throbber
Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 1 of 11 PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`
`VINNY TROIA,
`individually and on behalf of
`all others similarly situated,
`
`Plaintiffs,
`
`v.
`
`TINDER, INC., MATCH GROUP, LLC,
`MATCH GROUP, INC., and
`DOES 1 through 10,
`
`Defendants.
`
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`
` Case No. 19-CV-1647
`
`JURY TRIAL
`DEMANDED
`
`CLASS ACTION COMPLAINT
`
`Plaintiff Vinny Troia, individually and on behalf of all others similarly situated, hereby files
`
`this, his Class Action Complaint, against Defendants Tinder, Inc. (“Tinder”), Match Group, LLC,
`
`Match Group, Inc. (both Match entities shall be referred to collectively as “Match”), and DOES 1
`
`through 10 (collectively “Defendants”) for Tinder’s unfair and illegal age-discriminatory pricing
`
`scheme and their use of unconscionable contract provisions, all in violation of the Missouri
`
`Merchandising Practices Act, Mo. Rev. Stat. chap. 407 (“MMPA”).
`
`I. PARTIES, JURISDICTION, AND VENUE
`
`Plaintiff Vinny Troia is a citizen and resident of St. Louis County, Missouri.
`
`Plaintiff brings this Class Action Complaint individually and on behalf of a putative class
`
`1.
`
`2.
`
`of all Missouri residents.
`
`3.
`
`Defendant Tinder, Inc. is a Delaware corporation having its principal place of business in
`
`Dallas, Texas.
`
`4.
`
`Defendant Match Group, LLC is a Delaware limited liability company also having its
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`principal place of business in Dallas, Texas. Match Group, LLC operates, owns, and/or is doing
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`1
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`

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`Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 2 of 11 PageID #: 2
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`business as Tinder, which is one of its subsidiaries.
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`5.
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`Defendant Match Group, Inc. is a Delaware corporation also having its principal place of
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`business in Dallas, Texas. Match Group, Inc. also operates, owns, and/or is doing business as Tinder,
`
`which is one of its subsidiaries.
`
`6.
`
`The above-named Defendants, and their subsidiaries and agents, are collectively referred
`
`to herein as “Defendants.” The true names and capacities of the Defendants sued herein as DOES 1
`
`through 10, inclusive, are currently unknown to Plaintiff, who therefore sues such Defendants by
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`fictitious names. Each of the Defendants designated herein as a DOE is legally responsible for the
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`unlawful acts alleged herein. If necessary, Plaintiff will seek leave of Court to amend the Complaint to
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`reflect the true names and capacities of the DOE Defendants when such identities become known.
`
`7.
`
`At all relevant times, each and every defendant was acting as an agent and/or employee
`
`of each of the other Defendants, and was the owner, agent, servant, joint-venturer and employee, each of
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`the other and each was acting within the course and scope of its ownership, agency, service, joint
`
`venture and employment with the full knowledge and consent of each of the other Defendants. On
`
`information and belief, each of the acts and/or omissions complained of herein was made known to, and
`
`ratified by, each of the other Defendants.
`
`8.
`
`At all relevant times, each defendant was the successor of the other and each assumes the
`
`responsibility for each other’s acts and omissions.
`
`9.
`
` This court has jurisdiction over this asserted class action pursuant to 28 U.S.C.
`
`§1332(d)(2), because the matter in controversy exceeds $5,000,000, exclusive of interest and costs; and
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`any member of the class of plaintiffs is a citizen of a State different from Defendants. The Court’s
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`jurisdiction includes any ancillary or pendent state-law claims. 28 U.S.C. § 1367.
`
`10.
`
`Venue is proper in the Eastern District of Missouri pursuant to 28 U.S.C. § 1391(b),
`
`as a substantial part of the events or omissions giving rise to the claims in this action occurred in this
`
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` 2
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`

