U.S. District Court
`Eastern District of Missouri (St. Louis)
`CIVIL DOCKET FOR CASE #: 4:19−cv−01647−RLW
`
`CLOSED,APPEAL
`
`Troia v. Tinder, Inc. et al
`Assigned to: District Judge Ronnie L. White
`Demand: $50,000,000
`Cause: 28:1332 Diversity−Personal Injury
`
`Plaintiff
`
`Vinny Troia
`individually and on behalf of all others
`similarly situated
`
`V.
`
`Defendant
`
`Tinder, Inc.
`
`Date Filed: 06/06/2019
`Date Terminated: 02/10/2020
`Jury Demand: Plaintiff
`Nature of Suit: 360 P.I.: Other
`Jurisdiction: Diversity
`
`represented by Daniel F. Harvath
`HARVATH LAW GROUP, LLC
`75 W. Lockwood
`Suite 1
`St. Louis, MO 63119
`314−550−3717
`Email: dharvath@harvathlawgroup.com
`LEAD ATTORNEY
`ATTORNEY TO BE NOTICED
`Designation: Retained
`Bar Status: Active
`
`represented by Glennon P. Fogarty
`HUSCH BLACKWELL, LLP
`190 Carondelet Plaza
`Suite 600
`St. Louis, MO 63105
`314−480−1500
`Fax: 314−480−1505
`Email: glennon.fogarty@huschblackwell.com
`LEAD ATTORNEY
`ATTORNEY TO BE NOTICED
`Designation: Retained
`Bar Status: Active
`
`Jason Husgen
`HUSCH BLACKWELL, LLP
`190 Carondelet Plaza
`Suite 600
`St. Louis, MO 63105
`314−480−1921
`Email: jason.husgen@huschblackwell.com
`ATTORNEY TO BE NOTICED
`Designation: Retained
`
`February 20 2020 p1
`Appellate Case: 20-1347 Page: 1 Date Filed: 02/20/2020 Entry ID: 4883297
`
`

`

`Bar Status: Active
`
`represented by Glennon P. Fogarty
`(See above for address)
`LEAD ATTORNEY
`ATTORNEY TO BE NOTICED
`Designation: Retained
`Bar Status: Active
`
`Jason Husgen
`(See above for address)
`ATTORNEY TO BE NOTICED
`Designation: Retained
`Bar Status: Active
`
`represented by Glennon P. Fogarty
`(See above for address)
`LEAD ATTORNEY
`ATTORNEY TO BE NOTICED
`Designation: Retained
`Bar Status: Active
`
`Jason Husgen
`(See above for address)
`ATTORNEY TO BE NOTICED
`Designation: Retained
`Bar Status: Active
`
`represented by Does 1−10
`PRO SE
`
`Defendant
`
`Match Group, LLC
`
`Defendant
`
`Match Group, Inc.
`
`Defendant
`
`Does 1−10
`
` Email All Attorneys
`(will not send to terminated parties)
`
` Email All Attorneys and Additional Recipients
`(will not send to terminated parties)
`
`Date Filed
`
`06/06/2019
`
`#
`
`1
`
`06/06/2019
`
`2
`
`Page Docket Text
`
`COMPLAINT against defendant All Defendants with receipt number
`AMOEDC−7262328, in the amount of $400 Jury Demand,, filed by VINNY
`TROIA. (Attachments: # 1 Original Filing Form ORIGINAL FILING FORM, #
`2 Civil Cover Sheet CIVIL COVER SHEET, # 3 Summons TINDER, INC.
`SUMMONS, # 4 Summons MATCH GROUP, LLC SUMMONS, # 5
`Summons MATCH GROUP, INC. SUMMONS)(Harvath, Daniel) (Entered:
`06/06/2019)
`
`February 20 2020 p2
`Appellate Case: 20-1347 Page: 2 Date Filed: 02/20/2020 Entry ID: 4883297
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`

