Creighton Meland v. Shirley Weber

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CREIGHTON MELAND, No. 20-15762

Plaintiff-Appellant,

D.C. No.

v. 2:19-cv-02288-

JAM-AC

SHIRLEY N. WEBER,* Secretary of

State of California, in her official

capacity as Secretary of State of the OPINION

State of California,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted March 10, 2021

San Francisco, California

Filed June 21, 2021

Before: M. Margaret McKeown, Sandra S. Ikuta, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Ikuta

*

Shirley Weber has been substituted for her predecessor, Alex

Padilla, as Secretary of State of California under Fed. R. App. P 43(c)(2).

2 MELAND V. WEBER

SUMMARY**

Civil Rights

The panel reversed the district court’s dismissal for lack

of standing of an action brought by a corporate shareholder

challenging the constitutionality of California Senate Bill

826, which requires all public corporations headquartered in

California to have a minimum number of females on their

boards of directors.

Plaintiff alleged that Senate Bill 826 (SB 826) requires

shareholders to discriminate on the basis of sex when

exercising their corporate voting rights, in violation of the

Fourteenth Amendment. The panel held that plaintiff

plausibly alleged that SB 826 requires or encourages him to

discriminate based on sex. Plaintiff therefore adequately

alleged an injury in fact, the only Article III standing element

at issue, and thus had Article III standing to challenge

SB 826. Plaintiff’s alleged injury was also distinct from any

injury to the corporation, and he could bring his own

Fourteenth Amendment challenge. Thus, plaintiff had

prudential standing to challenge SB 826. Finally, plaintiff’s

injury was ongoing and neither speculative or hypothetical,

and the district court could grant meaningful relief. This case

was therefore ripe and not moot.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MELAND V. WEBER 3

COUNSEL

Anastasia P. Boden (argued), Joshua P. Thompson, and

Daniel M. Ortner, Pacific Legal Foundation, Sacramento,

California, for Plaintiff-Appellant.

Lara Haddad (argued), Deputy Attorney General; Mark R.

Beckington, Supervising Deputy Attorney General; Thomas

S. Patterson, Senior Assistant Attorney General; Attorney

General’s Office, Los Angeles, California; for Defendant-

Appellee.

Christina Sandefur, Scharf-Norton Center for Constitutional

Litigation at the Goldwater Institute, Phoenix, Arizona, for

Amicus Curiae Goldwater Institute.

Thomas R. McCarthy and Tiffany H. Bates, Consovoy

McCarthy PLLC, Arlington, Virginia, for Amicus Curiae

Philanthropy Roundtable.

Melissa A. Holyoak and Anna St. John, Hamilton Lincoln

Law Institute, Washington, D.C., for Amicus Curiae

Hamilton Lincoln Law Institute.

Jonathan F. Mitchell, Mitchell Law PLLC, Austin, Texas;

Daniel I. Morenoff, Equal Voting Rights Institute, Dallas,

Texas; for Amicus Curiae Linda Chavez.

Amanda Narog, Bopp Law Firm, Terre Haute, Indiana;

Jennifer C. Braceras, Independent Women’s Law Center,

Winchester, Virginia; for Amicus Curiae Independent

Women’s Law Center.

4 MELAND V. WEBER

OPINION

IKUTA, Circuit Judge:

California Senate Bill 826 (SB 826) requires all

corporations headquartered in California to have a minimum

number of females on their boards of directors. Corporations

that do not comply with SB 826 may be subject to monetary

penalties. The shareholders of OSI Systems, Inc., a

corporation covered by SB 826, elect members of the board

of directors. One shareholder of OSI, Creighton Meland,

brought an action challenging the constitutionality of SB 826

on the ground that it requires shareholders to discriminate on

the basis of sex when exercising their voting rights, in

violation of the Fourteenth Amendment. We hold that

because Meland has plausibly alleged that SB 826 requires or

encourages him to discriminate on the basis of sex, he has

adequately alleged that he has standing to challenge SB 826’s

constitutionality. See Monterey Mech. Co. v. Wilson,

125 F.3d 702, 707 (9th Cir. 1997).

I

A

The California Legislature enacted SB 826 in 2018.1

According to the legislative findings, “[i]f measures are not

taken to proactively increase the numbers of women serving

on corporate boards, studies have shown that it will take

decades, as many as 40 or 50 years, to achieve gender parity

among directors.” S.B. 826(1)(f), 2017-2018 Leg., Reg. Sess.

