Plaintiff’s Objections. Four days later, on March 6, 2017, Plaintiff filed the Complaint, originally in Multnomah County Circuit Court, which Airbnb timely removed to this Court.4 The Complaint alleges, among other things, that Airbnb’s booking policies violate the OPAA because, by requiring guests to maintain a profile that includes a photograph and by forwarding hosts information about guests that necessarily reveals immutable characteristics, hosts are allowed to deny requests from prospective guests for any reason, including on account of race. Compl. ¶¶ 15, 16, 19. Thus, she alleges, “[t]he effect of Airbnb’s booking policies is that Airbnb’s public accommodation—its service of offering to the public, among other things, lodgings— discriminates and violates ORS 659A.403, because Airbnb offers a different service to African- Americans than it does to whites.” Id. ¶ 18. Plaintiff alleges that she and members of the putative class have been injured by Airbnb’s “refus[al] to allow [her] and other African- Americans in Oregon to join” under terms that did not include implementation of the alleged discriminatory booking policies. Id. ¶ 26. She further alleges that, by “continu[ing] to maintain a platform that discriminates against African-Americans,” Airbnb has “made a distinction, discriminated, and imposed a restriction on plaintiff and all members of the class on account of race and/or color.” Id.; see also id. ¶ 27. 3 Again, the Court may consider the entire contents of this letter because Plaintiff (1) quotes from part of it at page 5 of her Objections, see Dkt. 39 at 5, and (2) references and paraphrases it in the Complaint, see Compl. ¶ 26. See also Ritchie, 342 F.3d at 908. 4 Plaintiff filed a motion to remand the case to state court, but that motion was denied. See Dkt. 12, 23, 25. Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 10 of 23 Page 6 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 III. ARGUMENT A. The Magistrate Judge Correctly Concluded That Plaintiff Does Not State a Cause of Action Under ORS 659A.885(7). 1. There Is No Dispute That ORS 659A.885(7) Creates a Private Right of Action Only for Alleged Discrimination That Occurred in the Past, Not for Anticipated Future Discrimination. Plaintiff does not object to the Magistrate Judge’s conclusion that ORS 659A.885(7) does not support a claim for anticipated discrimination, or discrimination that might happen in the future. See F&Rs at 7, 9; see also Objections at 3. Airbnb agrees with Plaintiff that this conclusion is “not remarkable.” Objections at 3, 6. The plain text and context of ORS 659A.885(7) make clear that a civil action under the OPAA arises only for discrimination that has been made against the individual asserting the claim on account of that person’s race: Any individual against whom any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age, if the individual is 18 years of age or older, has been made by any place of public accommodation, … may bring an action …. (Emphasis added.) Compare ORS 659A.885(7) with ORS 659A.885(10)(a)(B) (authorizing a claim by an aggrieved person who believes he or she “[w]ill be injured by an unlawful practice . . . that is about to occur” in violation of certain statutes, but not ORS 659A.403). The case law interpreting and applying the OPAA confirms that a private right of action exists only for discrimination that already has occurred, not for prospective or contingent discrimination that may occur in the future. See, e.g., Gaines v. Nordstrom, Inc., No. 05-CV- 689-PK, 2006 WL 2711779, at *7 (D. Or. Sept. 19, 2006) (granting summary judgment in favor of defendant where plaintiff offered no evidence “to suggest Nordstrom departed from its normal loss prevention procedures or applied their policies differently to Gaines because of her race” or that plaintiff “was singled out or treated unequally because of her race”); Allen v. U.S. Bancorp, Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 11 of 23 Page 7 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 264 F. Supp. 2d 945, 954 (D. Or. 2003) (for a private right of action under the OPAA, “the issue is whether [the plaintiff] was treated in an ‘unequal’ manner because of his race and whether that treatment resulted in an injury to him”). Because there are no objections to these findings, and because they are amply supported by the plain statutory text and context and case law, the Court should affirm the Magistrate Judge’s conclusion that “ORS 659A.885(7) provides no recourse for forward-looking discrimination claims” and that Plaintiff cannot state a claim based on any such future or anticipated discrimination. See F&Rs at 11. Further, given that neither Plaintiff nor any member of the putative class is or ever has been an Airbnb member, see id. ¶¶ 22, 30, and none of them has been denied any request for accommodation on the Airbnb platform or otherwise been discriminated against by any Airbnb host, the Court should adopt the Magistrate Judge’s conclusion that Plaintiff and the putative class members are not authorized to sue under ORS 659A.885(7) and that this action should be dismissed with prejudice. See F&Rs at 7, 11. 