Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 1 of 21
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`HARSH ALKUTKAR,
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`Plaintiff,
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`v.
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`BUMBLE INC., et al.,
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`Defendants.
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`Case No. 22-cv-00422-PJH
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`ORDER GRANTING DEFENDANTS’
`MOTION TO COMPEL ARBITRATION
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`Re: Dkt. No. 30
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`Defendants’ motion to compel arbitration came on for hearing before this court on
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`August 4, 2022. Plaintiff appeared through his counsel, Daniel A. Rozenblatt and Cody
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`R. Padgett. Defendants appeared through their counsel, Kyle C. Wong, Sharon Song,
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`and Gia Jung. Having read the papers filed by the parties and carefully considered their
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`arguments and the relevant legal authority, and good cause appearing, the court hereby
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`Northern District of California
`United States District Court
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`rules as follows.
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`BACKGROUND
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`Plaintiff Harsh Alkutkar is a resident of Daly City, California, and a user of the
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`online dating app Bumble. Compl. ¶ 10. Defendant Bumble Inc. is a Delaware
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`corporation, with its principal place of business in Austin, Texas. Compl. ¶ 11.
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`Defendant Bumble Holding Limited is a corporation organized and operated in the United
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`Kingdom. Compl. ¶ 12. Bumble Holding Limited is a subsidiary of Bumble Inc. and is
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`listed as the recipient of payments made on the Bumble app. The court refers to
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`defendants collectively as “Bumble” throughout.
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 2 of 21
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`A.
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`Bumble App
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`Bumble operates a popular online dating, friendship, and professional networking
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`application (the “Bumble app”), on which users can create a profile with photos and
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`information about themselves. Compl. ¶ 1. The Bumble app launched in 2014 and has
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`over 1 million paying users. Compl. ¶ 17. Users of the Bumble app can create a profile
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`and use the app to swipe through and potentially match with other Bumble app users for
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`free. Compl. ¶ 18. A user is presented with other user profiles that can be swiped left to
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`“dislike” or right to “like” the other user’s profile. Compl. ¶ 1. If two users mutually right-
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`swipe each other’s profiles, a match is created. Compl. ¶ 2 n.1. When a match is made
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`between a man and a woman, a private line of communication is created between the
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`two in the Bumble app, and the woman can initiate a conversation. Compl. ¶ 2 n.1.
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`B.
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`Bumble App’s SuperSwipes and Spotlights
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`The Bumble app offers for sale certain premium features that “increase the
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`likelihood of matching with another user.” Compl. ¶¶ 2,18. Two of those features are
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`called SuperSwipes and Spotlights.
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`SuperSwipes allow a user to let potential matches know that he or she is
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`particularly interested in them. Compl. ¶ 19. Specifically, a user can use a SuperSwipe
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`to tap a yellow heart at the top right of other users’ profiles, which would inform the other
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`users that they’ve been “SuperSwiped” by the user before they swipe left or right on the
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`user’s profile. Compl. ¶¶ 4 n.2, 19. As provided by the screenshots included in the
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`complaint, Bumble app users can purchase SuperSwipes in packs of various quantities,
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`including 30, 15, five, and one. Compl. ¶¶ 3, 20.
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`With Spotlights, a user can activate the Spotlight mode, which advances a user’s
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`profile to the top of the list of potential matches so that it can be more viewable by other
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`users in a geographic area. Compl. ¶¶ 8 n.7, 21. A user can use one Spotlight to activate
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`the mode for 30 minutes or two Spotlights to activate the mode for 150 minutes. Compl.
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`¶ 8 n.7. Bumble app users can purchase Spotlights in packs of various quantities,
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`including 30, 15, five, and one. Compl. ¶¶ 3, 22.
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 3 of 21
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`C.
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`Plaintiff’s Allegations
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`Plaintiff alleges that Bumble advertises Spotlights as providing “Up to 10x more
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`matches” and SuperSwipes as providing “Up to 10x more conversations,” and that such
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`advertising is a “gross exaggeration[] of the actual benefits these features provide.”
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`Compl. ¶¶ 3-4. The “up to 10x more” statements appear in the screenshots below:
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`Compl. ¶ 3.