`

`06/06/2019
`
`3
`
`NOTICE OF PROCESS SERVER by Plaintiff VINNY TROIA Process Server:
`CPS COMPANIES (Harvath, Daniel) (Entered: 06/06/2019)
`
`NOTICE OF PROCESS SERVER by Plaintiff VINNY TROIA Process Server:
`ST. LOUIS COUNTY SHERIFF'S OFFICE (Harvath, Daniel) (Entered:
`06/06/2019)
`
`06/06/2019
`
`4
`
`NOTICE OF PROCESS SERVER by Plaintiff VINNY TROIA Process Server:
`CPS COMPANIES (Harvath, Daniel) (Entered: 06/06/2019)
`
`06/06/2019
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`06/06/2019
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`07/10/2019
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`5
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`07/10/2019
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`6
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`07/10/2019
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`7
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`07/10/2019
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`8
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`07/10/2019
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`9
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`07/10/2019
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`10
`
`Case Opening Notification: All parties must file the Notice Regarding
`Magistrate Judge Jurisdiction Form consenting to or opting out of the
`Magistrate Judge jurisdiction. Click here for the instructions. and all
`non−governmental organizational parties (corporations, limited liability
`companies, limited liability partnerships) must file Disclosure of Organizational
`Interests Certificate (moed−0001.pdf). Judge Assigned: Honorable Ronnie L.
`White. (JWD) (Entered: 06/06/2019)
`
`Summons Issued as to defendant Match Group, Inc., Match Group, LLC,
`Tinder, Inc.. The summons was emailed to attorney Daniel Harvath. (JWD)
`(Entered: 06/07/2019)
`
`MOTION to Dismiss Case or Alternatively Stay, and, MOTION to Compel
`Individual Arbitration by Defendants Does 1−10, Match Group, Inc., Match
`Group, LLC, Tinder, Inc.. (Fogarty, Glennon) (Entered: 07/10/2019)
`
`MEMORANDUM in Support of Motion re 5 MOTION to Dismiss Case or
`Alternatively Stay, and MOTION to Compel Individual Arbitration filed by
`Defendants Does 1−10, Match Group, Inc., Match Group, LLC, Tinder, Inc..
`(Fogarty, Glennon) (Entered: 07/10/2019)
`
`DECLARATION filed by Defendants Does 1−10, Match Group, Inc., Match
`Group, LLC, Tinder, Inc. re 5 MOTION to Dismiss Case or Alternatively Stay,
`and MOTION to Compel Individual Arbitration . (Attachments: # 1 Exhibit 1 −
`Sign−Up Screen, # 2 Exhibit 2 − Subscription Screen, # 3 Exhibit 3 − Terms of
`Use, # 4 Exhibit 4 − Arbitration Procedures)(Fogarty, Glennon) (Entered:
`07/10/2019)
`
`DISCLOSURE OF ORGANIZATIONAL INTERESTS CERTIFICATE by
`Defendant Tinder, Inc.. Parent companies: Match Group, LLC, Subsidiaries:
`None, Publicly held company: None,. (Fogarty, Glennon) (Entered:
`07/10/2019)
`
`DISCLOSURE OF ORGANIZATIONAL INTERESTS CERTIFICATE by
`Defendant Match Group, LLC. Parent companies: None, Subsidiaries: None,
`Publicly held company: None,. (Fogarty, Glennon) (Entered: 07/10/2019)
`
`DISCLOSURE OF ORGANIZATIONAL INTERESTS CERTIFICATE by
`Defendant Match Group, Inc.. Parent companies: None, Subsidiaries: None,
`Publicly held company: IAC Group, LLC owns 81.1% of Match Group, Inc.
`IAC/InteractiveCorp wholly owns IAC Group, LLC,. (Fogarty, Glennon)
`(Entered: 07/10/2019)
`
`07/10/2019
`
`11
`
`ENTRY of Appearance by Jason Husgen for Defendants Match Group, Inc.,
`Match Group, LLC, Tinder, Inc.. (Husgen, Jason) (Entered: 07/10/2019)
`
`February 20 2020 p3
`Appellate Case: 20-1347 Page: 3 Date Filed: 02/20/2020 Entry ID: 4883297
`
`