2. None of the Alleged “Past Acts of Discrimination” Identified by Plaintiff Constitutes Discrimination or a Distinction or Restriction Made Against Plaintiff on Account of Plaintiff’s Race. Plaintiff argued to the Magistrate Judge that her claim should not be dismissed because it is not based on discrimination that might occur in the future, but rather on discrimination that occurred in the past. Plaintiff repeats this line in her Objections, now contending— remarkably—that the Magistrate Judge must have misunderstood Plaintiff’s allegations when recommending dismissal of Plaintiff’s Complaint with prejudice. Plaintiff is wrong. The F&Rs are not “premised on an erroneous reading of the allegations of the Complaint.” Objections at 2. The F&Rs clearly outline Plaintiff’s allegations, see F&Rs at 2-4, and aptly recognize that Plaintiff’s claim, at its core, seeks relief for discrimination that she Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 12 of 23 Page 8 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 believes may happen if she joins Airbnb, see id. at 7, 10-11. And even if the F&Rs do not explicitly reference Plaintiff’s allegation concerning Airbnb’s refusal to change its policies, that allegation unquestionably is implied. See id. at 3-4. Just because the Magistrate Judge rejected Plaintiff’s argument does not mean she did not understand it or comprehend Plaintiff’s allegations. More fundamentally, none of the alleged “past acts of discrimination” that Plaintiff contends the Magistrate Judge did not understand saves Plaintiff’s claim from dismissal with prejudice. As Plaintiff’s Complaint and the documents in the record demonstrate, and as Airbnb explained in its prior briefing and at oral argument, Plaintiff has not alleged, and cannot allege, that Airbnb has discriminated against her or any member of the putative class on account of their race. Plaintiff alleges that Airbnb’s refusal to allow Plaintiff and the putative class members to join under terms that do not include the alleged discriminatory booking policies is the “past act’ that caused Plaintiff’s alleged injury. Compl. ¶¶ 25-28. But Plaintiff’s claim fails because she does not and cannot allege that Airbnb refused to change its policies because of Plaintiff’s race or that Airbnb has implemented its booking policies for a discriminatory purpose. A recent decision by the Oregon Court of Appeals bolsters the conclusion that Plaintiff has not stated and cannot state a claim under the OPAA. In Klein v. Or. Bureau of Labor & Indus., 289 Or. App. 507 (2017), the court explained that, in the context of the OPAA, the phrase “on account of” means “because of” or “by reason of,” and thus requires that “the denial of full and equal accommodations be causally connected to the protected characteristic or status.”5 Id. 5 The United States Supreme Court and Ninth Circuit also have interpreted the phrase “on account of” as it is used in other federal statutes to require a causal connection and proof of discriminatory intent. Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir. 2009) (to prove that a refugee seeking asylum under the Immigration Nationality Act was persecuted “on account of” a protected characteristic “necessitates an assessment of the persecutors’ motives.”); Rousey v. Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 13 of 23 Page 9 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 at 518-19 (internal citations and quotation marks omitted). Klein is consistent with federal court decisions that explain that, to prevail on a claim under the OPAA, a plaintiff must allege and prove intent to discriminate. See Menchu v. Legacy Health, No. 3:12-cv-02075-ST, 2014 WL 2855042, at *5 (D. Or. June 23, 2014) (stating that the plaintiff’s discrimination claims, including one based on ORS 659A.403, “require[] proof of intentional discrimination”); Yoakum v. Wells Fargo Bank, N.A., No. 09-1114-JE, 2011 WL 1541285, at *7 (D. Or. Mar. 30, 2011) (analyzing claim for violation of ORS 659A.403 under burden-shifting approach of Title VII claims and stating that “Plaintiffs bear the initial burden of establishing a prima facie case of intentional discrimination”), findings and