1

SB 826 added sections 301.3 and 2115.5 to the California

Corporations Code. The text of these sections is set forth in the Appendix.

MELAND V. WEBER 5

(Cal. 2018). To address this, the California Legislature

mandated that public corporations with principal executive

offices located in California appoint a certain number of

female directors to their boards. SB 826 defines a “female”

as “an individual who self-identifies her gender as a woman,

without regard to the individual’s designated sex at birth.”

Cal. Corp. Code § 301.3(f)(1).

By the end of 2019, a covered corporation must have “a

minimum of one female director on its board.” Id. § 301.3(a).

By the end of 2021, any covered corporation with six or more

directors must have at least three female directors, any

covered corporation with five directors must have at least two

female directors, and any covered corporation with four or

fewer directors must have at least one female director. Id.

§ 301.3(b)(1)–(3). SB 826 also imposes reporting

requirements, including requiring the Secretary of State to

publish reports showing which corporations are in

compliance with the law. Id. § 301.3(d)(1).

To enforce SB 826, the law authorizes the Secretary of

State to impose fines for violations, ranging from $100,000

to $300,000 per violation. Id. § 301.3(e)(1)(A)–(C). Each

director seat required to be held by a female, which is not

held by a female, counts as a violation. Id. § 301.3(e)(2). To

date, the Secretary of State has not enacted regulations or

imposed fines.

B

Creighton Meland, Jr. is a shareholder of OSI Systems,

Inc. (OSI). Because OSI is a publicly traded company with

headquarters in California, it is subject to SB 826. The

shareholders of OSI, including Meland, are responsible for

6 MELAND V. WEBER

selecting the corporation’s directors by voting for directors at

annual meetings. See, e.g., id. § 600(b). OSI’s nominating

committee, as well as individual shareholders or groups of

shareholders, may recommend candidates or submit names of

candidates for election to OSI’s board of directors. To

become a member of OSI’s board, however, a candidate must

receive a plurality of shareholder votes.

In November 2019, Meland sued California’s Secretary

of State, alleging that SB 826 discriminates on the basis of

sex in violation of the Equal Protection Clause of the

Fourteenth Amendment and “seeks to force shareholders to

perpetuate sex-based discrimination.” The complaint alleged

that because OSI had seven male board members, SB 826

required OSI to add one female board member by the end of

2019 and two additional female board members by the end of

2021. The complaint also alleged that Meland intended to

vote on board-member nominees in the December 2019

annual shareholder meeting and at subsequent meetings.

Meland sought declaratory relief, injunctive relief, and

attorneys’ fees and costs.

At the December 2019 annual shareholder meeting, OSI

shareholders elected a female to fill a vacant board-member

seat. The state then moved to dismiss Meland’s complaint for

lack of Article III standing. The district court granted the

state’s motion, reasoning that Meland had not suffered an

injury in fact, because SB 826 imposed requirements and

potential penalties on corporations, not shareholders.

Moreover, the district court held that SB 826 did not prevent

Meland from voting for a male director. And the district

court concluded that, even assuming Meland had established

an individualized injury, his injury was not actual or

imminent, because OSI was in compliance with SB 826.

MELAND V. WEBER 7

Finally, the district court held that Meland did not have

prudential shareholder standing, because he had not suffered

a direct injury separate from any injury to OSI. Meland

timely appealed.

