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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 1 of 22
`
`EDGE, A PROFESSIONAL LAW CORPORATION
`Daniel A. Rozenblatt (SBN 336058)
`daniel@edgelaw.com
`Seth W. Wiener (SBN 203747)
`seth@edgelaw.com
`1341 La Playa Street 20
`San Francisco, CA 94122
`Telephone: (415) 515-4809
`
`CAPSTONE LAW APC
`Tarek H. Zohdy (SBN 247775)
`tarek.zohdy@capstonelawyers.com
`Cody R. Padgett (SBN 275553)
`cody.padgett@capstonelawyers.com
`Laura E. Goolsby (SBN 321721)
`laura.goolsby@capstonelawyers.com
`1875 Century Park East, Suite 1000
`Los Angeles, California 90067
`Telephone: (310) 556-4811
`Facsimile: (310) 943-0396
`
`Attorneys for Plaintiff HARSH ALKUTKAR
`
`
`HARSH ALKUTKAR, individually and on
`behalf of all others similarly situated,
`
`Plaintiff,
`
`
`v.
`
`BUMBLE INC. and BUMBLE HOLDING
`LIMITED,
`
`
`
`Defendants.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION
`
` Case No. 4:22-cv-00422-PJH
`
`Assigned to the Hon. Phyllis J. Hamilton
`
`PLAINTIFF’S OPPOSITION TO
`DEFENDANTS’ MOTION TO DISMISS
`CLASS ACTION COMPLAINT
`
`
`
`Date:
`
`Time:
`Courtroom:
`
`Action Filed:
`Trial Date:
`
`June 30, 2022
`1:30 p.m.
`3, 3rd Floor
`
`January 22, 2022
`None Set
`
`
`
`
`
`
`
`
`CASE NO. 4:22-CV-00422-PJH
`
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
`
`

`

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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 2 of 22
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`
`I. 
`II. 
`III. 
`
`IV. 
`V. 
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`INTRODUCTION .............................................................................................................. 1 
`STANDARD FOR RULING ON A RULE 12(B)(6) MOTION TO DISMISS ................ 4 
`ARGUMENT ..................................................................................................................... 6 
`Plaintiff’s Complaint Plausibly Alleges that Bumble Made Affirmative
`A. 
`Misrepresentations about the Bumble App’s Premium Features ........................... 6 
`
` 
`
` 
`
`Plaintiff Adequately Pleads that a Reasonable Consumer Would Be
`Misled ......................................................................................................... 6 
`
`Defendant’s “Up To” Qualifier Does Not Cure the Misrepresentations,
`which Are Adequately Pled ........................................................................ 9 
`
`B. 
`
`Plaintiff’s Complaint Satisfies the Heightened Pleading Requirements
`under Rule 9(b) ..................................................................................................... 14 
`
`IN THE ALTERNATIVE, PLAINTIFF REQUESTS LEAVE TO AMEND ................. 17 
`CONCLUSION ................................................................................................................ 18 
`
`
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`CASE NO. 4:22-CV-00422-PJH
`-i-
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 3 of 22
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`TABLE OF AUTHORITIES
`
`
`FEDERAL CASES 
`Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009) ............................................................... 4
`Barker v. Riverside County Office of Educ., 584 F.3d 821 (9th Cir. 2009) ................................... 5
`Barron v. Reich, 13 F.3d 1370 (9th Cir. 1994) .......................................................................... 5, 9
`Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007) ............................................................... 4, 5
`Chester v. TJX Companies, 2016 WL 4414768 (C.D. Cal. Aug. 18, 2016) ................................ 11
`Comerica Bank v. McDonald, 2006 WL 3365599 (N.D. Cal. Nov. 17, 2006) ...................... 14, 17
`DeSoto v. Yellow Freight Sys., 957 F.2d 655 (9th Cir. 1992) ........................................................ 5
`Fink v. Time Warner Cable, 714 F.3d 739 (2d Cir. 2013) ........................................................... 13
`Fink v. Time Warner Cable, 837 F. Supp. 2d 279 (S.D.N.Y. 2011) ............................................ 13
`Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1092 (N.D. Cal. 2017) .............................. 17
`Herron v. Best Buy Co. Inc., 924 F. Supp. 2d 1161 (E.D. Cal. 2013) ....................... 2, 3, 9, 10, 12
`In re Toyota Motor Corp. Unintended Acceleration Litig., 754 F. Supp. 2d 1145
`(C.D. Cal. 2010) ....................................................................................................................... 14
`Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522 (9th Cir. 2008) ........................................ 17
`Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir.2001) ............................................................... 2
`Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) ............................................................................ 17
`Maloney v. Verizon Internet Servs., Inc., 413 F. App'x 997 (9th Cir. 2011) ................ 2, 10, 11, 12
`Moore v. Kayport Package Express, Inc., 885 F.2d 531 (9th Cir. 1989) ..................................... 14
`Neilson v. Union Bank of California, N.A., 290 F. Supp. 2d 1101 (C.D. Cal. 2003) ..................... 5
`Neubronner v. Milken, 6 F.3d 666 (9th Cir. 1993) ............................................................. 4, 14, 17
`Prescott v. Bayer Healthcare LLC, 2020 WL 4430958 (N.D. Cal. July 31, 2020) ....................... 6
`Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
`1986) ......................................................................................................................................... 5
`Smith v. Jackson, 84 F.3d 1213 (9th Cir. 1996) ............................................................................. 4
`Smith v. Keurig Green Mountain, Inc., 393 F. Supp. 3d 837 (N.D. Cal. 2019) ............................. 4
`Tomek v. Apple Inc., 636 F. App’x 712 (9th Cir. 2016) ............................................................... 12
`
`
`
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`CASE NO. 4:22-CV-00422-PJH
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`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 4 of 22
`
`Tomek v. Apple, Inc., 2013 WL 3872774 (E.D. Cal. July 25, 2013), aff’d, 636 F.
`App’x 712 (9th Cir. 2016) ........................................................................................................ 13
`Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ............................................ 14, 16
`Williams v. Cnty. of Alameda, 26 F. Supp. 3d 925 (N.D. Cal. 2014) ............................................. 2
`Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008) ..................................... 4, 5, 6, 11
`
`STATE CASES 
`Consumer Advocates v. Echostar Satellite Corp., 113 Cal. App. 4th 1351 (2003) ....................... 9
`Morgan v. AT & T Wireless Services, Inc., 177 Cal. App. 4th 1235 (2009) .................................. 6
`
`FEDERAL STATUTES 
`Fed. R. Civ. P. 9 ........................................................................................................... 4, 14, 15, 16
`Fed. R. Civ. P. 12 ............................................................................................................... 2, 4, 5, 9
`Fed. R. Civ. P. 15(a) ..................................................................................................................... 17
`Fed. R. Civ. P. 15(a)(2) ................................................................................................................ 17
`Fed. R. Civ. P. 8(a)(2) .................................................................................................................... 5
`
`
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`CASE NO. 4:22-CV-00422-PJH
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`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 5 of 22
`
`I.
`
`INTRODUCTION
`Defendants’ Motion to Dismiss Plaintiff Harsh Alkutkar’s Class Action Complaint
`(“Motion”) should be denied in its entirety with respect to Bumble Holding Limited (“Bumble”).1
`This is a class action for false advertising on the popular dating software application called
`Bumble (the “Bumble app”). The Bumble app works by presenting users with the profiles of
`other users, on which users can swipe left or right to “like” or “dislike” the other user. When two
`users mutually swipe right and “like” each other’s profile, they “match.” Once two users match,
`the Bumble app creates a private line of communication between them so they can start a
`conversation.
`To increase the likelihood of matching with other users, Bumble advertises premium
`features that users can purchase. Two of those features, SuperSwipes and Spotlights, are the
`subject of this action. To induce users to purchase SuperSwipes and Spotlights, Bumble falsely
`advertises they provide users with “Up to 10 more matches” and “Up to 10x more conversations.”
`
`
`
`(ECF No. 1 (“Compl.”) ¶ 3.) Plaintiff purchased SuperSwipes and Spotlights believing he would
`receive ten times, or close to ten times, more matches and conversations. In fact, Plaintiff
`received hardly any increase in matches, if any at all.
