United States District Court, D. Oregon
PATRICIA HARRINGTON, EBONY PRICE, and CARLOTTA FRANKLIN, individually and on behalf of all others similarly situated, Plaintiffs,
AIRBNB, INC., Defendant.
Nicholas A. Kahl, Nick Kahl, LLC, Joshua L. Ross and Yoona
Park, Stoll Stoll Berne Lokting & Shlachter PC, Of
Attorneys for Plaintiffs.
D. Sacks, Reilley D. Keating, Taryn K. Williams, and Kennon
Scott, Stoel Rives LLP, Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
hearing from the parties on Defendant's motion to dismiss
Plaintiffs' putative class action complaint, United
States Magistrate Judge Youlee You issued her Findings and
Recommendation (“F&R”). Judge You recommended
that the Court dismiss the original complaint with leave to
file an amended pleading. The Court adopted in part Judge
You's F&R, and Plaintiffs filed their first amended
complaint (“FAC”). Defendant then moved to
dismiss the FAC with prejudice, and Judge You issued an
F&R recommending that the motion be granted without leave
to file a second amended complaint. Judge You concluded that
the FAC did not allege facts sufficient to show that
Defendant acted with discriminatory intent, which is required
to state a claim under the Oregon Public Accommodations Act
(“OPAA”). See Or. Rev. Stat.
§§ 659A.403, 659A.885(7). Because Judge You
concluded that Plaintiffs did not adequately allege
discriminatory intent, she did not reach the question of
whether Defendant's business is a place of public
accommodation, which is also required to state a claim under
the OPAA. Plaintiffs timely objected to the entirety of the
F&R concerning the FAC. After de novo review,
Court ADOPTS IN PART AND REJECTS IN PART the F&R at issue
and DENIES Defendant's motion to dismiss Plaintiffs'
Airbnb, Inc. (“Airbnb”) is a Delaware
corporation, headquartered in California. Charging various
fees for its services, Airbnb operates an online platform
that connects people looking to rent out their homes (or
rooms in their homes) with people looking for accommodations
for either lodging or tourism experiences. Airbnb does not
own any of the properties that it lists for rent. Instead, it
charges fees for processing each transaction (often to both
sides of a rental relationship), as well as for providing
advertising. In 2016, Airbnb's online platform
(consisting of websites and mobile apps) served more than
300, 000 renters in Portland.
person offering to rent out a room in his or her home (or
offering to rent his or her home) through Airbnb is referred
to as a “host.” A host must be registered with
Airbnb as a “member.” Travelers who rent rooms or
homes from a host using the Airbnb online platform are
referred to as “guests.” Although anyone can
search the Airbnb database of more than two million
properties worldwide, to contact a host online and request a
reservation and make a booking, a prospective guest also must
be a member of Airbnb, which requires the prospective guest
to have an account and profile with Airbnb. Airbnb requires
each member's profile to include, among other things, a
photograph of the member's face and the member's full
name. When a prospective guest sends a request to a host to
reserve or book an accommodation listed on the Airbnb online
platform, Airbnb sends information to the host about the
prospective guest, including the prospective guest's
photograph and full name. Although some Airbnb hosts may
elect to participate in Airbnb's “instant
booking” feature,  most hosts require that a prospective
guest first request a booking and be approved by the host
before the booking transaction may be completed by Airbnb.
Many hosts elect to receive booking requests only from
prospective guests whose profile includes a photograph.
Airbnb would then send the booking request to the host, who
reviews the prospective guest's name and photograph.
After reviewing the name and photograph, along with other
information, the host may confirm, reject, or simply not
respond to the request. If a host does not timely respond,
the request automatically expires.
Airbnb allows hosts to view the photograph and name of a
prospective guest before deciding whether to accept or deny a
booking request from that prospective guest, a host can deny
a booking request for any reason, including the race or color
of a prospective guest. Airbnb is aware that some hosts
refuse to rent accommodations to prospective guests on the
basis of race or color. Airbnb is also aware that
African-Americans are less likely to be confirmed for booking
as guests on Airbnb's online platform than are persons
who are not African-Americans. Because some hosts refuse to
rent accommodations to African-Americans, some accommodations
listed on Airbnb's online platform are unavailable to
African-American travelers. African-Americans, thus, do not
have full and equal access to the accommodations and services
offered on Airbnb's online platform.
does not dispute that some Airbnb hosts engage in racially
discriminatory conduct. Airbnb asserts that it takes
seriously the problem of racial discrimination on its online
platform. Nonetheless, Airbnb has continued to maintain its
policy of allowing hosts to wait to make a booking decision
until after the host has seen the prospective guest's
photograph, which discloses the race or color of the
prospective guest. Airbnb explains that requiring a
prospective guest to include a photograph of his or her face
allows a host to learn more information about the prospective
guest before deciding whether to accept a booking request
from that person. Airbnb states that viewing a photograph of
a prospective guest before accepting a booking allows a host
to conclude that a guest is “reliable, authentic, and
committed to the spirit of Airbnb.” Plaintiffs in this
putative class action are African-American women who reside
in Oregon and wish to become members of Airbnb and use the
services of Airbnb's online platform without being
subject to racial discrimination. Plaintiffs, however, are
only willing to join Airbnb if they will be able to take full
advantage of the accommodations offered on the Airbnb online
platform without the risk of racial discrimination based on
the inclusion of a guest's photograph.
filing this lawsuit, Ms. Harrington wrote a letter to Airbnb
requesting that it change its policies so that all
accommodations on its online platform may be available to all
prospective guests regardless of race or color. Ms.
Harrington specifically asked Airbnb to change its policy
that allows a host to wait to confirm a booking until after
the host has seen the full name and photograph of a
prospective guest. She expressly asked Airbnb not to provide
information to hosts before accepting a reservation or
confirming a booking from a prospective guest that would
reveal statutorily-protected immutable characteristics, like
race. Airbnb denied the request to change its policy, but
offered to assist Ms. Harrington in securing alternative
accommodations if she ever were discriminated against by an
Airbnb host. Airbnb also promised to investigate any reported
claims of racial discrimination and take appropriate action.
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may
not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). All reasonable inferences from the
factual allegations must be drawn in favor of the plaintiff.
Newcal Indus., Inc. v. Ikon Office Solution, 513
F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not,
however, credit the plaintiff's legal conclusions that
are couched as factual allegations. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009).
complaint must contain sufficient factual allegations to
“plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr, 652 F.3d at 1216. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). “The plausibility standard is not akin to a
probability requirement, but it asks for more ...