C

The district court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291. We “review de

novo an order granting a motion to dismiss for lack of

standing under Federal Rule of Civil Procedure 12(b)(1) and

construe all material allegations of fact in the complaint in

favor of the plaintiff.” Southcentral Found. v. Alaska Native

Tribal Health Consortium, 983 F.3d 411, 416–17 (9th Cir.

2020). “The party invoking federal jurisdiction bears the

burden of establishing” the elements of standing, and “each

element must be supported in the same way as any other

matter on which the plaintiff bears the burden of proof, i.e.,

with the manner and degree of evidence required at the

successive stages of the litigation.” Lujan v. Defs. of Wildlife,

504 U.S. 555, 561 (1992). On a motion to dismiss, “general

factual allegations of injury resulting from the defendant’s

conduct may suffice.” Id. In its motion to dismiss Meland’s

complaint under Rule 12(b)(1), the state made a facial

challenge, meaning it “accept[ed] the truth of the plaintiff’s

allegations but assert[ed] that they are insufficient on their

face to invoke federal jurisdiction.” Leite v. Crane Co.,

749 F.3d 1117, 1121 (9th Cir. 2014) (cleaned up).

8 MELAND V. WEBER

II

A

The key question before us is whether Meland has

adequately alleged that he has Article III standing to

challenge the constitutionality of SB 826. To have standing,

the party invoking federal jurisdiction must allege “a case or

controversy within the meaning of Art. III of the

Constitution.” Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 297 (1979).

Here, Meland bears the burden of establishing the three

“irreducible” elements of Article III standing. Lujan,

504 U.S. at 560. The “first and foremost of standing’s three

elements,” and the only element at issue here, is that the

plaintiff has suffered “an injury in fact.” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1547 (2016) (cleaned up). An injury

in fact is “an invasion of a legally protected interest which is

(a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical.” Lujan, 504 U.S. at 560

(cleaned up). For an injury to be actual or imminent, the

“threatened injury must be certainly impending.” Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (cleaned up).

“Allegations of possible future injury are not sufficient.” Id.

(cleaned up).

To confer standing under Article III, an injury in fact

must “affect the plaintiff in a personal and individual way,”

Spokeo, 136 S. Ct. at 1548 (citation omitted), that is beyond

“the psychological consequence presumably produced by

observation of conduct with which one disagrees,” Valley

Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 485 (1982). Although

MELAND V. WEBER 9

this means that an “abstract, generalized grievance” is

insufficient to confer standing, Buono v. Norton, 371 F.3d

543, 547 (9th Cir. 2004), a person may suffer a concrete,

personalized injury stemming from noneconomic harm, Ass’n

of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,

154 (1970); see also Valley Forge, 454 U.S. at 486 (“[W]e do

not retreat from our earlier holdings that standing may be

predicated on noneconomic injury.”).

Consistent with these standing principles, we have long

held that “[a] person required by the government to

discriminate by ethnicity or sex against others has standing to

challenge the validity of the requirement, even though the

government does not discriminate against him.” Monterey

Mech., 125 F.3d at 707. In Monterey Mechanical, a

contractor submitted the low bid on a construction project for

a state university. Id. at 704. Despite submitting the low bid,

the contractor did not get the job, because it did not comply

with a state statute requiring general contractors “to

subcontract percentages of the work to minority, women, and

disabled veteran owned subcontractors, or demonstrate good

faith efforts to do so.” Id. The contractor sued the

university’s trustees on the ground that the statute violated the

Equal Protection Clause. Id. at 705. We held that the

contractor had standing because, among other reasons, a

plaintiff suffers a personal injury sufficient to confer standing

when the government “requires or encourages” the plaintiff

to discriminate against others. Id. at 707. Because

“Americans view ethnic or sex discrimination as ‘odious,’”

id. (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200,

214 (1995)), and because “discrimination is wrong even if the

beneficiaries are members of groups whose fortunes we

would like to advance,” we concluded that a plaintiff “is hurt

by a law requiring it to discriminate, or try to discriminate,

10 MELAND V. WEBER

against others on the basis of their ethnicity or sex,” id. at

707–08.