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`district.
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`11.
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`This forum also is superior in convenience to any other, as all of the Plaintiffs are or were
`
`Missouri citizens and are located in Missouri, the underlying contracting that this lawsuit arises from
`
`occurred in Missouri, and the acts complained of violated Missouri law.
`
`12.
`
`Any later-asserted choice-of-venue or forum-selection language impugning venue in this
`
`district is, inter alia, unconscionable as a matter of law and against public policy and, hence,
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`inapplicable and unenforceable.
`
`13.
`
`This asserted class action comports with Federal Rule of Civil Procedure 23. Plaintiffs’
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`identities can be ascertained from Defendant’s records, but are so numerous that simple joinder of all
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`individuals is impracticable. This action raises questions of law and fact common among Plaintiffs. The
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`claims of lead Plaintiff is typical of all Plaintiffs’ claims. Named Plaintiff will fairly and adequately
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`protect all Plaintiffs’ interests, and is represented by attorneys qualified to pursue this action. More
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`specifically:
`
`14.
`
`Class definition: Plaintiff Troia bring this action on behalf of himself and a class of
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`similarly-situated persons defined as follows: All persons in Missouri that, at any time during the Class
`
`Period, purchased “Tinder Plus” (as defined infra), who were over the age of 30, and who did not
`
`receive a discount for the Tinder Plus service due to their age. The Class Period begins five years prior
`
`to the date of the filing of this Complaint, and ceases upon the date of the filing of this Complaint.
`
`Excluded from the Class are: (a) any judges presiding over this action and members of their staffs and
`
`families; (b) the Defendants and their subsidiaries, parents, successors, and predecessors; any entity in
`
`which the Defendants or their parents have a controlling interest; and the Defendants’ current or former
`
`officers and directors; (c) employees (i) who have or had a managerial responsibility on behalf of the
`
`organization, (ii) whose act or omission in connection with this matter may be imputed to the
`
`organization for liability purposes, or (iii) whose statements may constitute an admission on the part of
`
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` 3
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`

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`Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 4 of 11 PageID #: 4
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`the Defendants; (d) persons who properly execute and file a timely request for exclusion from the class;
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`(e) the attorneys working on the Plaintiffs’ claims; (f) the legal representatives, successors, or assigns of
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`any such excluded persons; and (g) any individual who assisted or supported the wrongful acts
`
`delineated herein.
`
`15.
`
`Numerosity: Upon information and belief, the Class includes thousands, if not tens of
`
`thousands, of individuals on a statewide basis, making their individual joinder impracticable. Although
`
`the exact number of Class members and their addresses are presently unknown to Plaintiff, they are
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`readily ascertainable from Defendants’ records.
`
`16.
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`Typicality: Plaintiff’s claims are typical of those of the Class because all Plaintiffs were
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`injured by the Defendants’ uniform wrongful conduct, specifically, employing an “unfair practice”
`
`under the MMPA, using discriminatory pricing and using unconscionable contract terms in offering and
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`selling “Tinder Plus” to Plaintiffs.
`
`17.
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`Adequacy: Plaintiff Troia is an adequate representative of the Class because his interests
`
`do not conflict with the interests of the Class members he seeks to represent, he has retained competent
`
`and experienced counsel, and he intends to prosecute this action vigorously. The interests of the Class
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`will be protected fairly and adequately by Troia and his counsel.
`
`18.
`
`Commonality: Common questions of law and fact exist as to all Class members and
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`predominate over any questions affecting only individual members, such as: (a) whether the Defendants’
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`discriminatory pricing of “Tinder Plus” is an “unfair practice” pursuant to the MMPA; (b) whether the
`
`arbitration agreement Defendants force “Tinder Plus” customers to agree to is unconscionable pursuant
`
`to the MMPA; (c) whether the arbitration agreement Defendants force “Tinder Plus” customers to agree
`
`to is unenforceable due to unconscionability and/or in violation of Missouri public policy including the
`
`MMPA; (d) whether and to what extent the Class members were injured by Defendant’s illegal conduct;
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`(e) whether the Class members are entitled to statutory damages, (f) whether the Class members are
`
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` 4
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`