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`Plaintiff alleges that on March 21, 2021, he purchased a pack of 15 SuperSwipes
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`from within the Bumble app. Compl. ¶¶ 10, 33. Plaintiff claims that “[b]ased on”
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`Bumble’s statement that SuperSwipes would provide “Up to 10x more conversations,” he
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`believed he would receive “ten times, or close to ten times, more matches and
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`conversations than he usually received without the use of SuperSwipes.” Compl. ¶ 33.
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`Plaintiff further alleges that there was no discernable increase in his number of matches
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`or conversations as a result of using the SuperSwipes he purchased, and even if there
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`was, it would be “negligible and/or nowhere close to the 10x multiplier promised.” Compl.
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`¶ 33.
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`Plaintiff also claims that he subsequently purchased packs of five and 15
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`Spotlights, respectively, on August 15, 2021, and September 9, 2021, on the Bumble
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`app. Compl. ¶¶ 10, 34. Plaintiff alleges that based on Bumble’s statements that
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`Northern District of California
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 4 of 21
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`Spotlight would provide “Up to 10x more matches,” he believed he would receive “ten
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`times, or close to ten times, more matches than he usually receives without the use of
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`Spotlights.” Compl. ¶ 34. Plaintiff further contends that there was no discernable
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`increase in his number of matches as a result of using the Spotlights he purchased.
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`Compl. ¶ 34. Plaintiff alleges that even if there was an increase in his number of
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`matches, it “was negligible and/or nowhere close to the 10x multiplier promised.” Compl.
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`¶ 34.
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`D.
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`Bumble’s Terms and Arbitration Agreement
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`According to defendants’ records, plaintiff created a Bumble account on February
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`16, 2016, and has maintained an account ever since. See Chheena Decl. ¶ 6 (Dkt. 30-1
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`at 2-3). On or around January 19, 2021, Bumble emailed all users who had signed up for
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`a Bumble account before that date to inform them that Bumble’s Terms were being
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`updated to include, among other things, the Arbitration Agreement, effective as of
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`January 18, 2021 (the “Notice Email”). Chheena Decl. ¶ 8 (Dkt. 30-1 at 3). Bumble’s
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`records show that plaintiff received the Notice Email from Bumble on January 19, 2021,
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`with the subject line “UPDATED TERMS AND CONDITIONS OF USE.” Chheena Decl.
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`¶ 9 (Dkt. 30-1 at 3). The Notice Email advised users of the following in the first
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`paragraph:
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`We (Bumble Group) are updating our Terms and Conditions. .
`. . Effective as of January 18, 2021, updates have gone into
`effect for our Terms and Conditions of Use. Continued use of
`Bumble will constitute acceptance of the updated Terms and
`Conditions of Use. For your convenience, we’ve put together
`the following summary of some of the important changes,
`though we recommend reviewing the Terms and Conditions in
`full. You can find the full Terms and Conditions here:
`https://bumble.com/en/terms.
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`Chheena Decl., Ex. A (Dkt. 30-2). The blue-font URL in the Notice Email was a direct
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`hyperlink to the full version of the Terms containing the Arbitration Agreement. See
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`Chheena Decl., Ex. B (Dkt. 30-3). The Notice Email further informed users that the
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`updated Terms provide “that any covered dispute . . . between you and Bumble Group
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`that cannot be resolved informally or in small claims court will be settled by binding
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`Northern District of California
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 5 of 21
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`arbitration rather than through court proceedings,” but that “users who signed up before
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`January 18, 2021 will have the option to opt out of the arbitration agreement by 30 days
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`from January 19, 2021.” Chheena Decl., Ex. A (Dkt. 30-2).