We have subsequently relied on Monterey Mechanical’s

determination that a person required or encouraged to

discriminate on the basis of a protected class, “even if the

beneficiaries [of the discrimination] are members of groups

whose fortunes we would like to advance,” id. at 708, has

suffered a direct personal injury sufficient to confer standing.

In RK Ventures, Inc. v. City of Seattle, for example, we held

that the principal owners and shareholders of a corporation

that owned a nightclub had standing to sue Seattle because,

among other reasons, Seattle’s “efforts were aimed at forcing

[them] to discriminate against members of [a] protected

class.” 307 F.3d 1045, 1056–57 (9th Cir. 2002); see also

Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d

791, 797–98 (9th Cir. 2001) (holding that landlords had

standing to challenge a city ordinance that allegedly

compelled them to violate their tenants’ Fourth Amendment

rights).

Other circuits have cited Monterey Mechanical with

approval. See, e.g., Safeco Ins. Co. of Am. v. City of White

House, Tenn., 191 F.3d 675, 689 (6th Cir. 1999) (quoting

Monterey Mechanical for the proposition that “[a] person

required by the government to discriminate by ethnicity or

sex against others has standing to challenge the validity of the

requirement, even though the government does not

discriminate against him”); Lutheran Church-Mo. Synod v.

FCC, 141 F.3d 344, 350 (D.C. Cir. 1998) (holding that

“forced discrimination may itself be an injury” and quoting

Monterey Mechanical for the proposition that “[a] person

suffers injury in fact if the government requires or encourages

MELAND V. WEBER 11

as a condition of granting him a benefit that he discriminate

against others based on their race or sex”).

Therefore, if Meland’s allegations that SB 826 “requires

or encourages” him to discriminate on the basis of sex are

plausible, then he has suffered a concrete personal injury

sufficient to confer Article III standing.

B

California claims that Meland’s allegations are not

plausible, primarily because corporations, not their

shareholders, are the objects of SB 826. California points out

that on its face, SB 826 imposes requirements on specified

corporations, not on shareholders. Therefore, California

argues, Meland has not suffered a concrete, personal injury.

We disagree, because shareholders are one of the objects

of SB 826 and therefore have standing to challenge it. In

determining whether a plaintiff is the object of a government

enactment, courts consider the purpose of the government

enactment and its practical effect. For instance, where a rule

had the practical effect of requiring truck drivers to install

onboard devices that would monitor their conduct, the

Seventh Circuit concluded that the truck drivers had standing

to challenge the rule, even though on its face the rule

regulated only motor carriers. Owner-Operator Indep.

Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 656 F.3d

580, 585–86 (7th Cir. 2011); see also Stilwell v. Office of

Thrift Supervision, 569 F.3d 514, 519 (D.C. Cir. 2009)

(holding that “when an agency adopts a rule with the purpose

and substantially probable effect” of hindering a particular

party, that party “ordinarily will have standing to challenge

the rule”). When a plaintiff is the actual object of the

12 MELAND V. WEBER

government’s regulation, then “there is ordinarily little

question that the action or inaction has caused him injury,”

Lujan, 504 U.S. at 561–62, regardless whether the regulation

identifies the plaintiff by name.

Here, corporate shareholders are an object of SB 826. As

a general rule, shareholders are responsible for electing

directors at their annual meetings. E.g., Cal. Corp. Code

§§ 301(a), 600(b). OSI is no exception. Thus, the only way

a person can be elected to OSI’s board is if a plurality of

shareholders vote in favor of the nominee at an annual

shareholder meeting. OSI itself has no authority to elect its

own board members. For SB 826 to hasten the achievement

of gender parity—or indeed, for SB 826 to have any effect at

all—it must therefore compel shareholders to act.

Accordingly, the California Legislature necessarily intended

for SB 826 to require (or at least encourage) shareholders to

vote in a manner that would achieve this goal.