recommendations adopted, 2011 WL 1542542 (D. Or. Apr. 21, 2011).6 And tellingly, each of the OPAA cases cited in the prior briefing involved plaintiffs who had been the subject of unequal treatment that was (or was alleged to have been) motivated by the defendant’s discriminatory animus due to some protected characteristic. See King v. Greyhound Lines, Inc., 61 Or. App. 197, 203, 656 P.2d 349 (1982) (plaintiff had been subjected to racial slurs); Craig v. U.S. Bancorp, No. Civ. 03-1680-AA, 2004 WL 817149, at *4 (D. Or. Jacoway, 544 U.S. 320, 326, 125 S.Ct. 1561, 161 L.Ed.2d 563 (2005) (the phrase “on account of” in the Bankruptcy Code requires a causal connection between the term that phrase “modifies and the factor specified in the statute at issue.”). 6 Although these cases were not cited in the prior briefing, the Court may and should consider them in ruling on Plaintiff’s Objections. Klein was decided after oral argument was held on Defendant’s Motion to Dismiss, and the other cases provide additional legal support for Airbnb’s contention that Plaintiff has failed to allege that she suffered discrimination or a distinction or restriction on account of her race—an argument squarely presented to the Magistrate Judge and responsive to the arguments raised by Plaintiff in her Objections. See, e.g., Dkt. 35 at 1-6 (explaining that Plaintiff has not stated a claim because she does not allege that any act by Airbnb was on account of Plaintiff’s race); see also United States v. Song Ja Cha, 597 F.3d 995, 1003 n.7 (9th Cir. 2010) (noting that “[a] district judge has discretion to consider new evidence or legal arguments made only in the objections to the magistrate judge’s report” and concluding that a new legal argument “should be considered because it involves a legal question and no further factual development is necessary”). Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 14 of 23 Page 10 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 Apr. 14, 2004) (African-American plaintiff had to wait for an hour and submit to a “fraud” investigation when attempting to cash a check); Allen, 264 F. Supp. 2d at 954 (African-American plaintiff had to remove his sunglasses even though white customers could leave theirs on); Vejo v. Portland Pub. Schs., 204 F. Supp. 3d 1149, 1173 (D. Or. 2016) (reasonable jury could conclude that plaintiff, a Russian-born orthodox Christian, was terminated from her internship because of her race, national origin and religion); see also Klein, 289 Or. App. at 512 (defendants refused to make a wedding cake for plaintiffs because of their sexual orientation). This central element is missing from Plaintiff’s claim. The Complaint does not include any allegations that Airbnb refused Plaintiff’s request that the company cease implementation of its booking policies because of Plaintiff’s race. Nor does the Complaint contain any allegations from which it reasonably could be inferred that (1) Airbnb adopted and continues to apply its booking policies in order to discriminate against African-Americans or (2) Airbnb’s refusal to change its facially neutral booking policies, which Plaintiff concedes apply to all members, was driven by any discriminatory animus Airbnb has against African-Americans. See, e.g., Akiyama v. U.S. Judo Inc., 181 F. Supp. 2d 1179, 1187 (W.D. Wash. 2002) (in action against a place of public accommodation for alleged violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, stating that “there is no claim under Title II where a proprietor or event organizer has set up facially neutral regulations governing the provision of its services, with no indication of discriminatory motive or intent. Absent some evidence that the regulation was aimed at a particular [protected characteristic] and/or that the proprietor adopted the regulation as a pretext for intentional discrimination on the basis of [that protected characteristic], Title II is not implicated.”). Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 15 of 23 Page 11 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 To the contrary, Airbnb’s response to Plaintiff’s counsel’s letter—which Plaintiff selectively quotes in her Objections and which this Court should consider in full—expressly states that “Airbnb’s mission as a company is one of inclusion,” that “Airbnb has adopted a Non- Discrimination Policy prohibiting hosts on our platform from engaging in discrimination,” that Airbnb was “happy to hear that [Plaintiff] may be interested in becoming a part of the Airbnb community,” and that it would “investigate” any report of suspected discrimination and “take appropriate action.” Dkt. 13-3 at 1. Put simply, Plaintiff has not