Ninth Circuit Finds That Discrimination Is A Concrete Injury For Purposes Of Article III Standing

Anne Shaver, Partner, Lieff Cabraser Heimann & Bernstein, LLP.

The last few years have brought more and more standing-based challenges to our clients’ ability to have their day in court, with some success  – look no further than TransUnion v. Ramirez, for example.  Fortunately, the Ninth Circuit just rejected an attempt to insulate a bank from liability for admitted citizenship discrimination on standing grounds.*

Chattopadhyay v. BBVA, 19-cv-01541-JST (N.D. Cal.) is a class action alleging that BBVA (Banco Bilbao Vizcaya Argentaria) discriminates on the basis of citizenship status in violation of 42 U.S.C. 1981 and California’s Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq.  BBVA generally offers customers the ability to open a new account online, but its admitted policy is that non-U.S. citizens (even those, like our clients, who are U.S. residents and possess social security numbers) cannot open an account online.  Instead, non-citizens must go into a physical branch to open an account. Obviously, there are many reasons why online banking is preferable, particularly during a pandemic.  Further, there is no legitimate reason for this policy: banks commonly use social security numbers to verify identity in online banking, and plenty of other banks allow non-citizens like our clients to open accounts online. BBVA’s claims that non-citizens represent a security threat and are more difficult to identify are based on false and offensive stereotypes, particularly where, as here, they possess the same means of identification as do U.S. citizens. 

The dynamics of the oral argument before appointees of Nixon, Carter, and Trump on constitutional standing were quite fun and interesting!

Regardless, Judge Tigar granted BBVA’s motion to dismiss the named plaintiffs’ claims on standing grounds. He held that our plaintiffs did not suffer a concrete injury because they were not completely prevented from opening an account with BBVA.  That is, they still could have contracted with the bank by going to a branch in person.  He rejected our argument that BBVA’s invasion of the plaintiffs’ legally protected interest in forming a contract free of discrimination was a concrete injury. Judge Tigar also found that BBVA’s policy did not cause our named plaintiffs’ injury, but rather they caused their own injury by choosing not to go into a branch in person.

The Ninth Circuit panel (Judges Wallace, Schroeder, and Forrest) reversed.  First, the panel found that denying non-U.S. citizens the same opportunity offered to citizens constitutes a concrete injury, even if plaintiffs could have ultimately secured the contract through another means.  In other words, discrimination itself is a concrete injury: “Because discrimination itself . . . can cause serious non-economic injuries to those persons who are denied equal treatment solely because of their membership in a disfavored group, Plaintiffs have alleged a concrete injury-in-fact sufficient to confer Article III standing.”  Second, the panel found that the injury was caused by BBVA’s policy and not by plaintiffs’ choice to access the bank online rather than in person.

The case now heads back to Judge Tigar for another attempt by BBVA to toss the case on F.R.C.P. Rule 12(b)(6) grounds. 

*Chattopadhyay v. BBVA USA, 21-15017 (9th Cir. October 26, 2021).