`

`07/10/2019
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`12
`
`07/12/2019
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`13
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`07/12/2019
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`14
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`07/12/2019
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`15
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`07/24/2019
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`16
`
`07/26/2019
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`17
`
`07/29/2019
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`18
`
`08/07/2019
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`19
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`08/09/2019
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`20
`
`08/12/2019
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`21
`
`08/14/2019
`
`22
`
`AMENDED DOCUMENT by Defendant Tinder, Inc.. Amendment to 8
`Disclosure of OrganizationalInterests Certificate . (Fogarty, Glennon) (Entered:
`07/10/2019)
`
`MOTION for Extension of Time to File Response/Reply as to 5 MOTION to
`Dismiss Case or Alternatively Stay, and MOTION to Compel Individual
`Arbitration by Plaintiff Vinny Troia. (Harvath, Daniel) (Entered: 07/12/2019)
`
`MOTION for Extension of Time to File Response/Reply as to 5 MOTION to
`Dismiss Case or Alternatively Stay, and MOTION to Compel Individual
`Arbitration CORRECTED MOTION TO INDICATE DEFENDANTS DO NOT
`CONSENT TO 30−DAY EXTENSION BUT RATHER JUST 21 DAYS AND
`PLAINTIFF'S COUNSEL INADVERTENTLY FILED THE WRONG VERSION
`OF A DOCUMENT by Plaintiff Vinny Troia. (Harvath, Daniel) (Entered:
`07/12/2019)
`
`Docket Text ORDER: IT IS HEREBY ORDERED that Plaintiffs' Corrected
`Motion for Extension of Time to Respond to Defendants' Motion to Dismiss or
`Stay and Compel (ECF No. 14) is GRANTED, in part. Plaintiffs shall file their
`response no later than August 7, 2019. IT IS FURTHER ORDERED that
`Plaintiffs' Consent Motion for Extension of Time to Respond to Defendants'
`Motion to Dismiss or Stay and Compel (ECF No. 13) is STRICKEN. Signed by
`District Judge Ronnie L. White on 7/12/19. (JEB) Modified on 7/15/2019
`(TMT). (Entered: 07/12/2019)
`
`RESPONSE in Opposition re 5 MOTION to Dismiss Case or Alternatively
`Stay, and MOTION to Compel Individual Arbitration filed by Plaintiff Vinny
`Troia. (Attachments: # 1 Exhibit A)(Harvath, Daniel) (Entered: 07/24/2019)
`
`MOTION for Extension of Time to File Response/Reply as to 5 MOTION to
`Dismiss Case or Alternatively Stay, and MOTION to Compel Individual
`Arbitration by Defendants Match Group, Inc., Match Group, LLC, Tinder, Inc..
`(Fogarty, Glennon) (Entered: 07/26/2019)
`
`Docket Text ORDER: IT IS HEREBY ORDERED that Defendants' Unopposed
`Motion for Extension of Time to File Their Reply Memorandum (ECF No. 17)
`is GRANTED until August 7, 2019. Signed by District Judge Ronnie L. White
`on 7/29/19. (JEB) (Entered: 07/29/2019)
`
`REPLY to Response to Motion re 5 MOTION to Dismiss Case or Alternatively
`Stay, and MOTION to Compel Individual Arbitration filed by Defendants
`Match Group, Inc., Match Group, LLC, Tinder, Inc.. (Fogarty, Glennon)
`(Entered: 08/07/2019)
`
`MOTION for Leave to FILE SURREPLY BRIEF by Plaintiff Vinny Troia.
`(Harvath, Daniel) (Entered: 08/09/2019)
`
`Amended MOTION for Leave to FILE SURREPLY BRIEF by Plaintiff Vinny
`Troia. (Harvath, Daniel) (Entered: 08/12/2019)
`
`Consent MOTION to Withdraw 20 MOTION for Leave to FILE SURREPLY
`BRIEF, 21 Amended MOTION for Leave to FILE SURREPLY BRIEF by
`Plaintiff Vinny Troia. (Harvath, Daniel) (Entered: 08/14/2019)
`
`23
`
`08/15/2019
`
`Docket Text ORDER: IT IS HEREBY ORDERED that Plaintiff's Unopposed
`Motion to Withdraw Motions for Surreply [ECF No. 22] is GRANTED, and
`February 20 2020 p4
`Appellate Case: 20-1347 Page: 4 Date Filed: 02/20/2020 Entry ID: 4883297
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`

`

`02/10/2020
`
`24
`
`02/19/2020
`
`25
`
`02/20/2020
`
`26
`
`Plaintiff's Motion for Leave to File Surreply [ECF No. 20] and Amended
`Motion for Leave to File Surreply [ECF No. 21] are hereby WITHDRAWN.
`Signed by District Judge Ronnie L. White on 8/15/19. (ALM) (Entered:
`08/15/2019)
`
`MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that
`Defendants' Motion to Dismiss, or Alternatively Stay, and to Compel Individual
`Arbitration (ECF No. 5 ) is GRANTED. The Court COMPELS arbitration of
`the parties' dispute and DISMISSES this lawsuit. Signed by District Judge
`Ronnie L. White on February 10, 2020. (BRP) (Entered: 02/10/2020)
`
`NOTICE OF APPEAL as to 24 Memorandum & Order,, Order of Dismissal
`(case − Stipulation of Dismissal), by Plaintiff Vinny Troia. Filing fee $ 505,
`receipt number AMOEDC−7761592. (Entered: 02/19/2020)
`
`NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA
`regarding 24 Memorandum & Order,, Order of Dismissal (case − Stipulation of
`Dismissal),. Notice of Appeal filed on 2/19/20 by Plaintiff Vinny Troia.
`NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST
`FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE.(JWD)
`(Entered: 02/20/2020)
`
`February 20 2020 p5
`Appellate Case: 20-1347 Page: 5 Date Filed: 02/20/2020 Entry ID: 4883297
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`