`
`1 Plaintiff does not oppose the Motion with respect to Defendant Bumble Inc.
`
`-1-
`CASE NO. 4:22-CV-00422-PJH
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 6 of 22
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`In moving to dismiss Plaintiff’s Complaint, Bumble does not (nor could it) justify its
`claim that its premium features provide up to 10x more matches and conversations. Indeed,
`Bumble cannot even genuinely assert that users receive half that amount. After all, Bumble
`itself has admitted that SuperSwipes result in 1x more matches—not 10x more.2 (Compl. ¶¶ 4–
`5 (“twice as likely” is equivalent to a 1x increase).)
`Instead, Bumble argues that a reasonable consumer would not be misled by the
`advertisements because they include an “up to” qualifier. (Mot. at 9:11–11:15.) Bumble’s
`argument relies primarily on Maloney v. Verizon Internet Servs., Inc., a case in which “up to”
`advertising was deemed not misleading because the defendants’ statements included “an
`explanation that each consumer’s maximum speed would vary depending on several listed
`customer-specific factors, including factors that applied to Plaintiff.” 413 F. App'x 997, 999
`(9th Cir. 2011). Here, in contrast to Maloney, Bumble’s advertisements do not contain any
`such explanation, and they certainly did not explain that most users would see no increase in
`matches whatsoever.
`In trying to fit a square peg (Maloney) in a round hole (the instant action), Bumble
`argues that a disclaimer buried in its Terms and Conditions of Use (“Terms”) provides the
`requisite explanation conspicuously absent from its advertisements. (Mot. at 11:6–15, n.9.) As
`a threshold matter, it is entirely improper on a motion to dismiss for Bumble to reference
`material outside the Complaint.3 But more importantly, “the plaintiff [in Maloney] read and
`was required to read defendants’ disclosures” and “it was not alleged that no consumers would
`reach the represented internet speeds.” Herron v. Best Buy Co. Inc., 924 F. Supp. 2d 1161,
`
`
`2 Even a 1x increase in matches is an exaggeration because most men who use the feature see no
`increase in matches whatsoever. (Complaint ¶ 5.)
`3 “‘As a general rule, a district court may not consider any material beyond the pleadings in ruling
`on a Rule 12(b)(6) motion.’” Williams v. Cnty. of Alameda, 26 F. Supp. 3d 925, 935 (N.D. Cal.
`2014) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001)). Here, the Terms
`are not incorporated by reference anywhere in the Complaint nor in Bumble’s advertisements.
`(See generally Compl.) While the Court has discretion to consider the materials outside the
`pleadings, should the Court consider the Terms referenced by Bumble, then the Motion “must be
`treated as summary judgment under Rule 56,” and Plaintiff should be entitled to notice and a
`reasonable opportunity to supplement the record. Id. (citations omitted).
`
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`CASE NO. 4:22-CV-00422-PJH
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 7 of 22
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`1173 (E.D. Cal. 2013) (distinguishing Maloney). Here, the facts are more akin to those in
`Herron, where the court held that “reasonable minds could differ as to whether the words ‘up
`to,’ without more, put Plaintiff on notice that his Laptop would never achieve close to the
`represented 3.32 hours of battery life.” Id. (internal quotation markets and citations omitted).
`Likewise, here, reasonable minds can differ as to whether the words “up to 10x more matches”
`and “up to 10x more conversations,” without more, put Plaintiff on notice that in fact, he would
`never achieve close to that level of increase in matches and conversations. See id. at 1172
`(“[M]ultiple courts have found that ‘up to’ representations may materially mislead reasonable
`consumers.”) (collecting cases).
`Bumble’s argument that Plaintiff ignores the context of the advertisements strains
`credulity. (Mot. at 6:20–9:10.) Bumble promised that its premium features would provide “Up
`to 10x more matches” and “Up to 10x more conversations.” Based on the advertisements,
`taken as a whole, Plaintiff reasonably understood that he would receive ten times, or close to
`ten times, more matches and conversations when using the premium features as compared to
`when he was not using them. It is difficult to fathom any other reasonable interpretation of
`Bumble’s advertisements—and it is telling that Bumble relies on a disclaimer in the fine print
`of its Terms and Conditions of Use just to support the argument that its advertisements were not
`misleading.4
`
`
`4 Never mind that the disclaimer on which Bumble relies neither appears nor is referenced in the
`advertisements and does not have any relevance to the premium features purchased by Plaintiff.