alleged, and in good faith cannot allege, that Airbnb’s conduct was racially motivated. At page 2 of the Objections, Plaintiff misleadingly states: “Specifically, Plaintiff pleaded that, based on her race, she was denied access to an accommodation free from discrimination.” But the Complaint does not contain a single allegation that supports this statement, and notably, Plaintiff does not cite to or quote from the Complaint in support of it. Airbnb’s refusal to change its policies, which apply equally to all members, cannot form the basis for a civil action under ORS 659A.885(7) or a violation of ORS 659A.403. Plaintiff alleges no other facts that authorize her to bring a civil action. The other “past acts of discrimination” that Plaintiff identifies pertain to alleged discrimination that occurred with respect to other Airbnb members, none of whom, by definition, includes Plaintiff or any member of the putative class. See, e.g., Objections at 4 (Allegation #1). The OPAA requires that the alleged discriminatory act must have been made against the individual bringing the claim, which cannot be Plaintiff or any putative class member. See ORS 659A.885(7). And Plaintiff’s contention that she and the putative class members have been denied equal access to services because they have to abide by the same policies that apply to everyone else necessarily requires one to assume that discrimination would occur in the future because it occurred in the Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 16 of 23 Page 12 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 past and that it will occur against Plaintiff and the putative class members. As discussed above, as conceded by Plaintiff, and as concluded by the Magistrate Judge, ORS 659A.885(7) does not create a cause of action for such forward-looking discrimination claims. 3. None of Plaintiff’s “Policy” Arguments Supports Rejection of the F&Rs. Plaintiff’s “policy” arguments in her Objections are equally unpersuasive. Plaintiff asks the Court to consider two hypothetical examples that she contends are analogous to the present situation and would support a claim under the OPAA. Not so. Plaintiff’s fictional scenarios do not resemble the facts of this case as both involve explicit statements of a present intent to discriminate on the basis of race. Plaintiff’s first example is a twist on the facts of Allen: a bank affirmatively tells all black customers that they will be asked to remove their sunglasses while waiting in line, and refuses to change its policy when asked to do so by a black customer. See Objections at 8; see also 264 F. Supp. 2d at 954. The second example is similar to the first: a black woman approaches a restaurant intending to dine there but sees a sign in the window that says it reserves the right to not serve black patrons, and the restaurant refuses to change its policy. See Objections at 9. These hypothetical examples differ fundamentally from the facts in this case. Plaintiff does not and cannot allege that Airbnb has communicated or expressed intent to discriminate against any person on account of any protected characteristic. To the contrary, and as discussed above, Airbnb has taken a very public stance against discrimination, expressly prohibits such misconduct by its members, and has engaged experts to help it work to eliminate bias by third- party hosts on the platform. Moreover, there is no question that Plaintiff may join the Airbnb community on the same terms as anyone else. Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 17 of 23 Page 13 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 Plaintiff’s position, taken to its logical conclusion, would allow any Oregonian who hears that an Oregon business—or the business’s customers, over whom the business has no control— might discriminate based on race to preemptively sue that business under the OPAA. This interpretation impermissibly expands ORS 659A.885(7) beyond its plain and unambiguous text and context and could not be what the Oregon legislature intended, notwithstanding the statute’s purpose of preventing unequal treatment on account of race. For the foregoing reasons, the Magistrate Judge correctly construed the allegations in Plaintiff’s Complaint and correctly concluded that Plaintiff has not stated and cannot state a claim under the OPAA. And the Magistrate Judge correctly dismissed the Complaint with prejudice. As discussed above, Plaintiff cannot, as a matter of law, maintain a civil action under ORS 659A.885(7) based on future or anticipated discrimination. Plaintiff cannot, in good faith, allege that Airbnb refused to change its policies on account of Plaintiff’s race or that Airbnb has implemented its policies in order to treat people of one race differently from another. Simply put, Plaintiff cannot plead around these deficiencies. Plaintiff’s Objections should be rejected, and the F&Rs should be adopted.7 B. The Magistrate Judge Correctly Determined That Airbnb’s Motion to Dismiss Did Not Raise Any Jurisdictional Issues. Plaintiff again tries to draw the Court’s attention away from the fatal flaws in her pleading by objecting to the F&Rs on the grounds that they “contain[] no analysis of whether Article III jurisdiction exists in this case.” Objections at 12. This objection mischaracterizes the F&Rs and assumes a requirement that does not exist. 