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`Beyond the Notice Email, for all users that signed up for a Bumble account before
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`January 18, 2021, an in-app “Blocker Card” entitled “Updated terms and conditions of
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`use” popped up when those users opened the Bumble app for the first time after January
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`18, 2021. Chheena Decl. ¶ 11 (Dkt. 30-1 at 3-4). The Blocker Card stated that Bumble’s
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`updated Terms “contain an Arbitration Agreement that includes a class action waiver,
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`under which both you and Bumble agree to resolve disputes through final and binding
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`arbitration on an individual basis.” Chheena Decl. ¶ 11 (Dkt. 30-1 at 3-4). The Blocker
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`Card advised users that “[t]o use Bumble . . ., you must agree to the updated Terms” and
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`prevented Bumble users from accessing or using the Bumble app unless they clicked on
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`an orange colored “I agree” button. Chheena Decl. ¶¶ 11-13 (Dkt. 30-1 at 3-4). The
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`Blocker Card that was shown on the Bumble app looked like this image:
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 6 of 21
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`Chheena Decl. ¶ 11 (Dkt. 30-1 at 4). At all relevant times, the bold and underlined text
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`“Terms and conditions” in the blocker card was a direct hyperlink to an online copy of the
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`referenced Terms. Chheena Decl. ¶ 13 (Dkt. 30-1 at 4). The parties resolved through
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`briefing that the Blocker Card’s orange bubble included the word “I accept” instead of the
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`“I agree” shown above. Wong Decl. ¶ 14 (Dkt. 36-1 at 5).
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`Bumble’s records reflect that plaintiff accessed the app for the first time after the
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`Blocker Card was implemented on March 4, 2021, and they infer based on this access
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`that he clicked his assent to the updated Terms. Chheena Decl. ¶ 14 (Dkt. 30-1 at 3-4).
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`Bumble’s records indicate that plaintiff did not send an email to
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`bumbleoptout@team.bumble.com to opt out of the Arbitration Agreement. See id. ¶ 15.
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`The preamble to the Terms, in the third paragraph, notifies Bumble users in bold font that
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`“Section 13 of these Terms . . . contains an arbitration agreement that will, with
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`limited exceptions, require disputes between [Bumble and its users] to be
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`submitted to binding and final arbitration. If you are an existing user or a new user
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`who signed up for Bumble before January 18, 2021, you have a right to opt out of the
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`arbitration agreement pursuant to Section 13 below.” Chheena Decl., Ex. B (Dkt. 30-3 at
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`2) (emphasis in original).
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`E.
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`Procedural History
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`Northern District of California
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`Plaintiff brings the following five causes of action, all of which are based on
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`Bumble’s alleged false advertising for SuperSwipes and Spotlights:
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`(1) negligent misrepresentation,
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`(2) intentional misrepresentation,
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`(3) violation of California’s Consumers Legal Remedies Act,
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`(4) violation of California’s False Advertising Law, and
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`(5) violation of California’s Unfair Competition Law under the unlawful, fraudulent,
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`and unfair prongs.
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`Plaintiff seeks class certification; injunctive relief; actual and punitive damages;
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`attorneys’ fees and costs; and pre- and post-judgment interest. See Compl. at 20.
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 7 of 21
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`Plaintiff proposes the following class definition:
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`All persons who, on or after January 22, 2017, purchased a
`Pack of SuperSwipes or a Pack of Spotlights from within the
`Bumble app that were advertised to provide “Up to 10x more
`conversations” or “Up to 10x more matches.”
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`Compl. ¶ 35.
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`Defendants responded to the complaint with a motion to dismiss. Dkt. 28. One
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`day later, they filed the instant motion to compel arbitration. Dkt. 30. Defendants request
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`that the court consider the motion to compel arbitration first, without reaching the
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`arguments presented in support of dismissal.
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`DEFENDANTS’ ADMINISTRATIVE MOTION
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`There is a general presumption in favor of public access to federal court records.
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`“[T]he proponent of sealing bears the burden with respect to sealing. A failure to meet
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`that burden means that the default posture of public access prevails.” Kamakana v. City
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`& County of Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006). A party seeking to seal
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`materials submitted with a motion that is “more than tangentially related to the merits of
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`the case”—regardless whether that motion is “technically dispositive”—must demonstrate
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`that there are compelling reasons to keep the documents under seal. Ctr. for Auto Safety
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`v. Chrysler Grp., LLC, 809 F.3d 1092, 1101-02 (9th Cir. 2016).
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`Defendants filed an administrative motion to file under seal exhibits 1 and 2 to the
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`Wong declaration. See Dkt. 36-1. Exhibit 1 to the Wong declaration is an action log that
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`details the development process of adding the Blocker Card to the user interface of the
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`Bumble app. Sharon Song Decl. ¶ 4 (Dkt. 35-1 at 2). The action log includes confidential
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`and competitively sensitive information about the app’s operation and development.