`

`Case 4:19-cv-01647-RLW Document 24 Filed 02/10/20 Page 1 of 10 PageID 128
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
`
`Plaintiffs,
`
`v.
`
`VINNY TROIA, individually and on behalf of )
`all similarly situated
`)
`)
`) No. 4:19-CV-1647 RLW
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`TINDER, INC., MATCH GROUP, LLC
`MATCH GROUP, INC., and
`DOES 1 through 10,
`
`Defendants.
`
`MEMORANDUM AND ORDER
`
`This matter is before the Court on Defendants' Motion to Dismiss, or Alternatively Stay,
`
`and to Compel Individual Arbitration (ECF No. 5). This matter is fully briefed and ready for
`
`disposition.
`
`BACKGROUND
`
`Plaintiff Vinny Troia ("Troia") brought this Class Action Complaint (hereinafter
`
`"Compl."; ECF No. 1) individually and on behalf of all others similarly situated against Tinder,
`
`Inc. ("Tinder"), Match Group, LLC, Match Group Inc. (both Match entities referred to collectively
`
`as "Match"), and individual "Doe" defendants for Tinder's allegedly unfair and illegal age
`
`discriminatory pricing schedule and use of unconscionable contract provisions in violation of the
`
`Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. §§407.010, et seq.
`
`Tinder markets itself as a dating application for mobile phones. (Compl, ~20). On June 6,
`
`2019, Troia created a Tinder account. He clicked the "Create a New Account" hyperlink on a
`
`sign-up screen. (Ciesla Deel., Ex. 1 ). Directly above the link that Troia clicked to create his
`
`February 20 2020 p6
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`

`

`Case 4:19-cv-01647-RLW Document 24 Filed 02/10/20 Page 2 of 10 PageID 129
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`account was this disclosure: "By creating an account or logging in, you agree to our Terms and
`
`Privacy Policy." (Id.) Both the Terms of Use ("TOU") and the Privacy Policy were hyperlinked.
`
`(Id.) 1 Troia further alleges that he purchased a "Tinder Plus" account for $19.99. (Compl., if27).
`
`Tinder Plus provides supplemental services in addition to the basic Tinder account, including
`
`options to "change your location," "hide distance," "rewind your last swipe," no paid
`
`advertisements, a limited number of "super swipes" per day, the ability to hide your age, and
`
`control over Tinder users you view. (Compl, if25). Tinder, however, had announced that it would
`
`charge $9.99 per-month for Tinder Plus to consumers under 30 years of age. (Compl., if26). Troia,
`
`who was over 30 years old, was charged $19.99 for his "Tinder Plus" account. (Compl, if28).
`
`Troia alleges that Tinder Plus' s pricing plan constitutes an "unfair practice" in violation of the
`
`MMPA by charging him a higher rate because he was over 30 years old. (Compl., ifif32-64).
`
`STANDARD OF REVIEW
`
`Through the Federal Arbitration Act (the "FAA"), 9 U.S.C. § 1 et seq., Congress has
`
`established a strong federal policy in favor of arbitration. Shear son/ Am. Express, Inc. v. McMahon,
`
`482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987); 9 U.S.C. § 2 ("a contract evidencing a
`
`transaction involving commerce ... shall be valid, irrevocable, and enforceable."). "Arbitration
`
`agreements are favored by federal law and will be enforced as long as a valid agreement exists
`
`'and the dispute falls within the scope of that agreement."' Shockley v. Primelending, 929 F .3d
`
`1012, 1017 (8th Cir. 2019) (quoting Berkley v. Dillard's, Inc., 450 F.3d 775, 777 (8th Cir. 2006));
`
`1 The TOU is the only TOU for Tinder services. It is the same whether Troia visited the hyperlink
`on the initial sign-up screen or on the later Tinder Plus subscription sign-up screen. (Ciesla Deel.,
`Ex. 1, ifif4-6, Exhibit 4).
`The TOU is governed by Texas law. (Ciesla Deel., Ex. 3, § 16). Troia appeals under Missouri
`law. See ECF No. 1. The Court utilizes both jurisdiction's laws in this opinion but reaches the
`same result under either.
`
`- 2 -
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`

