Troia v. Tinder, Inc., 4:19-CV-1647 RLW

VINNY TROIA, individually and on behalf of all similarly situated Plaintiffs, v. TINDER, INC., MATCH GROUP, LLC MATCH GROUP, INC.,and DOES 1 through 10, Defendants.

No. 4:19-CV-1647 RLW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

February 10, 2020

MEMORANDUM AND ORDER

This matter is before the Court on Defendants' Motion to Dismiss, or Alternatively Stay, and to Compel Individual Arbitration (ECF No. 5). This matter is fully briefed and ready for disposition.

BACKGROUND

Plaintiff Vinny Troia ("Troia") brought this Class Action Complaint (hereinafter "Compl."; ECF No. 1) individually and on behalf of all others similarly situated against Tinder, Inc. ("Tinder"), Match Group, LLC, Match Group Inc. (both Match entities referred to collectively as "Match"), and individual "Doe" defendants for Tinder's allegedly unfair and illegal age discriminatory pricing schedule and use of unconscionable contract provisions in violation of the Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. §§407.010, et seq.

Tinder markets itself as a dating application for mobile phones. (Compl, ¶20). On June 6, 2019, Troia created a Tinder account. He clicked the "Create a New Account" hyperlink on a sign-up screen. (Ciesla Decl., Ex. 1). Directly above the link that Troia clicked to create his account was this disclosure: "By creating an account or logging in, you agree to our Terms and Privacy Policy." (Id.) Both the Terms of Use ("TOU") and the Privacy Policy were hyperlinked. (Id.)¹ Troia further alleges that he purchased a "Tinder Plus" account for $19.99. (Compl., ¶27). Tinder Plus provides supplemental services in addition to the basic Tinder account, including options to "change your location," "hide distance," "rewind your last swipe," no paid advertisements, a limited number of "super swipes" per day, the ability to hide your age, and control over Tinder users you view. (Compl, ¶25). Tinder, however, had announced that it would charge $9.99 per-month for Tinder Plus to consumers under 30 years of age. (Compl., ¶26). Troia, who was over 30 years old, was charged $19.99 for his "Tinder Plus" account. (Compl, ¶28). Troia alleges that Tinder Plus's pricing plan constitutes an "unfair practice" in violation of the MMPA by charging him a higher rate because he was over 30 years old. (Compl., ¶¶32-64).

STANDARD OF REVIEW

Through the Federal Arbitration Act (the "FAA"), 9 U.S.C. § 1 et seq., Congress has established a strong federal policy in favor of arbitration. Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987); 9 U.S.C. § 2 ("a contract evidencing a transaction involving commerce ... shall be valid, irrevocable, and enforceable."). "Arbitration agreements are favored by federal law and will be enforced as long as a valid agreement exists 'and the dispute falls within the scope of that agreement.'" Shockley v. PrimeLending, 929 F.3d 1012, 1017 (8th Cir. 2019) (quoting Berkley v. Dillard's, Inc., 450 F.3d 775, 777 (8th Cir. 2006));Kim v. Tinder, Inc., No. CV 18-03093 JFW (AS), 2018 WL 6694923, at *2 (C.D. Cal. July 12, 2018) (quoting 9 U.S.C. § 4) ("The FAA provides that any arbitration agreement within its scope 'shall be valid, irrevocable, and enforceable.'"; 9 U.S.C. § 4 (a party may petition a federal district court for an order compelling arbitration of a dispute covered by an agreement to arbitrate). Arbitration is a matter of contract law, and favored status notwithstanding, parties cannot be compelled to arbitrate unless they have contractually agreed to be bound by arbitration. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). "The primary inquiry, therefore, is to determine whether the parties formed a valid contract that binds them to arbitrate their dispute." Shockley, 929 F.3d at 1017. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)) (internal marks omitted)( "[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit."); Hudson v. ConAgra Poultry Co., 484 F.3d 496, 500 (8th Cir. 2007). As the party seeking to compel arbitration, Defendants carry the burden to prove a valid and enforceable agreement. See Jackson v. Higher Educ. Loan Auth. of Mo., 497 S.W.3d 283, 287 (Mo. Ct. App. 2016).

Thus, a court considering a motion to compel arbitration must decide two threshold issues, sometimes referred to as "questions of arbitrability:" 1) whether a valid arbitration agreement exists between the parties; and 2) whether the dispute falls within the scope of the arbitration agreement. Faber v. Menard. Inc., 367 F.3d 1048, 1052 (8th Cir. 2004); Daisy Mfg. Co., Inc. v. NCR Corp., 29 F.3d 389, 392 (8th Cir. 1994); Giddings v. Media Lodge, Inc., 320 F. Supp. 3d 1064, 1069 (D.S.D. 2018).