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`Exhibit 2 to the Wong declaration includes confidential personal information relating to
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`plaintiff, including a metadata excerpt that includes the “internal encrypted user
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`identification number associated with Plaintiff’s unique login credentials for the Bumble
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`app and personal details about Plaintiff, e.g., age, country of residence, gender, etc.”
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`Dkt. 35 at 4. Defendants remark that it is not their burden to establish that plaintiff’s
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 8 of 21
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`personal information should be sealed, but they also ask to seal the exhibit to protect
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`Bumble’s confidential and competitively sensitive information, including internal codes
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`associated with app features and operations. In support of sealing, defendants cite to
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`Space Data Corp. v. X, No. 16-CV-03260-BLF, 2017 WL 11503233 (N.D. Cal. Sept. 25,
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`2017), where the court allowed sealing of “technical proprietary confidential information
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`and business planning and financial information, including trade secrets, which disclosure
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`could economically harm [the moving party’s] business.” Id. at *2.
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`Plaintiff makes no comment regarding defendants’ motion. Plaintiff does not
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`oppose the motion to seal. Plaintiff also does not seek to seal his personal information,
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`but because it is all in Bumble’s code, it is unclear what portions of the exhibits constitute
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`his information.
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`The court finds the Wong declaration exhibits more than tangentially relevant to
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`the merits of the case where they weigh on plaintiff’s demonstrated assent to arbitration,
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`as discussed further below. And the court accepts that the proprietary technical
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`information included within the exhibits, if disclosed, could economically harm
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`defendants’ business. Therefore, the court GRANTS the unopposed administrative
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`motion to file the two exhibits under seal.
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`DISCUSSION
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`A.
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`Legal Standard
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`Any party bound to an arbitration agreement that falls within the scope of the
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`Federal Arbitration Act (“FAA”), Title 9 U.S.C. §§ 1, et. seq., may bring a motion to
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`compel arbitration and stay the proceeding pending resolution of the arbitration. 9 U.S.C.
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`§§ 3-4; Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010, 1012 (9th Cir.
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`2004). The FAA requires the court to compel arbitration of issues covered by the
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`arbitration agreement. Dean Witter Reynolds, Inc., v. Byrd, 470 U.S. 213, 218 (1985).
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`The Ninth Circuit recently restated the analytical steps trial courts must follow in
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`assessing motions to compel arbitration: (1) they must first “resolve any challenge that an
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`agreement to arbitrate was never formed,” and (2) they must then “resolve any challenge
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 9 of 21
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`directed specifically to the enforceability of the delegation clause.” Caremark, LLC v.
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`Chickasaw Nation, 43 F.4th 1021, 1029 (9th Cir. 2022). If there exists a valid delegation
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`clause, the court must compel all arguments regarding the scope or enforceability of the
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`arbitration provision to the arbitrator. Id. at 1030. This assessment limits the scope of
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`review—the court does not address challenges to the validity of the contract as a whole,
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`leaving such disputes for the arbitrator to resolve in the first instance. Id. at 1029-30.
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`Regarding whether an agreement exists to arbitrate, the first step, the “first
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`principle” that underscores the U.S. Supreme Court’s arbitration decisions is that
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`“[a]rbitration is strictly a matter of consent, and thus is a way to resolve those disputes—
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`but only those disputes—that the parties have agreed to submit to arbitration.” Granite
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`Rock Co. v. Int’l B’hd of Teamsters, 561 U.S. 287, 299 (2010); First Options of Chicago,
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`Inc. v. Kaplan, 514 U.S. 938, 943 (1995). Thus, “a court may order arbitration of a
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`particular dispute only where the court is satisfied that the parties agreed to arbitrate that
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`dispute.” Granite Rock, 561 U.S. at 297 (emphasis in original).
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`Regarding the enforceability of a delegation clause, the second step, the FAA
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`provides that arbitration clauses “shall be valid, irrevocable, and enforceable, save upon
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`such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
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`Thus, state contract defenses may be applied to invalidate arbitration or delegation
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`clauses if those defenses apply to contracts generally. Doctor’s Assocs., Inc. v.