7 Dismissal of Plaintiff’s Complaint also is proper because Airbnb is not a “place of public accommodation” for the reasons stated in Defendant’s Motion to Dismiss and its reply in support of that motion. See Dkt. 30 at 14-15; Dkt. 35 at 6-7. The Magistrate Judge, however, did not decide this issue, and it is not addressed in Plaintiff’s Objections. Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 18 of 23 Page 14 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 In its Notice of Removal—and through its successful opposition to Plaintiff’s Motion to Remand—Airbnb established that this Court has subject matter jurisdiction over this case. Airbnb has never contended otherwise. Plaintiff asked the Magistrate Judge to require Airbnb to meet this burden again, arguing that Airbnb “placed [subject matter jurisdiction] squarely before the Court” through its motion challenging whether Plaintiff had stated a cause of action under ORS 659A.885(7). Dkt. 32 at 3. The F&Rs squarely, and appropriately, rejected Plaintiff’s argument. As the Magistrate Judge explained: “At the heart of Airbnb’s motion is the claim that [Plaintiff] and the putative class members are not within the class of persons authorized to bring suit under ORS 659A.885(7),” and “[t]he question of whether a statute allows a plaintiff or class of plaintiffs the right to bring suit is not a jurisdictional question.” F&Rs at 5. Accordingly, instead of accepting Plaintiff’s invitation to “confus[e]” statutory interpretation with Article III standing, the Magistrate Judge “turn[ed] to the question of whether ORS 659A.885(7) extends a cause of action to [Plaintiff] and the class she seeks to represent.” Id. at 5, 7. The Magistrate Judge’s approach is well-reasoned and conforms to controlling precedent. As explained in the F&Rs, the question of whether Plaintiff is authorized to sue under the OPAA “is separate and apart from the ‘standing’ inquiry of Article III.” F&Rs at 5-7 (citing DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz., Inc., 852 F.3d 868, 873 (9th Cir. 2017); Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009); CGM, LLC. v. BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011); Graden v. Conexant Sys., Inc., 496 F.3d 291, 295 (3d Cir. 2007); Roberts v. Hamer, 655 F.3d 578, 581 (6th Cir. 2011); Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.4 (2014); Davis v. Passman, 442 U.S. Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 19 of 23 Page 15 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 228, 239 n.18 (1979)).8 And, although Plaintiff claims she “does not dispute” this well- established principle, she conflates the two issues, arguing that if “Plaintiff has no claim or injury under [the OPAA], it stands to reason that there can be no ‘injury in fact’ under Article III.” Objections at 11-12 (quoting F&Rs at 6). To the extent Plaintiff argues that the Magistrate Judge was required to address Article III standing before addressing whether Plaintiff had stated a claim under the OPAA, Plaintiff is wrong. Under the doctrine of constitutional avoidance, a federal court “may first determine whether a plaintiff is authorized to sue for an alleged statutory violation before addressing constitutional standing.” Dkt. 35 at 12-13 (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 831 (1999) (an issue that is “‘logically antecedent’” to Article III concerns and that pertains to statutory standing “may properly be treated before Article III standing” (citation omitted)); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 97 n.2 (1998) (approving of resolving statutory standing before Article III standing); ONRC Action v. Bureau of Land Mgmt., 150 F.3d 1132, 1140 (9th Cir. 1998); Blaylock v. First Am. Title Ins. Co., No. C06-1667RAJ, 2008 WL 8741396, at *5 (W.D. Wash. Nov. 7, 2008) (“Even where a plaintiff’s claims present Article III standing concerns, the court can address statutory standing first. . . . The question is . . . whether either statute ‘authorizes