Appeals court swipes right for Tinder class action

In a loss for Tinder Inc., the 2nd District Court of Appeal has swiped right to approve putative class action alleging the popular dating app discriminates by charging users over 30 more money.

The appellate court on Monday overturned a decision by Los Angeles County Superior Court Judge William Highberger, who sustained a demurrer by Tinder arguing it was justified charging less to users under 30 because market research showed that age group was at an economic disadvantage.

Tinder is a free dating app, but those under 30 can pay $9.99 or $14.99 for Tinder Plus features while anyone over 30 pays $19.99 per month.

The lawsuit, on behalf of paid users 30 and older, said this was age-based discrimination violating the Unruh Act and the state's Unfair Competition Law, and the appellate court agreed.

"No matter what Tinder's market research may have shown about the younger users' relative income and willingness to pay for the service, as a group, as compared to the older cohort, some individuals will not fit the mold," wrote Justice Pro-Tem Brian J. Currey for the three-judge panel. Presiding Justice Lee Smalley Edmond and Justice Luis Lavin concurred.

"Accordingly, we swipe left, and reverse," Currey wrote. Candelore v. Tinder Inc., B270172 (Cal. App. 2nd Dist. Jan. 30, 2018).

Defense attorneys Donald Brown and Robert Platt of Manatt, Phelps & Phillips LLP did not respond to a request for comment. In court papers, Tinder's attorneys said it was "self-evident" that people under 30 face financial challenges. "Common knowledge provides a reasonable and non-arbitrary basis for Tinder to offer a discount to people under 30."

The outlier opinion regarding the issue of legal protection was a case in which another Court of Appeal panel approved a health club's discount for 18- to 29-year-olds despite little legislative support favoring preferential treatment for the age group. In that case, the court held similar opinions to the trial court in Tinder, including that it expanded access to recreational activities and helped an age group with limited financial resources.

The court called this a broad generalization, citing a state Supreme Court decision that said even a true generalization about a class is insufficient to disqualify an individual who doesn't fit the generalization. Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721.

"Even if true, that doesn't justify an age-based price difference because of the assumption made on those groups because of income. ... The Unruh Act prevents those types of assumptions," said class counsel Kimberly A. Kralowec of Kralowec Law.

"The Court of Appeal was very careful to adhere to California Supreme Court precedent on the Unruh Act," Kralowec said.

Other opinions have supported differential treatment, but those decisions are justified by a social policy, the appellate court observed. For example, laws allow for seniors and children to get discounts in certain situations.

"Law recognizes that those groups have reduced income. Children can't work. But there aren't similar statutory enactments ... to protect adults under 30," said Kralowec.

Still, the appellate court in the Tinder case rejected that notion, arguing the reasoning was inconsistent with "individual nature" rights under the Unruh Act. Further, using Tinder's logic, higher prices would be rationalized for all customers over 30 in all areas of commerce, such as grocery shopping and gasoline purchases even in situations where a person did not have economic advantages, the court said.

"It is inconceivable that an anti-discrimination law like the Unruh Act would countenance a grocer charging an unemployed 31-year old patron twice as much as an employed 28-year-old customer merely on the basis of market testing showing that those over the age of 30 'as a group generally earn more than 18- 29-year-olds,'" the court ruled.