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`Casarotto, 517 U.S. 681, 687 (1996); Circuit City Stores, Inc. v. Adams, 279 F.3d 889,
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`892 (9th Cir. 2002). A delegation clause is “essentially a mini-arbitration agreement,
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`nested within a larger one.” Caremark, 43 F.4th at 1029.
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`Regarding the scope of the agreement, “any doubts concerning the scope of
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`arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp.
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`v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). Nevertheless, a motion to compel
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`arbitration should be denied if “it may be said with positive assurance that the arbitration
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`clause is not susceptible of an interpretation that covers the asserted dispute.” AT&T
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`Techs., Inc. v. Commc’n Workers, 475 U.S. 643, 650 (1986).
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 10 of 21
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`B.
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`Analysis
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`The overarching dispute in this motion is whether plaintiff agreed to arbitrate. “In
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`determining whether a valid arbitration agreement exists, federal courts ‘apply ordinary
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`state-law principles that govern the formation of contracts.’” Nguyen v. Barnes & Noble
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`Inc., 763 F.3d 1171, 1175 (9th Cir. 2014) (quoting First Options of Chi., Inc. v. Kaplan,
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`514 U.S. 938, 944 (1995)). Though Bumble highlights that the Terms include a Texas
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`choice of law provision, it acknowledges that there is no conflict between Texas and
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`California law for purposes of assent and enforceability of an arbitration agreement. Dkt.
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`36 at 7 n.2. The parties do not argue that a choice of law analysis is necessary at this
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`stage, and both rely on California authority. Id.; see also Dkt. 32 at 11-12. The questions
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`of contract formation and enforceability are thus assessed under California law. After first
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`assessing whether an agreement to arbitrate was formed, the court addresses whether
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`there existed an enforceable delegation provision in the Arbitration Agreement.
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`1.
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`Formation of Agreement to Arbitrate
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`The facts here require a two-step assessment to determine whether a valid
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`agreement was formed: first, whether either of Bumble’s two online presentations of the
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`updated Terms to plaintiff was effective to form an agreement, and second, whether
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`acceptance of the updated Terms can be authenticated as an act of plaintiff.
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`a.
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`Enforceability of Internet-Based Agreements
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`“Contracts formed on the Internet come primarily in two flavors: ‘clickwrap’ (or
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`‘click-through’) agreements, in which website users are required to click on an ‘I agree’
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`box after being presented with a list of terms and conditions of use; and ‘browsewrap’
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`agreements, where a website’s terms and conditions of use are generally posted on the
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`website via a hyperlink at the bottom of the screen.” Nguyen v. Barnes & Noble Inc., 763
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`F.3d 1171, 1175-76 (9th Cir. 2014). Importantly, “[u]nlike a clickwrap agreement, a
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`browsewrap agreement does not require the user to manifest assent to the terms and
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`conditions expressly . . . [a] party instead gives his assent simply by using the website.”
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`Id. (internal quotation marks omitted). “Indeed, ‘in a pure-form browsewrap agreement,
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 11 of 21
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`the website will contain a notice that—by merely using the services of, obtaining
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`information from, or initiating applications within the website—the user is agreeing to and
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`is bound by the site’s terms of service.’” Id. (quoting Fteja v. Facebook, Inc., 841 F.
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`Supp. 2d 829, 837 (S.D.N.Y. 2012)). The “validity of [a] browsewrap contract depends on
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`whether the user has actual or constructive knowledge of a website’s terms and
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`conditions.” Id. Thus, whether there is a valid agreement “turns on whether the website
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`puts a reasonably prudent user on inquiry notice of the terms of the contract,” which in
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`turn “depends on the design and content of the website.” Nguyen, 763 F.3d at 1177.
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`Bumble argues that plaintiff assented to its updated Terms, including the
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`Arbitration Agreement, (1) when he allegedly received the Notice Email on January 19,
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`2021, and thereafter continued to use the app, and (2) when he allegedly viewed the
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`Blocker Card and clicked “I agree” on March 4, 2021. See Dkt. 30 at 8, 10; Chheena
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`Decl. ¶¶ 9, 14 (Dkt. 30-1 at 3-4). The Notice Email and the Blocker Card constitute
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`different types of potential agreements to the updated Terms.