`For the record, the full paragraph of the disclaimer on which Bumble’s argument relies states:
`ADDITIONALLY, WE DO NOT MAKE ANY WARRANTIES THAT THE APP
`OR SITE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT
`YOUR USE OF THE APP OR SITE WILL MEET YOUR EXPECTATIONS, OR
`THAT THE APP, SITE, OUR CONTENT, ANY MEMBER CONTENT, OR ANY
`PORTION THEREOF, IS CORRECT, ACCURATE, OR RELIABLE. YOUR USE
`OF THE APP OR SITE IS AT YOUR OWN RISK. YOU ARE SOLELY
`RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. THE
`BUMBLE GROUP IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY
`USER. BUMBLE GROUP DOES NOT CONDUCT CRIMINAL BACKGROUND
`CHECKS ON ITS MEMBERS.
`Declaration of Kirendip Chheena in Support of Defendants’ Motion to Compel Arbitration, Ex. B
`at Section 8; see Mot. at 11:6–12, n.9 (cherry-picking text from Bumble’s Terms to make it
`appear as though the disclaimer is related to the advertisements at issue).
`
`-3-
`CASE NO. 4:22-CV-00422-PJH
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
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`
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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 8 of 22
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`Rather than address Plaintiff’s reasonable interpretation of the advertisements head-on,
`Bumble misconstrues Plaintiff’s allegations. To be sure, Plaintiff never alleged he thought an
`outcome of 10x was “guaranteed.” (Mot. at 1:8–10.) Plaintiff did expect, however, the 10x
`figure would be based on actual data, and he did not expect to later learn that Bumble
`previously claimed only a 1x increase—a claim which itself is dubious. (Compl. ¶¶ 4–5.)
`Lastly, Bumble argues the Complaint fails to satisfy Rule 9(b) because Plaintiff failed to
`keep track and allege the exact number of matches he received before and after paying for the
`premium features. (Mot. at 13:12–15:21.) Bumble is mistaken. To satisfy Rule 9(b), it is
`sufficient to allege that Bumble promised up to 10x more matches, and Plaintiff saw no
`increase, or hardly any at all. Moreover, the data Bumble is asking Plaintiff to produce is the
`type of data only Bumble would know. Plaintiff cannot be expected to have personal
`knowledge of those precise facts at this juncture. Cf. Neubronner v. Milken, 6 F.3d 666, 672
`(9th Cir. 1993). Thus, the Complaint satisfies Rule 9(b) because the allegations “are specific
`enough to give defendants notice of the particular misconduct which is alleged to constitute the
`fraud charged so that they can defend against the charge and not just deny that they have done
`anything wrong.” Smith v. Keurig Green Mountain, Inc., 393 F. Supp. 3d 837, 843 (N.D. Cal.
`2019) (citing Neubronner, 6 F.3d at 671).
`Plaintiff respectfully requests the Court deny the Motion in its entirety with respect to
`Defendant Bumble Holding Limited or, in the alternative, grant Plaintiff the opportunity to
`amend the Complaint and address any defects the Court may find.
`II.
`STANDARD FOR RULING ON A RULE 12(B)(6) MOTION TO DISMISS
`Pursuant to Rule 12(b)(6), a plaintiff must state “enough facts to state a claim to relief that
`is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). A claim has
`“facial plausibility” if the plaintiff pleads facts that “allow [ ] the court to draw the reasonable
`inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
`662, 129 S. Ct. 1937, 1949 (2009). In considering the motion, “[a]ll allegations of material fact
`are taken as true and construed in the light most favorable to the non-moving party.” Smith v.
`Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996); Williams v. Gerber Products Co., 552 F.3d 934,
`
`
`
`
`CASE NO. 4:22-CV-00422-PJH
`-4-
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
`
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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 9 of 22
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`937 (9th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) “requires only a ‘short and plain
`statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
`defendant fair notice of what the claim is and the grounds upon which it rests.’” Bell Atlantic
`Corp., 550 U.S. at 554 (quoting Fed. R. Civ. P. 8(a)(2)). Courts “draw inferences in the light
`most favorable to the plaintiff.” Barker v. Riverside County Office of Educ., 584 F.3d 821, 824
`(9th Cir. 2009); Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994) (“In evaluating a Rule
`12(b)(6) motion, we accept all material allegations in the complaint as true, and construe them in
`the light most favorable to plaintiff.”) In ruling on a motion to dismiss under Rule 12(b)(6), the
`duty of a court is merely to assess the legal feasibility of the complaint, not to assay the weight of
`the evidence which might be offered in support. Neilson v. Union Bank of California, N.A., 290
`F. Supp. 2d 1101, 1151 (C.D. Cal. 2003) (recognizing “the court may not weigh evidence in
`deciding a motion to dismiss” and citing cases).
`Thus, a “motion [to dismiss] is not a procedure for resolving a contest between the parties
`about the facts or the substantive merits of the plaintiff’s case.” Williams, 552 F.3d at 938.
`Indeed, “California courts . . . have recognized that whether a business practice is deceptive will
`usually be a question of fact not appropriate for decision on demurrer.” Id. (citing cases and
`reversing the granting of a motion to dismiss false advertising claims).
`Here, if the Court is inclined to dismiss any portion of the Complaint, Plaintiff
`respectfully requests leave to amend. See DeSoto v. Yellow Freight Sys., 957 F.2d 655, 658 (9th
`Cir. 1992) (leave to amend is only properly denied “where the amendment would be futile”); id.
`(quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986))
`(“If a complaint is dismissed for failure to state a claim, leave to amend should be granted ‘unless
`the court determines that the allegation of other facts consistent with the challenged pleading
`could not possibly cure the deficiency.’”).
`
`
`
`
`CASE NO. 4:22-CV-00422-PJH
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`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 10 of 22
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`III. ARGUMENT
`A.
`Plaintiff’s Complaint Plausibly Alleges that Bumble Made Affirmative
`Misrepresentations about the Bumble App’s Premium Features
`
`Plaintiff Adequately Pleads that a Reasonable Consumer Would Be
`Misled
`As Bumble acknowledges, the “reasonable consumer” standard governs the false
`advertising claims under the UCL, FAL, CLRA, and misrepresentation claims. Williams, 552
`F. 3d at 938. “Under the reasonable consumer standard, [a plaintiff] must show that members
`of the public are likely to be deceived.” Id. (internal quotation marks omitted); Morgan v.
`AT&T Wireless Services, Inc., 177 Cal. App. 4th 1235, 1256 (2009) (“The determination as to
`whether a business practice is deceptive is based on the likely effect such [a] practice would
`have on a reasonable consumer.”). Importantly, “[t]he California Supreme Court has
`recognized ‘that these laws prohibit ‘not only advertising which is false, but also advertising
`which [,] although true, is either actually misleading or which has a capacity, likelihood or
`tendency to deceive or confuse the public.’” Williams, 552 F. 3d at 938 (citation omitted).
`Accordingly, a claim that a business practice is “fraudulent” under the UCL or CLRA, for
`example, can be based upon representations that are untrue as well as representations that may
`be accurate on some level but nonetheless tend to mislead or deceive. Indeed, a perfectly true
`statement couched in a manner that it is likely to mislead or deceive the consumer, for instance,
`by failing to disclose other relevant information, is actionable. Id.
`It is a “rare situation in which granting a motion to dismiss is appropriate.” Williams, 552
`F. 3d at 939. Courts must accept a plaintiff’s factual allegations as true on a motion to dismiss.
`Prescott v. Bayer Healthcare LLC, 2020 WL 4430958, *8 (N.D. Cal. July 31, 2020). “‘[W]hether
`a practice is deceptive will usually be a question of fact not appropriate for decision on demurrer’
`or motions to dismiss.” Id. As a result, “the Court must accept Plaintiffs’ view of the reasonable
`consumer’s understanding of the [challenged statements].” Id.
