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Class Certification Denied in Data Breach Class Action Based on Class-Action Waiver in Terms of Service

The Northern District of California denied class certification in a data breach suit against Zoosk, an online dating service, concluding that the lead plaintiff had waived any right to represent a class by agreeing to a class-action waiver.  See Order Denying Class Certification, Flores-Mendez v. Zoosk, Inc., No. 3:20-04929-WHA (N.D. Cal. July 27, 2022).

This putative class action stemmed from a data breach in January 2020 that resulted when a group called “ShinyHunters” allegedly stole personal data from Zoosk users.  The plaintiffs contend that the data breach occurred because Zoosk failed to adequately protect their personal information.

The plaintiffs moved for class certification with Tracy Greenamyer as the sole lead plaintiff, and Zoosk opposed, arguing in part that the she had waived any right to represent the class because she agreed to Zoosk’s Terms of Use, which included a class action waiver.  The plaintiffs argued that Zoosk waived enforcement of the class action waiver because it never raised the issue during the two years of litigation to date.  The court rejected the plaintiffs’ argument, noting that Zoosk had raised the waiver as an affirmative defense in its answer.

The court also determined the class action waiver was valid.  First, Zoosk’s Terms of Use was not procedurally unconscionable, many other dating apps were available for the lead plaintiff and she could have avoided the waiver.  Second, the court held that the terms were not substantively unconscionable under California law, because the provision was not “so one-sided as to shock the conscience.”  The court further pointed out that Zoosk’s class action waiver mirrored the terms that were upheld in the Supreme Court decision, AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

Because the proposed class representative had entered a valid and enforceable class-action waiver, the court concluded that she could not serve as a class representative and denied class certification on that basis.

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