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`Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 5 of 11 PageID #: 5
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`entitled to declaratory relief; and (g) whether the Class members are entitled to injunctive relief.
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`19.
`
`Superiority: This class action is appropriate for certification because class proceedings
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`are superior to all other available methods for the fair and efficient adjudication of this controversy. The
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`damages suffered by the individual Class members will likely be small relative to the burden and
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`expense of individual prosecution of the complex litigation necessitated by the Defendant’s wrongful
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`conduct. Thus, it would be extremely difficult for the individual Class members to obtain effective
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`relief. A class action presents far fewer management difficulties and provides the benefits of a single
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`adjudication, including economies of time, effort, and expense, and uniformity of decisions.
`
`II. BACKGROUND
`
`Facts Particular to Troia and Representative of the Proposed Class
`
`20.
`
`In or around June of 2019, Plaintiff downloaded an application (“app”) called Tinder
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`from Defendant onto his iphone mobile device. Tinder markets itself as a dating application for mobile
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`phones.
`
`21.
`
`Tinder utilizes a user’s location using the GPS built into their phone, then uses other
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`information (some provided by the user) to create a profile. A Tinder profile is made up of a user’s first
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`name, occupation, age, and photos.
`
`22.
`
`Tinder then finds a user potential matches within a nearby geographical radius, and
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`suggests potential matches, which a user has the option to like or pass.
`
`23.
`
`Tinder’s primary draw for consumers is a feature known as a “swipe,” which is the act of
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`swiping one’s finger on their smart phone’s touch screen within the Tinder app either right or left, in
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`order to approve or pass, respectively, on a suggested potential match. If both users “swipe right” and
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`“like” one another, Tinder will create a direct line of communication between the individuals, and allow
`
`them to start messaging one another.
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`In downloading the Tinder app in June of 2019, Plaintiff was informed, by various
`
`
` 5
`
`24.
`
`

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`Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 6 of 11 PageID #: 6
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`advertisements, promotions, and websites, that Defendants’ app was a “free online dating app.”
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`25.
`
`On information and belief, in March of 2015, Tinder introduced its “Tinder Plus”
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`services, a Tinder account that provides supplemental services to the basic Tinder account, such as an
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`option to “change your location,” “hide distance,” “rewind your last swipe,” no paid advertisements, a
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`limited number of “super swipes” per day, the ability to hide your age, and control over who you see.
`
`26.
`
`Tinder announced publically at that time that it would be charging $9.99 per-month to
`
`consumers for these services (at a 50% discount), but notably, that any individual who was over 30 years
`
`of age would be charged $19.99 per-month for the identical services.
`
`27.
`
`In June of 2019, Plaintiff, who at the time was over the age of 30, purchased a
`
`subscription to the “Tinder Plus” app, for $19.99 per-month, to take advantage of the supplemental
`
`services provided.
`
`28.
`
`Plaintiff purchased a “Tinder Plus” account for $19.99 per month, and was not offered a
`
`discount by Tinder, due to his being over 30 years of age.
`
`29.
`
`On information and belief, Defendants already have been sued in various other
`
`jurisdictions across the country for employing an illegal and discriminatory pricing scheme in relation to
`
`“Tinder Plus.”
`
`30.
`
`Nonetheless, despite the obvious unfairness and discriminatory nature of the pricing
`
`scheme, Defendants continue to charge individuals over 30 years of age approximately twice as much
`
`for the exact same service, making discounts available to customers on the sole basis of their age.
`
`31.
`
`Defendants offer no discount for the “Tinder Plus” services other than that offered to
`
`consumers based solely upon their age.
`
`32.
`
`When Plaintiff purchased Tinder Plus in June of 2019, Tinder treated him unfairly,
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`discriminating against him due to his age because he could have obtained a better rate if he were under
`
`30 years of age, or represented to Tinder that he was less than 30 years of age. Plaintiff was not made
`
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` 6
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`

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`Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 7 of 11 PageID #: 7
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`aware of any potential discounts at the time of his purchase of “Tinder Plus.”
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`33.
`
` Defendants’ discriminatory pricing scheme is arbitrary and constitutes an “unfair
`
`practice” in violation of the MMPA.
`
`34.
`
`The terms of the MMPA, particularly the term “unfair practice,” must be liberally
`
`construed to protect consumers.1
`
`35.
`
`The 2019 version of the Merriam-Webster dictionary provides, as one definition of
`
`“unfair,” something that is “not equitable in business dealings.” “Equitable” is defined as “dealing fairly
`
`and equally with all concerned.” Obviously, Defendants’ age-discriminatory pricing scheme does not
`
`deal “equally” with those over 30 years of age who are arbitrarily forced to pay approximately twice as
`
`much as younger persons for the exact same service.
`
`36.
`
`Moreover, a Missouri regulation, 15 Mo. C.S.R. § 60–8.020, draws its authority from,
`
`and was promulgated to enforce, the MMPA; Section 60-8.020 provides that an “unfair practice” is any
`
`practice which, inter alia, “[o]ffends any public policy as it has been established by the Constitution,
`
`statutes or common law of this state … or … is unethical, oppressive or unscrupulous.”
`
`37.
`
`Defendants’ completely arbitrary and discriminatory pricing scheme offends the same
`
`Missouri public policy underlying Missouri’s express prohibitions against age discrimination in multiple
`
`other areas, the public policy that all Missouri citizens are entitled to full and equal accommodations,
`
`advantages, facilities, privileges, and/or services regardless of factors like age, sex, and/or race;
`
`moreover, Defendants’ arbitrary and discriminatory pricing scheme
`
`is both “unethical” and
`
`“unscrupulous.”
`
`38.
`
`In addition, 15 C.S.R. § 60–8.020 further provides that an “unfair practice” is any
`
`practice which, inter alia, “[o]ffends any public policy as it has been established by … the Federal Trade
`
`1 According to the Supreme Court of Missouri, “[t]he literal words [of the MMPA] cover every practice
`imaginable and every unfairness to whatever degree.” Ports Petroleum Co. Inc. of Ohio v. Nixon, 37
`S.W.3d 237, 240 (Mo. 2001).
`
` 7
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`
`
`