California next argues that even if shareholders must act

to nominate directors, nothing in SB 826 requires any

individual shareholder to vote for a female nominee.2 This

2

California also suggests that SB 826 does not require Meland to

make a discriminatory decision because board candidates are typically

nominated by OSI’s nominating committee, and the committee will ensure

that the slate of candidates complies with SB 826. At this juncture,

however, we “must accept as true all material allegations of the complaint,

and must construe the complaint in favor of the complaining party.” See

Warth v. Seldin, 422 U.S. 490, 501 (1975). The complaint does not allege

that OSI’s nominating committee has exclusive control over the slate of

board candidates or that the number of candidates included in the slate

always matches the number of available board seats. To the contrary,

Meland alleges that shareholders, or groups of shareholders, may submit

names of candidates for election to the board, an allegation that

undermines California’s suggestion. Accordingly, we do not consider

MELAND V. WEBER 13

argument fails, because SB 826 necessarily requires or

encourages individual shareholders to vote for female board

members. A reasonable shareholder deciding how to vote

could not assume that other shareholders would vote to elect

the requisite number of female board members. Therefore,

each shareholder would understand that a failure to vote for

a female would contribute to the risk of putting the

corporation in violation of state law and exposing it to

sanctions. At a minimum, therefore, SB 826 would

encourage a reasonable shareholder to vote in a way that

would support corporate compliance with legal requirements.

Indeed, the California Legislature must have concluded that

SB 826 would have such an effect on individual shareholders;

otherwise, if each individual shareholder felt free to vote for

a male board member, SB 826 could not achieve its goal of

reaching gender parity. And the legislative conclusion that

most shareholders would comply with SB 826’s mandate was

reasonable, as early results have shown.3 In short, “it strikes

us as odd that” the California Legislature enacted coercive

legislation to achieve gender parity, “but at the same time it

is asserting that these rules are not meant to change [any

shareholder’s] immediate behavior enough to confer standing

California’s argument, which is unsupported by the pleadings, at this stage

of the proceedings.

3

See, e.g., Allison Levitsky, Women Now Hold More Than 1 in 4

Public Company Board Seats in California, Silicon Valley Business

Journal (May 4, 2021), https://www.bizjournals.com/sanjose/news/202

1/05/04/women-sb-826.html (“Women now hold 26.5% of public

company board seats in California, a direct result of a law passed in

2018—Senate Bill 826—that has nearly quadrupled the rate of companies

adding women to their boards, according to a new report from the

California Partners Project.”).

14 MELAND V. WEBER

to challenge” the law. Owner-Operator Indep. Drivers Ass’n,

Inc., 656 F.3d at 586.

California’s argument that SB 826 does not require a

shareholder to discriminate, because the law does not impose

monetary sanctions directly on shareholders, also fails. A law

may require or encourage action whether or not it imposes a

monetary sanction for noncompliance. Indeed, “it would

strain credulity” to hold that a government enactment

requiring a regulated entity to change its practices “does not

require action immediately enough to constitute an

injury-in-fact,” whether or not a monetary sanction is

imposed. Texas v. Equal Emp. Opportunity Comm’n,

933 F.3d 433, 448 (5th Cir. 2019). Again, the state

Legislature must have concluded that imposing sanctions on

corporations would require—or at least

encourage—shareholders to vote for female nominees;

otherwise, the enactment would have been futile. One reason

imposing monetary sanctions on a corporation may coerce

shareholders is because such sanctions affect a shareholder’s

ownership interest in the corporation. See Franchise Tax Bd.

of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 336 (1990)