`

`Case 4:19-cv-01647-RLW Document 24 Filed 02/10/20 Page 3 of 10 PageID 130
`
`Kim v. Tinder, Inc., No. CV 18-03093 JFW (AS), 2018 WL 6694923, at *2 (C.D. Cal. July 12,
`
`2018) (quoting 9 U.S.C. § 4) ("The FAA provides that any arbitration agreement within its scope
`
`'shall be valid, irrevocable, and enforceable."'; 9 U.S.C. § 4 (a party may petition a federal district
`
`court for an order compelling arbitration of a dispute covered by an agreement to arbitrate).
`
`Arbitration is a matter of contract law, and favored status notwithstanding, parties cannot be
`
`compelled to arbitrate unless they have contractually agreed to be bound by arbitration. See
`
`Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002).
`
`"The primary inquiry, therefore, is to determine whether the parties formed a valid contract that
`
`binds them to arbitrate their dispute." Shockley, 929 F.3d at 1017. Howsam v. Dean Witter
`
`Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (quoting Steelworkers v.
`
`Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)) (internal
`
`marks omitted)( "[A]rbitration is a matter of contract and a party cannot be required to submit to
`
`arbitration any dispute which he has not agreed so to submit."); Hudson v. ConAgra Poultry Co.,
`
`484 F.3d 496, 500 (8th Cir. 2007). As the party seeking to compel arbitration, Defendants carry
`
`the burden to prove a valid and enforceable agreement. See Jackson v. Higher Educ. Loan Auth.
`
`of Mo., 497 S.W.3d 283, 287 (Mo. Ct. App. 2016).
`
`Thus, a court considering a motion to compel arbitration must decide two threshold issues,
`
`sometimes referred to as "questions of arbitrability:" 1) whether a valid arbitration agreement
`
`exists between the parties; and 2) whether the dispute falls within the scope of the arbitration
`
`agreement. Faber v. Menard. Inc., 367 F.3d 1048, 1052 (8th Cir. 2004); Daisy Mfg. Co., Inc. v.
`
`NCR Corp., 29 F.3d 389, 392 (8th Cir. 1994); Giddings v. Media Lodge, Inc., 320 F. Supp. 3d
`
`1064, 1069 (D.S.D. 2018).
`
`DISCUSSION
`
`- 3 -
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`

`

`Case 4:19-cv-01647-RLW Document 24 Filed 02/10/20 Page 4 of 10 PageID 131
`
`I.
`
`Motion to Compel Arbitration
`
`The TOU provides, in a Section called "Retroactive and Prospective Arbitration, Class-
`
`Action Waiver, and Jury Waiver," that the exclusive means of resolving any dispute or claim
`
`arising out of or relating to the TOU or Service shall be through binding, individual arbitration:
`
`The exclusive means of resolving any dispute or claim arising out of or relating to
`this Agreement (including any alleged breach thereof), or the Service, regardless of
`the date of accrual and including past, pending, and future claims, shall be
`BINDING ARBITRATION administered by the American Arbitration Association
`under the Consumer Arbitration Rules .... [Y]ou agree that you will not under any
`circumstances commence, maintain, or participate in any class action, class
`arbitration, or other representative action or proceeding against Tinder.
`
`(ECF No. 19 at 5; Ciesla Deel. Exhibit 3, §15.1 (emphasis in original)).
`
`Troia argues that he either did not agree to a TOU when he signed up for "Tinder Plus" or
`
`that such TOU was so inconspicuous that it was procedurally and substantively unconscionable
`
`and, therefore, "invalid and void ab initio." (ECF No. 16 at 1-3). Troia contends that the "TOU
`
`applicable to Tinder's free services are non-binding on Plaintiffs and class members' use of
`
`'Tinder Plus'" because "they have fundamentally changed the bargain by giving Defendants
`
`hundreds of dollars per year in exchange for a materially different service." (ECF No. 16 at 4).
`
`Troia does not dispute that he agreed to the TOU. (ECF No. 16 at 3). Troia only disputes
`
`whether he additionally assented to the TOU governing his Tinder Plus subscription, a paid
`
`service. As an initial matter, this issue is subject to arbitrability because the TOU provides "that
`
`the arbitrator shall determine all claims and all issues regarding the arbitrability of the dispute."
`
`(Ciesla Deel., Ex. 3, §15.3). The broad use of "any" dispute or claim from the Tinder Service
`
`mandates arbitration of this dispute. See Dickson v. Gospel for ASIA, Inc., 902 F.3d 831, 835 (8th
`
`Cir. 2018) (quoting Unison Co. v. Juhl Energy Dev., Inc., 789 F.3d 816, 818 (8th Cir. 2015)
`
`("When an arbitration provision is broad, the federal policy favoring arbitration requires a district
`
`- 4 -
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`