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`The Notice Email falls closer to the browsewrap type of agreement where it
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`advises that “[c]ontinued use of Bumble will constitute acceptance of the updated
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`Terms[.]” Chheena Decl. ¶ 9 (Dkt. 30-1 at 3); Wong Decl. ¶¶ 24-25 (Dkt. 36-1 at 8).
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`Defendants’ email record does not establish that plaintiff had actual or constructive
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`knowledge of the updated Terms because Bumble does not maintain records of the actual
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`emails sent to users, and it has no record that the email was received or even opened. See
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`Wong Decl. ¶ 26 (Dkt. 36-1 at 8-9). The Notice Email is thus insufficient to show plaintiff’s
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`assent to the new Terms and the included Arbitration Agreement.
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`In contrast to the browsewrap agreement suggested by the Notice Email
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`discussion above, the Blocker Card falls closer to the clickwrap form of Internet-based
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`contract formation. See Nevarez v. Forty Niners Football Company, Inc., 2017 WL
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`3492110, at *7 (N.D. Cal. Aug. 15, 2017) (explaining a middle-ground between these
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`approaches). The Blocker Card is not, however, a “pure-form clickwrap agreement” in
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`which “users typically click an ‘I agree’ box after being presented with a list of terms and
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 12 of 21
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`conditions of use.” Fteja, 841 F. Supp. 2d at 836-37. A Bumble user was not forced to
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`read the updated Terms before assenting to them, but the user was forced (and still is
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`forced) to click “I accept” demonstrating their assent to the updated Terms, which were
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`hyperlinked. Wong Decl. ¶ 14 (Dkt. 36-1 at 5). And the Blocker Card was robust in its
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`description of the exact portion of the updated Terms now at issue, the “Arbitration
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`Agreement that includes a class action waiver, under which both you and Bumble agree
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`to resolve disputes through final and binding arbitration on an individual basis, and not by
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`way of traditional litigation in state or federal court.” See Wong Decl. ¶ 13 (Dkt. 36-1 at
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`5). Though not a “pure-form clickwrap agreement,” the Blocker Card represents a type of
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`clickwrap agreement that should be enforced if accepted by plaintiff because clicking “I
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`accept” to proceed past the Blocker Card required affirmative action demonstrating
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`assent. The essence of the remaining dispute is whether plaintiff electronically signed
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`the updated Terms including the Arbitration Agreement—that is, whether plaintiff saw the
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`Blocker Card and clicked his assent.
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`b.
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`Plaintiff’s Assent to the Internet-Based Agreement
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` An electronic signature can be authenticated “in any manner, including a showing
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`of the efficacy of any security procedure applied to determine the person to which the
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`electronic record or electronic signature was attributable.” Ruiz v. Moss Bros. Auto Grp.,
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`232 Cal. App. 4th 836, 843 (2014) (quoting Cal. Civ. Code § 1633.9(a)) (emphasis in
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`original). The Court of Appeal made clear that “the burden of authenticating an electronic
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`signature is not great.” Id. at 844 (citing Cal. Civ. Code § 1633.9(a)). The court noted
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`this standard for authentication as it considered the sufficiency of evidence to
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`demonstrate whether an employee electronically signed an arbitration agreement. Ruiz,
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`232 Cal. App. 4th at 838. Ruiz, the employee, declared that he did not recall signing an
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`arbitration agreement. Id. at 840. Though the defendant’s business manager certified
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`that every employee was required to log into the an electronic human resources system
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`and assent to the agreement, she was unable to explain how she was sure that the
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`electronic signature was “the act of” Ruiz, she failed to address whether some other
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 13 of 21
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`employee could have written Ruiz’s name, and she failed to explain whether the date and
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`time next to the purported electronic signature automatically recorded the actual date and
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`time of signing. Id. at 843-44 (quoting Cal. Civ. Code § 1633.9(a)). The appellate court
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`affirmed the trial court’s determination that Moss Bros. did not provide enough evidence
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`to authenticate Ruiz’s electronic signature on the arbitration agreement. Id. at 838.