(holding that parent corporations (i.e., shareholders) may

have Article III standing to challenge taxes imposed on

subsidiaries, because “[i]f those taxes are higher than the law

of the land allows, that method threatens to cause actual

financial injury” to the shareholders “by illegally reducing the

return on their investments [in the subsidiaries] and by

lowering the value of their stockholdings”).4

4

SB 826 pressures shareholders in other ways as well. Meland

alleges that SB 826 also enforces its requirements through “public

shaming” by requiring the California Secretary of State to publish lists of

MELAND V. WEBER 15

We conclude that as a shareholder of OSI, Meland is

subject to the coercive effect of SB 826. In order to keep OSI

in compliance with California law and avoid potential

monetary sanctions (and alleged public shaming), Meland has

alleged that he is required or encouraged to make

discriminatory decisions in voting for board members. See

Monterey Mech., 125 F.3d at 707. As Meland put it in his

complaint, if SB 826 is declared unconstitutional and the state

is enjoined from enforcing it, then Meland “would no longer

have to worry that he might subject OSI to fines unless he

considers sex when selecting a board member.” Alleging this

kind of injury is “all that is required for Article III standing.”

Alcan Aluminium Ltd., 493 U.S. at 336. Therefore,

construing “all material allegations of fact in the complaint in

favor of the plaintiff,” Southcentral Found., 983 F.3d at

416–17, we hold that Meland has adequately alleged that he

has Article III standing here.

III

We now turn to California’s argument that Meland’s

§ 1983 claim was properly dismissed because, under state

law, he has brought a derivative shareholder claim and lacks

prudential standing as a matter of federal law.

Under the Supreme Court’s prudential standing rule, a

“plaintiff generally must assert his own legal rights and

interests, and cannot rest his claim to relief on the legal rights

or interests of third parties.” Alcan Aluminium Ltd., 493 U.S.

compliant and noncompliant corporations. See Cal. Corp. Code

§ 301.3(c)–(d).

16 MELAND V. WEBER

at 336 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).5

In the corporate context, “shareholders do not have standing

to assert the claims of the corporation, unless they do so

through derivative actions.” Coto Settlement v. Eisenberg,

593 F.3d 1031, 1037 (9th Cir. 2010). If a shareholder has “a

direct, personal interest” in his cause of action, however, then

the claim is not derivative and thus there are no prudential

standing concerns. Alcan Aluminium Ltd., 493 U.S.

at 336–37.

To determine whether a plaintiff’s claim is direct or

derivative, we apply the law of the state of incorporation,

Lapidus v. Hecht, 232 F.3d 679, 682 (9th Cir. 2000), because

the “presumption that state law should be incorporated into

federal common law is particularly strong” in the corporate

context, Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98

(1991). OSI is incorporated in Delaware. Under Delaware

law, whether an action is direct or derivative depends on

“whether the stockholder has demonstrated that he or she has

suffered an injury that is not dependent on an injury to the

corporation.” Tooley v. Donaldson, Lufkin & Jenrette, Inc.,

845 A.2d 1031, 1036 (Del. 2004).

Meland’s action is direct, and therefore he has prudential

standing to bring his claims, because Meland alleges that he

has been personally injured by an allegedly unconstitutional

5

In recent years, the Supreme Court has cast some doubt on

prudential standing rules as being “in some tension” with a federal court’s

“virtually unflagging” obligation to “hear and decide cases within its

jurisdiction.” Lexmark Int’l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 126 (2014) (cleaned up). But Lexmark did not address third

party standing, which “continues to remain in the realm of prudential

standing.” Ray Charles Found. v. Robinson, 795 F.3d 1109, 1118 n.9 (9th

Cir. 2015).

MELAND V. WEBER 17

law. See Monterey Mech., 125 F.3d at 707. Meland asserts

his own rights, not the rights of OSI, because he alleges that

SB 826 requires or encourages him “to discriminate against

other persons” in violation of the Fourteenth Amendment.

See id. at 708. And the injury that Meland alleges is not

“dependent on an injury” to OSI, because Meland has not

alleged an injury to OSI. In a similar context, we held that

principal owners and shareholders who were compelled to

discriminate on the basis of race had prudential standing to

bring a § 1983 action raising Fourteenth Amendment claims

(among others) on their own behalf. See RK Ventures,

307 F.3d at 1057.

The state claims that Meland lacks prudential standing

because he is alleging a harm to OSI based on fines that may

be imposed on OSI if OSI fails to comply with SB 826 in the

future. But Meland’s complaint does not allege that SB 826

violates the constitutional rights of OSI. Nor does Meland

allege that OSI has been injured by SB 826. Rather, Meland

alleges that SB 826 seeks to force him, as a shareholder, “to

perpetuate sex-based discrimination.” Thus, because Meland

rests his right to relief on an injury to himself rather than OSI,

his claim is direct rather than derivative, and there are no

prudential standing concerns under federal or state law.6 See

Tooley, 845 A.2d at 1035–36.