`In moving to dismiss the Complaint, Bumble claims that its advertising, as a whole, is
`not misleading, arguing that the Court must look at the context of the statements and Bumble’s
`advertisement of “Up to 10x” more conversations or matches for SuperSwipes and Spotlights as
`
`
`
`
`CASE NO. 4:22-CV-00422-PJH
`-6-
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
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`

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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 11 of 22
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`
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`displayed above the purchase options for the two features. (Mot. at 6-7.) Bumble contends its
`advertising “would not mislead a reasonable consumer into believing that any purchase of a
`pack of SuperSwipes or Spotlights would grant them ten times more conversations or matches.”
`(Id. at 9:7-8.) Yet, that is precisely what Bumble’s advertising conveys.
`As described in the Complaint, Plaintiff plausibly alleges that a reasonable consumer
`would likely be misled. Plaintiff alleges that Bumble “induce[s] users to purchase Spotlights”
`by advertising “that users will receive ‘Up to 10x more matches,’” and likewise “induce[s]
`users to purchase SuperSwipes” by advertising “the users will receive ‘Up to 10x more
`conversations.’” (Compl. ¶ 3.) Plaintiff alleges that “[u]sers understand ‘10x more
`conversations’ to mean they will receive ten times more matches because a match is required
`before a conversation can start.” (Id.) As Plaintiff contends, the claims of up to ten times more
`matches and conversations “are gross exaggerations of the actual benefits these features
`provide” because even Bumble’s website and official Twitter account contradict these claims,
`promising that men who use SuperSwipes are only “twice as likely to get a match,” (id. ¶ 4),
`which is equivalent to an increase of 1x more matches—not 10x more matches. And actual
`accounts of men, including that of Plaintiff, demonstrate that “most men who use SuperSwipes
`see no increase in matches whatsoever.” (Id. ¶ 5; see also id. ¶ 23 (“In reality, these features
`provide hardly any increase in conversations or matches, if any at all.”).)
`Contrary to Bumble’s contention, the Complaint clearly provides the entire context of
`Bumble’s advertising and misrepresentations. The Complaint provides screenshots of the
`advertisements and states that SuperSwipes and Spotlights can be purchased in individual packs,
`ranging from a pack of one or two, to a five-pack, fifteen-pack, and a thirty-pack costing various
`amounts. (Compl. ¶¶ 20, 22.) The Complaint recounts Plaintiff’s purchase of a Pack of 15
`SuperSwipes for $22.99—a purchase that Plaintiff made because he believed, “[b]ased on
`Bumble’s advertising,” that “he would receive ten times, or close to ten times, more matches and
`conversations than he usually received without the use of SuperSwipes.” (Compl. ¶ 33.) In fact,
`“there was no discernable increase in the number of matches or conversations” as a result his
`purchases because “[i]n reality, these features provide hardly any increase in conversations or
`
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`CASE NO. 4:22-CV-00422-PJH
`-7-
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
`
`

`

`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 12 of 22
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`matches, if any at all.” (Id. ¶ 23, 33.) Plaintiff also purchased a Pack of 5 Spotlights for $12.99
`and Pack of 15 Spotlights for $29.99 on August 15, 2021 and September 9, 2021, respectively,
`based on Bumble’s advertising of “Up to 10x more matches.” (Id. ¶ 34.) Again, through these
`purchases, Plaintiff believed “that he would receive ten times, or close to ten time, more matches
`than he usually receives without the use of Spotlights.” (Id. ¶ 34.) Yet, “there was no discernable
`increase in the number of matches.” (Id.)
`The Complaint further specifically discusses the false representations and/or omissions
`at issue that were likely to deceive reasonable consumers. Plaintiff alleges that Bumble “failed
`to inform Plaintiff and Class Members that (i) SuperSwipes do not actually provide users with
`ten times, or close to ten times, the number of matches or conversations, and (ii) Spotlights do
`not actually provide users with ten times, or close to ten times, the number of matches.”
`(Compl. ¶ 84.) Bumble failed to disclose material facts such as “what percentage of users, if
`any, actually receive ten times more conversations or matches” and “what was the actual
`increase in conversations or matches users receive.” (Id. ¶ 47.) Bumble’s “false
`representations and material omissions were made to Plaintiff and Class Members for the
`purpose of affecting their decisions to purchase packs of SuperSwipes or packs of Spotlights.”