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`Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 8 of 11 PageID #: 8
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`Commission, or its interpretive decisions…”
`
`39.
`
`The Federal Trade Commission
`
`(“FTC”) has enforcement or administrative
`
`responsibilities under multiple laws, including the Federal Trade Commission Act and the Clayton Act.
`
`40.
`
`The Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13, provides,
`
`inter alia, that it “shall be unlawful for any person engaged in commerce, in the course of such
`
`commerce, either directly or indirectly, to discriminate in price between different purchasers of
`
`commodities of like grade and quality …”
`
`41.
`
`Accordingly, regardless of whether Defendants’ arbitrary and age-discriminatory pricing
`
`scheme violates the exact “letter” of the Robinson-Patman Act, the pricing scheme clearly offends some
`
`of the same public policies underlying that Act – particularly that consumers should be free from
`
`arbitrary pricing discrimination based on factors such as age, gender, race, and/or sexual orientation.
`
`42.
`
`Likewise, the Federal Trade Commission enforces the Equal Credit Opportunity Act, 15
`
`U.S.C. § 1691 et seq. (the “ECOA”).
`
`43.
`
`The ECOA, inter alia, makes it unlawful for a creditor to discriminate against any
`
`individual on the basis of age, race, color, religion, sex or marital status.
`
`44.
`
`Accordingly, regardless of whether Defendants’ arbitrary and age-discriminatory pricing
`
`scheme violates the exact “letter” of the ECOA, the pricing scheme clearly offends some of the same
`
`public policies underlying the ECOA – particularly that individuals should be free from arbitrary
`
`discrimination based on factors such as age, gender, and/or race.
`
`45.
`
`Thus, for several reasons, it is clear that Defendants’ arbitrary and discriminatory pricing
`
`scheme also “offends any public policy as it has been established … by the [FTC].” See 15 C.S.R. § 60–
`
`8.020.
`
`46.
`
`As such, for at least the multiple, independent reasons set forth supra, Defendants’
`
`arbitrary and age-discriminatory pricing scheme constitutes an “unfair practice” prohibited by the
`
`
` 8
`
`

`

`Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 9 of 11 PageID #: 9
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`MMPA.
`
`47.
`
`In addition to Defendants’ arbitrary and discriminatory pricing scheme used for “Tinder
`
`Plus,” Defendants also force every “Tinder Plus” subscriber to agree to a procedurally and substantively
`
`unconscionable “arbitration agreement.”
`
`48.
`
`The purported agreement to arbitrate that all “Tinder Plus” users must accept is, for
`
`multiple reasons, unconscionable in-and-of-itself.
`
`49.
`
`The employment of any unconscionable term in connection with a transaction also is an
`
`“unfair practice” in violation of the MMPA. See, 15 Mo. C.S.R § 60–8.080(1) (2011) (“It is an unfair
`
`practice for any person in connection with the sale of merchandise2 [to] … use any unconscionable
`
`contract or contract term.”).
`
`50.
`
`In addition to constituting an independent violation of the MMPA, under Missouri law,
`
`unconscionable contractual provisions are unenforceable as against public policy; thus, the purported
`
`arbitration agreement contained within the broader sign-up “contract” is unenforceable.
`
`51.
`
`Moreover, since the arbitration agreement purports to effectively waive Missouri
`
`citizens’ right to pursue a class action against Defendants, the agreement is void as against public policy
`
`because the MMPA expressly authorizes class action, see R.S.Mo. § 407.025, and the Missouri Supreme
`
`Court has held that “the public policy involved in Chapter 407 [the MMPA] is so strong that parties will
`
`not be allowed to waive its benefits.” Huch v. Charter Communications, Inc., 290 S.W.3d 721, 724 (Mo.
`
`2009).
`
`52.
`
`In any event, as described above, inherent in Defendants’ sale of “Tinder Plus” to all
`
`Missouri citizens 30 years of age or older, are at least two “unfair practices” in violation of the MMPA.
`
`2 “Merchandise,’ as the term is included in the MMPA, includes services such as “Tinder Plus.” See Mo. Rev. Stat. §
`407.010(4)(“’Merchandise’, [includes] any objects, wares, goods, commodities, intangibles, real estate or services[.]”
`
`
` 9
`
`