IV

Finally, we reject the state’s alternative grounds for

affirmance, not addressed by the district court, that this case

6

We do not address at this stage whether Meland has alleged a

cognizable constitutional claim. That issue is for the district court on

remand.

18 MELAND V. WEBER

is unripe and moot. “To qualify as a case fit for federal-court

adjudication, an actual controversy must be extant at all

stages of review, not merely at the time the complaint is

filed.” Arizonans for Official Eng. v. Arizona, 520 U.S. 43,

67 (1997) (citation and internal quotation marks omitted).

Ripeness and mootness both consider whether a plaintiff

meets this standing requirement at all points during the

litigation; indeed, both have been referred to as “standing on

a timeline.” Thomas v. Anchorage Equal Rts. Comm’n,

220 F.3d 1134, 1138 (9th Cir. 2000) (en banc); see also U.S.

Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980). “The

central concern of the ripeness inquiry is whether the case

involves uncertain or contingent future events that may not

occur as anticipated, or indeed may not occur at all.”

Richardson v. City & County of Honolulu, 124 F.3d 1150,

1160 (9th Cir. 1997) (cleaned up). The central question for

mootness is “whether changes in the circumstances that

prevailed at the beginning of litigation have forestalled any

occasion for meaningful relief.” Ctr. For Biological

Diversity v. Lohn, 511 F.3d 960, 963 (9th Cir. 2007) (citation

omitted). Plaintiffs bear the burden of proving that their

claim is ripe, see Colwell v. Dep’t of Health & Human Servs.,

558 F.3d 1112, 1121 (9th Cir. 2009), and defendants bear the

burden of establishing that a case is moot,7 Lohn, 511 F.3d

at 963.

7

The state also argues that this case is moot under the doctrine of

prudential mootness, meaning that the case may become moot in the

future even if it is not technically moot at this time. In light of a federal

court’s “virtually unflagging” obligation to “hear and decide cases within

its jurisdiction,” Lexmark, 572 U.S. at 126 (quotations omitted), we

decline to dismiss a live controversy as moot because it could become so

in the future. Cf. Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137,

1142 (9th Cir. 2009) (noting that “some of our sister circuits” have

adopted the doctrine of prudential mootness but declining to apply it).

MELAND V. WEBER 19

There is no ripeness or mootness issue here, because

Meland’s injury is not “conjectural or hypothetical,” Lujan,

504 U.S. at 560 (quotations omitted), and a ruling in

Meland’s favor can give him meaningful relief. Meland’s

alleged injury, as recognized by Monterey Mechanical and

RK Ventures, is being subjected to a law that requires or

encourages him to discriminate based on sex. That injury is

ongoing, because OSI’s shareholders are responsible for

electing directors at each annual meeting, Cal. Corp. Code

§§ 301(a), 600(b), and SB 826 continues to require or

encourage them to vote in a discriminatory manner in order

to meet the escalating female-director quota. Id.

§ 301.3(b)(1)–(3). Therefore, Meland will “suffer

hardship”—that is, he will continue to be required or

encouraged to discriminate on the basis of sex—if the district

court “decline[s] to consider the issues.” San Diego Cnty.

Gun Rights Comm. v. Reno, 98 F.3d 1121, 1132 (9th Cir.

1996). Because Meland will continue to suffer the alleged

violation of his individual rights, we reject the state’s

argument that this case is moot because OSI is currently in

compliance with SB 826. Meland’s requested relief would

end the requirement or encouragement to vote in a

discriminatory manner, and thus “effective relief can be

granted.” W. Coast Seafood Processors Ass’n v. Nat. Res.

Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011) (citation

omitted).

***

Because Meland has plausibly alleged that SB 826

requires or encourages him to discriminate based on sex,

Meland has adequately alleged an injury in fact, the only

Article III standing element at issue, and thus has Article III

standing to challenge SB 826. Meland’s alleged injury is also

20 MELAND V. WEBER

distinct from any injury to OSI, and he can bring his own

Fourteenth Amendment challenge. Thus, Meland has

prudential standing to challenge SB 826. Finally, Meland’s

injury is ongoing and neither speculative or hypothetical, and

the district court can grant meaningful relief. This case is

therefore ripe and not moot.

REVERSED.

MELAND V. WEBER 21

Appendix

SB 826 added sections 301.3 and 2115.5 to the California

Corporations Code. Section 301.3 reads:

(a) No later than the close of the 2019 calendar year, a

publicly held domestic or foreign corporation whose principal

executive offices, according to the corporation’s SEC 10-K

form, are located in California shall have a minimum of one

female director on its board. A corporation may increase the

number of directors on its board to comply with this section.

(b) No later than the close of the 2021 calendar year, a

publicly held domestic or foreign corporation whose principal

executive offices, according to the corporation’s SEC 10-K

form, are located in California shall comply with the

following:

(1) If its number of directors is six or more, the corporation

shall have a minimum of three female directors.

(2) If its number of directors is five, the corporation shall

have a minimum of two female directors.

(3) If its number of directors is four or fewer, the corporation

shall have a minimum of one female director.

(c) No later than July 1, 2019, the Secretary of State shall

publish a report on its internet website documenting the

number of domestic and foreign corporations whose principal

executive offices, according to the corporation’s SEC 10-K

form, are located in California and who have at least one

female director.

22 MELAND V. WEBER

(d) No later than March 1, 2020, and annually thereafter, the

Secretary of State shall publish a report on its internet website

regarding, at a minimum, information required by subdivision

(c) of Section 301.4 and all of the following:

(1) The number of corporations subject to this section that

were in compliance with the requirements of this section

during at least one point during the preceding calendar year.

(2) The number of publicly held corporations that moved

their United States headquarters to California from another

state or out of California into another state during the

preceding calendar year.

(3) The number of publicly held corporations that were

subject to this section during the preceding year, but are no

longer publicly traded.

(e)(1) The Secretary of State may adopt regulations to

implement this section. The Secretary of State may impose

fines for violations of this section as follows:

(A) For failure to timely file board member information with

the Secretary of State pursuant to a regulation adopted

pursuant to this paragraph, the amount of one hundred

thousand dollars ($100,000).

(B) For a first violation, the amount of one hundred thousand

dollars ($100,000).

(c) For a second or subsequent violation, the amount of three

hundred thousand dollars ($300,000).

MELAND V. WEBER 23

(2) For the purposes of this subdivision, each director seat

required by this section to be held by a female, which is not

held by a female during at least a portion of a calendar year,

shall count as a violation.

(3) For purposes of this subdivision, a female director having

held a seat for at least a portion of the year shall not be a

violation.

(4) Fines collected pursuant to this section shall be available,

upon appropriation by the Legislature, for use by the

Secretary of State to offset the cost of administering this

section.

(f) For purposes of this section, the following definitions

apply:

(1) “Female” means an individual who self-identifies her

gender as a woman, without regard to the individual’s

designated sex at birth.

(2) “Publicly held corporation” means a corporation with

outstanding shares listed on a major United States stock

exchange.

Cal. Corp. Code § 301.3.

Section 2115.5 reads:

(a) Section 301.3 shall apply to a foreign corporation that is

a publicly held corporation to the exclusion of the law of the

jurisdiction in which the foreign corporation is incorporated.

24 MELAND V. WEBER

(b) For purposes of this section, a “publicly held corporation”

means a foreign corporation with outstanding shares listed on

a major United States stock exchange.

Id. § 2115.5.