`

`Case 4:19-cv-01647-RLW Document 24 Filed 02/10/20 Page 5 of 10 PageID 132
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`court to send claims to arbitration 'as long as the underlying factual allegations simply touch
`
`matters covered by the arbitration provision.'"). The case law cited by Troia simply asserts that
`
`the parties must have meeting of the minds to the essential terms of a contract in order to have
`
`mutuality of agreement. See ECF No. 16 at 3-4 (citing Superior Edge, Inc. v. Monsanto Co.,964
`
`F.Supp.2d 1017, 1035 (8th Cir. 2013)). The TOU clearly states in a Section called "Acceptance
`
`of Terms of Use Agreement," that: "By creating a Tinder account or by using any Tinder service,
`
`whether through a mobile device, mobile application or computer (collectively, the 'Service') you
`
`agree to be bound by (i) these Terms of Use .... " (Ciesla Deel. Ex. 3, § 1 ). In addition, the Court
`
`finds that the language of the arbitration clause broadly applies to "any dispute or claim arising
`
`out of this Agreement (including any alleged breach thereof), or the Service ... " (Ciesla Deel. Ex.
`
`3, §15.1). The Court applies these provisions, as written, and holds Troia agreed to the TOU,
`
`including arbitration of any and all disputes.
`
`Further, Troia provides no legal support for his claim that the TOU is not applicable to the
`
`Tinder Plus service simply because it is a for-cost service. The Court holds that the TOU, and
`
`Troia's assent thereto, applies to any Tinder service, whether such service is fee-based. In fact,
`
`the TOU details terms for "in app purchases," which further demonstrates that the TOU applies to
`
`Tinder Plus and other subscription services. (Ciesla Dec., Ex. 3, § 10). Indeed, the Tinder TOU
`
`would not include a discussion of paid purchases if it applied only to Tinder's free service. The
`
`Court holds that the TOU applies to Troia's Tinder Plus subscription under the plain terms of the
`
`TOU.
`
`February 20 2020 p10
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`- 5 -
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`Case 4:19-cv-01647-RLW Document 24 Filed 02/10/20 Page 6 of 10 PageID 133
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`Troia further argues that the hybrid wrap design2 of the TOU fails to provide adequate
`
`notice that the user will be bound by the arbitration provision. Troia argues that the hybrid wrap
`
`design of Tinder's TOU failed to provide adequate inquiry notice: "(1) the 'notice' is as far away
`
`from the action button as it could possibly be; (2) the screen is cluttered with layers of 'potentially
`
`distracting content'; and (3) because of the ambiguity of the word 'Terms' along with the fact that
`
`the word is hardly even identifiable as a hyperlink compared to the text around it, Tinder's
`
`mechanism does not 'explicitly say' that by performing the action the user agrees to be bound by
`
`the terms." (ECF No. 16 at 9).
`
`The Court disagrees. Troia was provided access to the TOU and accepted those terms,
`
`even if those terms were not presented on the same page as the acceptance button. Here, directly
`
`above the link that Troia clicked to create his account is this disclosure: "By creating an account
`
`or logging in, you agree to our Terms and Privacy Policy." (Ciesla Deel., Ex. 1). Both the TOU
`
`and the Privacy Policy are hyperlinked. (Id.) The Court holds that this screen provides adequate
`
`notice under the case law that Troia would be bound by the TOU and the privacy policy. See, e.g.,
`
`Swift v. Zynga Game Network, Inc., 805 F. Supp. 2d 904, 911-12 (N.D. Cal. 2011) (noting cases
`
`where a plaintiff was provided notice and an opportunity to review terms of service prior to
`
`2 There are three generally recognized methods of obtaining consent to terms of
`use: clickwrap, browsewrap, and a hybrid known as "browsewrap-that-resembles(cid:173)
`clickwrap" or "sign-up wrap." Nguyen v. Barnes & Noble Inc., 763 F.3d 1171,
`1175-76 (9th Cir. 2014). In a sign-up wrap agreement, the consumer must click an
`"I agree" box or otherwise clearly manifest consent to the terms of use, while the
`terms themselves are accessible via hyperlink. Id. at 1176-77. Tinder uses a sign(cid:173)
`up wrap. Plaintiff consented to the TOU by tapping the Tinder Log In button
`directly below a disclosure that clearly explained that doing so constituted
`agreement to the TOU, which itself was accessible via a hyperlink in the
`disclosure.