DISCUSSION

I. Motion to Compel Arbitration

The TOU provides, in a Section called "Retroactive and Prospective Arbitration, Class-Action Waiver, and Jury Waiver," that the exclusive means of resolving any dispute or claim arising out of or relating to the TOU or Service shall be through binding, individual arbitration:

The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), or the Service, regardless of the date of accrual and including past, pending, and future claims, shall be BINDING ARBITRATION administered by the American Arbitration Association under the Consumer Arbitration Rules. . . . [Y]ou agree that you will not under any circumstances commence, maintain, or participate in any class action, class arbitration, or other representative action or proceeding against Tinder.

(ECF No. 19 at 5; Ciesla Decl. Exhibit 3, §15.1 (emphasis in original)).

Troia argues that he either did not agree to a TOU when he signed up for "Tinder Plus" or that such TOU was so inconspicuous that it was procedurally and substantively unconscionable and, therefore, "invalid and void ab initio." (ECF No. 16 at 1-3). Troia contends that the "TOU applicable to Tinder's free services are non-binding on Plaintiff's and class members' use of 'Tinder Plus'" because "they have fundamentally changed the bargain by giving Defendants hundreds of dollars per year in exchange for a materially different service." (ECF No. 16 at 4).

Troia does not dispute that he agreed to the TOU. (ECF No. 16 at 3). Troia only disputes whether he additionally assented to the TOU governing his Tinder Plus subscription, a paid service. As an initial matter, this issue is subject to arbitrability because the TOU provides "that the arbitrator shall determine all claims and all issues regarding the arbitrability of the dispute." (Ciesla Decl., Ex. 3, §15.3). The broad use of "any" dispute or claim from the Tinder Service mandates arbitration of this dispute. See Dickson v. Gospel for ASIA, Inc., 902 F.3d 831, 835 (8th Cir. 2018) (quoting Unison Co. v. Juhl Energy Dev., Inc., 789 F.3d 816, 818 (8th Cir. 2015) ("When an arbitration provision is broad, the federal policy favoring arbitration requires a districtcourt to send claims to arbitration 'as long as the underlying factual allegations simply touch matters covered by the arbitration provision.'"). The case law cited by Troia simply asserts that the parties must have meeting of the minds to the essential terms of a contract in order to have mutuality of agreement. See ECF No. 16 at 3-4 (citing Superior Edge, Inc. v. Monsanto Co.,964 F.Supp.2d 1017, 1035 (8th Cir. 2013)). The TOU clearly states in a Section called "Acceptance of Terms of Use Agreement," that: "By creating a Tinder account or by using any Tinder service, whether through a mobile device, mobile application or computer (collectively, the 'Service') you agree to be bound by (i) these Terms of Use . . . ." (Ciesla Decl. Ex. 3, §1). In addition, the Court finds that the language of the arbitration clause broadly applies to "any dispute or claim arising out of this Agreement (including any alleged breach thereof), or the Service..." (Ciesla Decl. Ex. 3, §15.1). The Court applies these provisions, as written, and holds Troia agreed to the TOU, including arbitration of any and all disputes.

Further, Troia provides no legal support for his claim that the TOU is not applicable to the Tinder Plus service simply because it is a for-cost service. The Court holds that the TOU, and Troia's assent thereto, applies to any Tinder service, whether such service is fee-based. In fact, the TOU details terms for "in app purchases," which further demonstrates that the TOU applies to Tinder Plus and other subscription services. (Ciesla Dec., Ex. 3, §10). Indeed, the Tinder TOU would not include a discussion of paid purchases if it applied only to Tinder's free service. The Court holds that the TOU applies to Troia's Tinder Plus subscription under the plain terms of the TOU.

Troia further argues that the hybrid wrap design² of the TOU fails to provide adequate notice that the user will be bound by the arbitration provision. Troia argues that the hybrid wrap design of Tinder's TOU failed to provide adequate inquiry notice: "(1) the 'notice' is as far away from the action button as it could possibly be; (2) the screen is cluttered with layers of 'potentially distracting content'; and (3) because of the ambiguity of the word 'Terms' along with the fact that the word is hardly even identifiable as a hyperlink compared to the text around it, Tinder's mechanism does not 'explicitly say' that by performing the action the user agrees to be bound by the terms." (ECF No. 16 at 9).

The Court disagrees. Troia was provided access to the TOU and accepted those terms, even if those terms were not presented on the same page as the acceptance button. Here, directly above the link that...