th[ese] plaintiff[s] to sue,’ which is a question of statutory standing.” (citation omitted; brackets in original)); Johnson v. Comm’n on Presidential Debates, 869 F.3d 976, 982 (D.C. Cir. 2017) (“[P]roceeding directly to clearly-dispositive, non-jurisdictional, prudential 8 See also Warth v. Seldin, 422 U.S. 490, 500 (1975) (Article III standing “in no way depends on the merits of the . . . contention that particular conduct is illegal”); Bell v. Hood, 327 U.S. 678, 682 (1946) (Article III standing “is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover”); Catholic League for Religious & Civil Rights v. City & County of San Francisco, 624 F.3d 1043, 1049 (9th Cir. 2010) (en banc) (“Nor can standing analysis, which prevents a claim from being adjudicated for lack of jurisdiction, be used to disguise merits analysis, which determines whether a claim is one for which relief can be granted if factually true.”). Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 20 of 23 Page 16 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 standing analysis is a permissible—even preferable—course in rare cases where jurisdictional, Article III standing inquiry yields grave constitutional doubt.”)). The Magistrate Judge thus correctly decided to interpret ORS 659A.885(7) and determine whether it authorizes Plaintiff to bring her claim based on the facts alleged in the Complaint. In any event, there was no dispute concerning Article III standing for the Magistrate Judge to resolve. Plaintiff argues that she has alleged “humiliation and indignity” and “oppression,” and thus has alleged actual injury. See Dkt. 32 at 7; Objections at 2-7. Airbnb agrees that “the[] allegations from the Complaint demonstrate that this Court has Article III jurisdiction over this action.” See Dkt. 35 at 13-14. And indeed, Plaintiff’s Complaint does allege an injury in fact, see Compl. ¶¶ 25, 27, 28, that is directly traceable to the challenged conduct, id. ¶¶ 26-28, and that is likely to be redressed by a favorable decision, id. ¶ 29. See also Dkt. 35 at 14. The problem Plaintiff faces is not that she has failed to allege an injury (she has alleged that Airbnb refused to change its policies, which she contends are discriminatory); rather, the problem is that the injury alleged is not cognizable under ORS 659A.885(7). Accordingly, there is no question that Article III standing exists, and thus, there was no need for the Magistrate Judge to address the issue before recommending dismissal of Plaintiff’s Complaint.9 9 In a footnote, Plaintiff takes issue with the Magistrate Judge’s citation to two of the many cases cited in the F&Rs regarding the “standing” issue: Lexmark, 134 S. Ct. 1377, and Graden, 496 F.3d 291. See Objections at 12 n.3. Of course, Plaintiff does not cite a single case in support of her objections to this portion of the F&Rs. But even so, Lexmark confirms that a plaintiff may have Article III standing (as is the case here) without being able to invoke the protection of a particular statute (as also is the case here). See 134 S. Ct. at 1390; see also id. at 1386-87. And similarly, in Graden, there was “no dispute about Article III or prudential standing,” which also is the case here. 496 F.3d at 294-95. Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 21 of 23 Page 17 - DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO FINDINGS AND RECOMMENDATIONS 95995081.1 0056120-00002 IV. CONCLUSION For the reasons stated above and in Airbnb’s prior briefing, Airbnb respectfully requests that the Court reject Plaintiff’s Objections, adopt the Magistrate Judge’s F&Rs in full, and enter judgment dismissing Plaintiff’s Complaint with prejudice. DATED: February 20, 2018. STOEL RIVES LLP /s/ Reilley D. Keating JEREMY D. SACKS, OSB No. 994262 jeremy.sacks@stoel.com REILLEY D. KEATING, OSB No. 073762 reilley.keating@stoel.com TARYN K. WILLIAMS, OSB No. 165627 taryn.williams@stoel.com KENNON SCOTT, OSB No. 144280 kennon.scott@stoel.com Telephone: 503.224.3380 Attorneys for Defendant Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 22 of 23 92838821.1 0056120-00002 CERTIFICATE OF SERVICE I hereby certify that on February 20, 2018, a copy of the foregoing document was filed electronically through the CM/ECF system, which caused all parties or counsel to be served by electronic means as reflected on the Notice of Filing. /s/ Reilley D. Keating Jeremy D. Sacks, OSB No. 994262 Jeremy.sacks@stoel.com Reilley D. Keating, OSB No. 073762 reilley.keating@stoel.com Taryn K. Williams, OSB No. 165627 taryn.williams@stoel.com Kennon Scott, OSB No. 144280 kennon.scott@stoel.com Attorneys for Defendant Case 3:17-cv-00558-YY Document 40 Filed 02/20/18 Page 23 of 23