`(Id. ¶ 50.) Bumble “disseminated untrue and misleading advertisements by advertising false
`claims about the benefits of SuperSwipes and Spotlights.” (Id. ¶ 81.) Thus, Bumble’s
`“representations and/or omissions made in connection with its SuperSwipes and Spotlights
`were likely to deceive reasonable consumers by misrepresenting the true benefits, if any, of
`SuperSwipes and Spotlights.” (Id. ¶ 86.)
`Moreover, Plaintiff’s allegations do not ignore the context of the advertisements, and
`finding that a reasonable consumer would be likely to be deceived by the advertisements does
`not rest on consumers having tunnel vision “to the exclusion of everything else,” as Bumble
`surmises. (Mot. at 9:10.) As plausibly alleged in the Complaint, Plaintiff expected to receive
`ten times, or close to ten times, more matches when using the premium features as compared to
`when not using them. Bumble’s contention that consumers would understand “up to 10x more”
`to signify that the range of outcomes that could be obtained depending on the number of
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`CASE NO. 4:22-CV-00422-PJH
`-8-
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
`
`

`

`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 13 of 22
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`SuperSwipes or Spotlights purchased—i.e., a user who purchases fifty SuperSwipes will obtain
`ten times more conversations than a user who purchases five SuperSwipes—is unrealistic and,
`in any case, refuted by the allegations in the Complaint. See Barron, 13 F.3d at 1374 (“In
`evaluating a Rule 12(b)(6) motion, we accept all material allegations in the complaint as true, and
`construe them in the light most favorable to plaintiff.”) Plaintiff reasonably understood that “up
`to 10x more” meant that he would obtain ten times more matches and conversations when using
`the features than when not using the features. (Compl. ¶¶ 33-34.)
`Bumble’s claim that its advertising “when viewed ‘as a whole’” would not mislead a
`reasonable consumer is belied by the ample allegations of the Complaint that detail the whole
`context of its advertising, its specific misrepresentations and omissions, and how it deceived
`Plaintiff and would deceive reasonable consumers by misrepresenting the benefits of its special
`features. (Mot. at 9:6-8.) Accordingly, Plaintiff adequately alleges that a reasonable consumer
`would be misled by Bumble’s misrepresentations and omissions.
`
`
`
`Defendant’s “Up To” Qualifier Does Not Cure the Misrepresentations,
`which Are Adequately Pled
`
`Bumble contends the use of the phrase “up to” means a reasonable consumer would not be
`misled by its advertising as a matter of law. (Mot. at 9:11-12.) Not so. In fact, “multiple courts
`have found that ‘up to’ representations may materially mislead reasonable consumers.” Herron,
`924 F. Supp. 2d at 1172-1173 (E.D. Cal. 2013) (collecting cases); see also Consumer Advocates
`v. Echostar Satellite Corp., 113 Cal. App. 4th 1351, 1362 (2003) (reversing grant of summary
`judgment for defendants because it could not conclude no triable issue existed on whether
`defendants’ statements, which included an “up to” representation, were untrue or misleading).
`Bumble can cite no case law demonstrating that use of the “up to” qualifier means that the
`advertised benefits can, in reality, be zero or substantially less than what a reasonable consumer
`would reasonably expect. Such is the case here, where Plaintiff alleges that “[i]n reality, it
`appears that most men who use SuperSwipes see no increase in matches whatsoever,” (Compl. ¶
`5), and Plaintiff received “no discernable benefit whatsoever.” (Id. at 9.)
`Bumble also attempts to blame users for the ineffectiveness of their premium features,
`
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`CASE NO. 4:22-CV-00422-PJH
`-9-
`PLAINTIFF’S OPPOSITION TO DEFNDANT’S MOTION TO DISMISS CLASS ACTION COMPLAINT
`
`

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`Case 4:22-cv-00422-PJH Document 31 Filed 05/17/22 Page 14 of 22
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`attributing the lack of matches and conversations to the specifics of a user’s profile, the
`frequency of using the Bumble app, the day