`

`Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 10 of 11 PageID #: 10
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`IV.
`
`CLAIMS
`
`COUNT ONE: VIOLATION OF THE MMPA – “Unfair Practice” -- Discriminatory Pricing
`
`53.
`
`Plaintiff hereby incorporates by reference and re-alleges each and every allegation set
`
`forth in each and every preceding paragraph of this Complaint, as though fully set forth herein.
`
`54.
`
`The Defendants violated the Missouri Merchandising Practices Act, Mo. Rev. Stat. chap.
`
`407 (“MMPA”), by systematically using an arbitrary and unfair discriminatory pricing scheme in selling
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`the “Tinder Plus” service to all Missouri residents 30 years of age or older.
`
`55.
`
`For at least the multiple independent reasons set forth supra, Defendants’ discriminatory
`
`pricing scheme constitutes an “unfair practice” pursuant to the MMPA, and is thus illegal under
`
`Missouri law.
`
`56.
`
`Pursuant to Defendants’ numerous violations of the MMPA, Plaintiffs were damaged,
`
`suffering ascertainable losses in the amount of additional fees paid over the life of their subscriptions to
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`“Tinder Plus” due to Defendants’ discriminatory pricing scheme.
`
`57.
`
`Due to Defendants’ illegal conduct, Plaintiffs are entitled to restitution of all funds
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`improperly obtained by Defendants.
`
`58.
`
`Particularly because Defendants have long been on notice that their discriminatory
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`pricing scheme is illegal and contrary to public policy yet have refused to reform and/or cease such
`
`unfair practice, Defendants are liable to pay punitive damages under the MMPA.
`
`COUNT TWO: VIOLATION OF THE MMPA – Unconscionable Arbitration Agreement
`
`59.
`
`Plaintiff hereby incorporates by reference and re-alleges each and every allegation set
`
`forth in each and every preceding paragraph of this Complaint, as though fully set forth herein.
`
`60.
`
`The Defendants, in forcing all subscribers to “Tinder Plus” to agree to a procedurally and
`
`substantively unconscionable arbitration agreement, violated the MMPA.
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`10
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`

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`Case: 4:19-cv-01647-RLW Doc. #: 1 Filed: 06/06/19 Page: 11 of 11 PageID #: 11
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`61.
`
`The employment of any unconscionable term in connection with a transaction is an
`
`“unfair practice” in violation of the MMPA. See, 15 Mo. C.S.R § 60–8.080(1) (2011).
`
`62.
`
`Pursuant to Defendants’ numerous violations of the MMPA, Plaintiffs were damaged,
`
`suffering ascertainable losses in the amount of fees paid to Defendants for “Tinder Plus.”
`
`63.
`
`Due to Defendants’ illegal conduct, Plaintiffs are entitled to restitution of all funds
`
`improperly obtained by Defendants.
`
`64.
`
`Pursuant to Defendants’ numerous violations of the MMPA, Plaintiffs may recover
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`compensatory damages, attorneys’ fees, and punitive damages.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiffs pray for an order certifying this action as a class action and appointing
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`Plaintiff Troia as class representative and his counsel as class counsel. Plaintiff requests that this court
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`find that the Defendants violated the MMPA and award Plaintiffs compensatory damages, restitution,
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`attorneys’ fees, punitive damages, costs, and such further relief as the Court deems just.
`
`Respectfully submitted,
`
`DANIEL F. HARVATH, ESQ.
`
`By: /s/ Daniel F. Harvath
`Daniel F. Harvath, #57599MO
`HARVATH LAW GROUP, LLC
`75 W. Lockwood, Suite #1
`Webster Groves, MO 63119
`(314) 550-3717
`dharvath@harvathlawgroup.com
`Attorney for Plaintiff
`
`11
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`

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