`
`Kim v. Tinder, Inc., No. CV 18-03093 JFW (AS), 2018 WL 6694923, at *2 (C.D. Cal. July 12,
`2018).
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`acceptance, courts have held them sufficient to put a plaintiff on notice of the terms to which she
`
`was assenting); Selden v. Airbnb, Inc., No. 16-CV-00933 (CRC), 2016 WL 6476934, at *5 (D.D.C.
`
`Nov. 1, 2016) (internal citation omitted) ("Sign-up wrap agreements ... tend to be enforced if"the
`
`hyperlinked 'terms and conditions' is next to the only button that will allow the user to continue
`
`use of the website.). In any event, Troia does not dispute that he agreed to and was bound the by
`
`TOU when he created his account. (ECF No. 16 at 3; ECF No. 19 at 4). The Court holds that
`
`acceptance of the contract with Tinder, including the arbitration provision, under such conditions
`
`constitutes a binding and enforceable contract.
`
`The Court also holds that all Troia's claims are subject to arbitration. Therefore, the
`
`Court compels arbitration of these claims and the Court dismisses Troia's cause of action.
`
`II.
`
`Unconscionability
`
`Initially, the issue of unconscionability is for the arbitrator, not the Court, to decide. The
`
`TOU's arbitration clause provides that "the arbitrator shall determine all claims and all issues
`
`regarding the arbitrability of the dispute." (Ciesla Deel., Ex. 3, § 15.3). This provision controls
`
`this issue and the enforceability of the arbitration agreement due to unconscionability is delegated
`
`to the arbitrator. Troia has not challenged this provision was unconscionable, and thus, "the
`
`arbitrator must decide the enforceability of the arbitration agreement." Parks v. Career Educ.
`
`Corp., No. 4:11CV999 CDP, 2011 WL 5975936, at *2 (E.D. Mo. Nov. 30, 2011) (citing Rent-A(cid:173)
`
`Ctr., W, Inc. v. Jackson, 561 U.S. 63, 71, 130 S. Ct. 2772, 2779, 177 L. Ed. 2d 403 (2010)).
`
`In the alternative, the Court holds that, based on the totality of the circumstances, Tinder's
`
`agreement is not unconscionable. Leonard v. Delaware N. Companies Sport Serv., Inc., 861 F.3d
`
`727, 730 (8th Cir. 2017). "Procedural unconscionability involves the contract formation process;
`
`substantive unconscionability refers to undue harshness in the terms of the contract." Leonard, 861
`
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`
`F.3d at 729 (citing Pleasants v. Am. Exp. Co., 541F.3d853, 857-58 (8th Cir. 2008)(citing Whitney
`
`v. Alltel Commc'n, Inc., 173 S.W.3d 300, 308 (Mo. App. 2005)). To determine unconscionability,
`
`this court considers the totality of the circumstances. Cicle v. Chase Bank USA, 583 F.3d 549, 554
`
`(8th Cir. 2009). A contract is unenforceable if, "given the parties' general commercial background
`
`and the commercial needs of the particular trade or case, the clause involved is so one-sided that
`
`it is unconscionable under the circumstances existing when the parties made the contract." In re
`
`Poly-Am., L.P., 262 S.W.3d 337, 348 (Tex. 2008) (citing In re FirstMerit Bank, NA., 52 S.W.3d
`
`749, 757 (Tex. 2001)). Unconscionability is "an inequality so strong, gross, and manifest that it
`
`must be impossible to state it to one with common sense without producing an exclamation at the
`
`inequality of it." Eaton v. CMH Homes, Inc., 461 S.W.3d 426, 433 (Mo. bane 2015) (internal
`
`quotation marks omitted); Brewer v. Missouri Title Loans, 364 S.W.3d 486, 492-93 (Mo. 2012)
`
`(citing Cowbell, LLC v. Bore Building and Leasing Corp., 328 S.W.3d 399, 405 (Mo.App.2010)
`
`("The purpose of the unconscionability doctrine is to guard against one-sided contracts, oppression
`
`and unfair surprise."); In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 679 (Tex. 2006)
`
`("Unconscionability principles are applied to prevent unfair surprise or oppression.").
`
`The Court holds that unconscionability is not present in this situation. Troia is a computer
`
`systems expert, employed by his lawyer in this case. (ECF No. 6 at 1; Ciesla Deel., ~7). 3 Troia
`
`created a Tinder account, subscribed to Tinder Plus less than two minutes later, and then filed this
`
`lawsuit on the same day. (Id.). Troia admitted he specifically looked for arbitration agreements
`
`and TOU, but he does not dispute that he agreed to the TOU as part of his application for the
`
`Tinder service. Rather, Troia only challenges the purported lack of assent to any TOU for Tinder
`
`Plus. (ECF No. 16 at 5-11). Thus, given Troia's clear knowledge of the TOU and prescience as
