Flores-Mendez v. Zoosk, Inc.

Background

Juan Flores-Mendez and Tracy Greenamyer used Zoosk, Inc.’s online dating platform. Zoosk offered both a free service and a paid premium subscription, and customers provided personal information when they joined. The plaintiffs alleged that they were injured by a January 2020 data breach by the group identified as the “ShinyHunters,” which they attributed to Zoosk’s alleged failure to adequately protect their information.

The plaintiffs moved to certify classes of similarly situated people. Greenamyer was the sole proposed class representative for the motion.

Zoosk’s Class-Action-Waiver Defense

Zoosk argued that Greenamyer had waived the right to represent a class by agreeing to its Terms of Use. Those terms stated that claims had to be brought individually and that users waived the right to participate in a class, collective, private-attorney-general, or other representative proceeding. The terms also included a jury-trial waiver and provisions concerning class arbitration.

The plaintiffs argued that Zoosk had waived enforcement of the class-action waiver by litigating for nearly two years without raising it. The court rejected that argument because Zoosk had asserted the defense in its answers to the first amended complaint and the operative complaint.

Enforceability of the Waiver

The court applied California law, under which a contract term is unenforceable if it is both procedurally and substantively unconscionable. Procedural unconscionability concerns oppression or surprise resulting from unequal bargaining power. Substantive unconscionability concerns terms that are overly harsh or one-sided.

The court found no procedural unconscionability. Although the Terms of Use were a standard-form contract, the court reasoned that Greenamyer had meaningful alternatives because many other dating applications were available. It also characterized the dating service as a nonessential recreational activity that she could have chosen not to use. The court noted that the plaintiffs did not adequately address this point.

The court also found no substantive unconscionability. It relied on the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, which upheld a similar class-action waiver and rejected the argument that requiring individual actions makes claims less financially attractive. The court said Zoosk’s Terms of Use closely mirrored the provision upheld in that decision and were valid for similar reasons.

Disposition

Because Greenamyer had agreed to a valid class-action waiver, the court denied the plaintiffs’ motion for class certification. The order addressed class certification and the enforceability of the waiver; it did not decide the underlying data-breach claims on their merits.