Alkutkar v. Bumble Inc.

Background

Harsh Alkutkar alleged that Bumble advertised two paid app features—SuperSwipes and Spotlights—as providing “Up to 10x more conversations” and “Up to 10x more matches.” He alleged that he purchased SuperSwipes and Spotlights but experienced no discernible increase, or an increase nowhere close to the advertised multiplier. He asserted claims for negligent misrepresentation, intentional misrepresentation, violations of California’s Consumers Legal Remedies Act and False Advertising Law, and violation of California’s Unfair Competition Law. He also sought class certification, injunctive relief, and damages.

Bumble’s updated terms, effective January 18, 2021, included an arbitration agreement and a class-action waiver. Bumble sent Alkutkar an email about the updated terms on January 19, 2021. The email stated that continued use of Bumble would constitute acceptance and described an opportunity for users who had signed up before January 18, 2021, to opt out. Bumble also displayed an in-app “Blocker Card” the first time such users accessed the app after the update. The card stated that the updated terms included an arbitration agreement and prevented access to the app until the user clicked an acceptance button.

Arbitration Agreement

Bumble’s records showed that Alkutkar accessed and used the app on March 4, 2021, using credentials associated with his account. Bumble argued that he could not have used the app, added photos, swiped on profiles, or later purchased premium features unless he had clicked the acceptance button. Alkutkar declared that he never saw the Blocker Card or clicked assent, and he challenged the authentication of Bumble’s electronic records.

The court applied California contract-formation principles. It held that the notice email was insufficient to establish assent because Bumble did not maintain records showing that Alkutkar received or opened the email. The Blocker Card, however, was a form of clickwrap agreement because it required affirmative action to access the app and clearly described the arbitration agreement and class-action waiver.

The court found that Bumble authenticated Alkutkar’s electronic assent by a preponderance of the evidence. It relied on the use of credentials associated with his account, the fact that app access and activity were a demonstrable consequence of clicking through the Blocker Card, and the timing of his March 4 access after the updated terms took effect. The court therefore found that Alkutkar electronically signed and agreed to the updated terms, including the arbitration agreement.

Delegation Provision and Unconscionability

The arbitration agreement included a delegation provision giving the arbitrator exclusive authority to decide the agreement’s scope and enforceability and related questions of arbitrability. The court found that this provision clearly and unmistakably delegated those threshold questions to the arbitrator.

Alkutkar argued that the delegation provision was unconscionable under California law. The court rejected that challenge. It held that the agreement was not procedurally unconscionable because users had a meaningful opportunity to opt out by sending an email within the specified period. The court also held that the provision was not substantively unconscionable because the arbitration agreement was bilateral and did not impose terms that were overly harsh or one-sided. The court rejected Alkutkar’s argument concerning possible shareholder derivative suits as unreasonable in the context of the user terms and irrelevant to this dispute.

Other Motions and Disposition

The court found that two exhibits to a declaration contained proprietary technical information and confidential personal information. It granted defendants’ unopposed administrative motion to file those exhibits under seal.

The court granted defendants’ motion to compel arbitration and stayed the lawsuit pending completion of arbitration. It did not reach the merits of defendants’ motion to dismiss the complaint and terminated that motion. The opinion does not state a separate ruling on the underlying false-advertising claims.