`
`3 See http://harvathlawgroup.com/team#professionals (last visited February 4, 2020).
`
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`to the arbitration agreement, the Court finds that this agreement is not unconscionable because
`
`there is no unfair surprise or oppression.
`
`In addition, the Court finds no procedural unconscionability. "The only cases under Texas
`
`law in which an agreement was found procedurally unconscionable involve situations in which
`
`one of the parties appears to have been incapable of understanding the agreement." Fleetwood
`
`Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1077 (5th Cir. 2002). Troia has not presented
`
`evidence he did not understand the agreement. 4 Therefore, the Court finds no procedural
`
`unconscionability. Likewise, the Court finds no substantive unconscionability under Texas law
`
`because both parties are equally bound to the agreement and to the arbitration clause. See In re
`
`Media Arts Grp., Inc., 116 S.W.3d 900, 911-12 (Tex. App. 2003) ("Texas applies a somewhat
`
`stricter standard to evaluate substantive unconscionability-focusing not only on one-sided terms,
`
`but whether, given the parties' general commercial background and the commercial needs of the
`
`particular trade or case, the terms are so one-sided that they are unconscionable under the
`
`circumstances existing when the parties made the contract."); Iappini v. Silver/ea/ Resorts, Inc.,
`
`116 F. Supp. 3d 932, 941--42 (E.D. Mo. 2015) (citing Eaton v. CMH Homes, Inc., 461 S.W.3d
`
`426, 433 (Mo.2015) (quoting Aden v. Dalton, 341 Mo. 454, 107 S.W.2d 1070, 1073 (1937)
`
`("Mutuality of contract means that an obligation rests upon each party to do or permit to be done
`
`something in consideration of the act or promise of the other; that is, neither party is bound unless
`
`4 Similarly, under Missouri
`law, a plaintiff must provide "[e]vidence demonstrating
`unconscionability in that case included that the entire agreement was one-sided and difficult for
`the average consumer to understand; the defendant was in a superior bargaining position; the terms
`of the agreement were one-sided; and the plaintiff was without counsel." Park Irmat Drug Corp.
`v. Express Scripts Holding Co., 310 F. Supp. 3d 1002, 1023 (E.D. Mo.), affd, 911F.3d505 (8th
`Cir. 2018). Although this Court is at the Motion to Dismiss state, the allegations before this Court
`are that agreement was not one-sided and that Troia had counsel.
`
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`both are bound"; district court finding no unconscionability under Missouri law); see Ciesla Deel.,
`
`Ex. 3, §15.3 ("If you assert a claim against Tinder outside of small claims court, your rights will
`
`be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY, and the arbitrator
`
`shall determine all claims and all issues regarding the arbitrability of the dispute. The same is true
`
`for Tinder. Both you and Tinder are entitled to a fair hearing before the arbitrator."). Finally, the
`
`class action waiver also does not make the contract and arbitration provision substantively
`
`unconscionable under Texas or Missouri law. See D.R. Horton, Inc. v. NL.R.B., 737 F.3d 344,
`
`357 (5th Cir. 2013) (citingAmchem Prods., Inc. v. Windsor, 521U.S.591, 612-13, 117 S.Ct. 2231,
`
`138 L.Ed.2d 689 (1997); Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 332, 100 S.Ct. 1166,
`
`63 L.Ed.2d 427 (1980) ("The use of class action procedures, though, is not a substantive right"
`
`and arbitration agreement containing class waivers are enforceable); Robinson v. Title Lenders,
`
`Inc., 364 S. W.3d 505, 515 (Mo. 2012) ("a court should not invalidate an arbitration agreement in
`
`a consumer contract simply because it is contained in a contract of adhesion or because the parties
`
`had unequal bargaining power, as these are hallmarks of modem consumer contracts generally").
`
`Thus, the Court finds that the agreement is not unconscionable as a matter of law.
`
`Accordingly,
`
`IT IS HEREBY ORDERED that Defendants' Motion to Dismiss, or Alternatively Stay,
`
`and to Compel Individual Arbitration (ECF No. 5) is GRANTED. The Court COMPELS
`
`arbitration of the parties' dispute and DISMISSES this lawsuit.
`
`Dated thi~y of February, 2020.
`
`RONNIE L. WHITE
`UNITED STATES DISTRICT JUDGE
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`
`VINNY TROIA,
`individually and on behalf of
`all others similarly situated,
`
`Plaintiffs,
`
`v.