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`In another case considering the authentication of an online assent to arbitration,
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`Ngo v. PMGI Fin., LLC, No. 18-cv-05401-JCS, 2018 WL 6618316 (N.D. Cal. Dec. 18,
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`2018), the plaintiff similarly declared that he did not recall signing an arbitration
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`agreement. Plaintiff argued that the defendant’s failure to describe the security measures
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`taken to ensure that no one else could assent to the agreement left open the possibility
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`that someone else clicked to accept the arbitration agreement. Id. at *5. The court,
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`noting the mere preponderance standard and citing to Ruiz, determined that a
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`combination of factors, including unique credentials, a demonstrable consequence, and
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`an indicative timeline, supported the authentication of the plaintiff’s electronic signature
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`even though he declared he did not recall agreeing to arbitration. Id. at *6.
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`Here, defendants offer declarations and documents that they say provide an
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`electronic record of plaintiff’s click of the Blocker Card. See Chheena Decl. ¶¶ 11-14
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`(Dkt. 30-1 at 3-4); Wong Decl. ¶¶ 11-20 (Dkt. 36-1 at 4-8). Bumble avers that plaintiff
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`assented to its updated Terms when he allegedly viewed the Blocker Card and clicked “I
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`agree” on March 4, 2021. See Dkt. 30 at 8-10; Chheena Decl. ¶¶ 9, 14 (Dkt. 30-1 at 3-
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`4).1 Plaintiff declares to the contrary that he never saw the Blocker Card, that he never
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`clicked his assent to the updated Terms through the Blocker Card, and that defendants
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`purported evidence is not properly authenticated to show his assent. Alkutkar Decl., May
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`14, 2022, ¶¶ 3, 4 (Dkt. 32-2 at 2); Alkutkar Decl., July 6, 2022, ¶ ¶ 3, 4 (Dkt. 44-1 at 2).
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`1 The parties quibble about whether the button on the Blocker Card read “I accept” or “I
`agree.” Cf. Rozenblatt Decl., Ex. 5 (Dkt. 32-8 at 13) with Chheena Decl. ¶¶ 11-12 (Dkt.
`30-1 at 3-4). Plaintiff acknowledges that this distinction is not material. Dkt. 32 at 15.
`This distinction, corrected by defendants (Wong Decl. ¶ 14 (Dkt. 36-1 at 5-6)), does not
`change the court’s analysis.
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`Case 4:22-cv-00422-PJH Document 49 Filed 09/08/22 Page 14 of 21
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`As in Ruiz and Ngo, plaintiff argues that Bumble fails to describe the security
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`measures taken to ensure that he, rather than somebody else, clicked to accept the
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`Arbitration Agreement. But no case requires, as this plaintiff argues, that an electronic
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`record of a user’s assent to demonstrate a user’s assent to an electronic arbitration
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`agreement; rather, authentication can be made “in any manner.” Ruiz, 232 Cal. App. 4th
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`at 843. The combination of factors advanced by Bumble resemble those found sufficient
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`in Ngo.
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`First, unique credentials were used to access the app. Plaintiff registered for a
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`Bumble account in February 2016 using his Facebook account information and login
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`credentials. Wong Decl. ¶ 9 (Dkt. 36-1 at 4). Plaintiff reports that the Bumble app did not
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`require him to enter his unique login credentials for Facebook after the first time he
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`signed up for a Bumble account. Alkutkar Decl., July 6, 2022, ¶ 2 (Dkt. 44-1 at 2).
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`Plaintiff also notes that, during the time the app was installed on his phone, “others have
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`had access to [his] phone and have used it.” Alkutkar Decl., May 14, 2022, ¶ 8 (Dkt. 32-2
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`at 3). But plaintiff’s admittedly lackadaisical treatment of his phone, allowing others to
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`access his phone without oversight and leaving apps logged in, does not preclude
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`authentication. Bumble’s records show that plaintiff’s unique credentials, the same as
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`those internally assigned when plaintiff first registered for a Bumble account, were used
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`to identify plaintiff when he accessed the app on March 4, 2021. Wong Decl. ¶ 17 (Dkt.
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`36-1 at 7).
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`Second, plaintiff’s access and use of the app is a demonstrable consequence of
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`his assent to the updated Terms. Bumble’s records show that all users were shown the
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`Blocker Card the first time they signed into the app after January 19, 2021. Wong Decl.
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`¶ 16 (Dkt. 36-1 at 6-7). The declarations of Bumble’s affiliated engine