Opiotennione v. Facebook, Inc.

Background

Neuhtah Opiotennione alleged that Facebook’s advertising tools allowed advertisers to exclude users based on age or gender. She claimed that, because she is a 54-year-old woman, she did not have the opportunity to receive certain financial-services advertisements in her Facebook News Feed. She identified three advertisements—one for a rewards-based debit card and two for bank accounts—that she said she would have been interested in receiving to consider pursuing the opportunities.

She asserted claims for age and sex discrimination under California’s Unruh Civil Rights Act, California Civil Code sections 51 and 52(a), California Civil Code sections 51.5 and 52(a), and the District of Columbia law identified in the opinion as the D.C. Procedures Act, D.C. Code section 2-1402.31.

Motion and jurisdiction

Facebook moved to dismiss for lack of Article III standing, lack of statutory standing, and failure to state a claim. Article III standing is the requirement that a plaintiff show a concrete and personal injury, a connection between that injury and the defendant’s conduct, and a likelihood that a court decision can remedy the injury.

The court found that it had subject-matter jurisdiction under the Class Action Fairness Act. The court nevertheless held that Opiotennione had not adequately alleged an injury in fact, which is the first requirement for Article III standing.

Court’s analysis

The court rejected Opiotennione’s theory that being denied the possibility of seeing advertisements, by itself, established a personal injury. It characterized that theory as a general claim of unequal treatment. Identifying advertisements restricted by age or gender was not enough because Opiotennione did not allege that she was qualified for and interested in actually applying for the financial products offered.

The court also rejected her claims of stigmatic harm, economic harm, and loss of an opportunity to obtain a benefit. According to the court, each theory still required allegations showing a personal denial of equal treatment or that she was able and ready to pursue the relevant opportunity. The court distinguished cases involving plaintiffs who had personally encountered barriers to services or who had actually sought to use a service.

Disposition

The court granted Facebook’s motion to dismiss for lack of standing. It declined to address Facebook’s other arguments because Opiotennione had not established an injury in fact. The court denied as moot the motions by Upturn, Inc., and the Lawyers’ Committee for Civil Rights under Law, Inc., for permission to file amicus briefs supporting Opiotennione’s opposition. The court stated that any amended complaint was due within 30 days of the order.