Class action alleging Grindr sold user data may be forced into individual arbitration
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A class action complaint against Grindr for alleged privacy violations may not be able to proceed in traditional court, an attorney for the complainant told the Bay Area Reporter September 17.
Spencer Sheehan, a New York-based attorney who brought a suit against the most popular gay dating app worldwide in the United States District Court for the Southern District of New York January 31, said that the case will likely have to go through individual arbitration instead.
"Unfortunately, many courts usually go in the direction of arbitration," Sheehan said. "It has permeated so many aspects of society. Arbitration is a particularly awful thing because it has eliminated the courts having a role in protecting people. Whether it's a phone contract or a job, it puts the process behind closed doors."
Sheehan represents Robert Bergeron, who sued Grindr after allegations it shared personal user data with third parties.
"Defendant has abused trust by selling their users' information to the highest bidder without obtaining consent of users or telling them who those entities are," the initial federal court complaint states.
"Plaintiff's personal and sensitive information was disclosed and auctioned to third parties without consent," the complaint reads. "This data included 'chat message text, chat message images, e-mail address, display name,' 'About Me', age, height, weight, body type, position, ethnicity, relationship status, 'My Tribes,' 'I'm Looking For,' gender, pronouns, HIV status, last-tested date, profile picture, linked Facebook data, linked Twitter data, linked Instagram data, location data, IP address, and device ID, such as Google Advertising ID. ... Testing showed that in addition to this data, Grindr also shared device information, app name, and keywords."
The complaint states that "the aggregate amount in controversy" is over $5 million, which if the case went forward as a class action lawsuit would be spread among the members of the class.
Grindr did not respond to a request for comment.
For the last four years, Grindr had been owned by a Chinese company but it sold its 98% stake in March to U.S.-based San Vicente Acquisition Partners.
"It's terrible," Sheehan said. "It's offensive that [Grindr would] disclose people's most personal and private information, particularly a group subjected to unfair and discriminatory treatment. There should have been a higher level of care."
But on July 29, Grindr filed a motion to compel arbitration in the case.
"In keeping with the Federal Arbitration Act's liberal policy in favor of arbitration, Plaintiff Robert Bergeron individually should be required to arbitrate his grievances against Defendant Grindr," Grindr stated in a federal court filing. "Plaintiff indicated his assent, by clicking a button to affirmatively accept Grindr's Terms of Service while creating a new Grindr account, to a broad arbitration provision wherein Plaintiff agreed to arbitrate any claims on an individual basis."
Max Kornblith of the Oakland-based consumer protection service FairShake told the B.A.R. that what represents an actionable class action has changed in recent years, making the success of such a case against Grindr — and similar companies accused of such behavior — much more of a long shot.
Kornblith said FairShake advises people trying to follow through with alleged breaches of contract.
"The reason we exist is the contract you sign with most big corporations you do business with — terms forbidding you from filing a class action and demanding it be dealt with through a parallel procedural system of consumer arbitration," Kornblith said. "Most people don't realize the class action system has been gutted by a Supreme Court decision. ... People have an expectation of how the system will work because until recently, that was how."
The U.S. Supreme Court decision Kornblith was referring to is AT&T Mobility LLC v. Concepcion. In the 2011 case, AT&T was sued for overcharging about $15 per cellphone. Its contract with customers demanded that claims against the company be dealt with through consumer arbitration.
A lower court ruled against AT&T, holding that the contract was "unconscionable." In a 5-4 decision, the nation's high court ruled in favor of AT&T. Justice Antonin Scalia, in the majority opinion, allowed contracts that prohibited class actions to be enforceable. The intent of the decision was to assert contracts with companies as primarily the responsibility of the individual consumer.
But as Justice Stephen Breyer wrote in his dissent: "What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?"
Kornblith and Sheehan agree that the changes in law and practice that have made class actions more difficult make justice less likely when companies are found to have committed wrongdoing.
"They don't allow class arbitration. Most cases are not viable that way," Sheehan said. "I'll check with the individual the case is based on but if you go forward and have to spend $5,000, what do you get, $1?"
Kornblith said that the case should nonetheless be kept in the public courts. At issue, he said, "is the question of whether a person signing up for Grindr actually knew that they were signing away their right to join a lawsuit against the company, including over the behavior of any of its 160+ advertising partners.
"Instead of public claims for justice, Grindr is basically telling everyone to find a lawyer to go up against Grindr's lawyers," he added. "What's likely to happen is that the court is going to accept [Grindr's motion] and compel arbitration. It may be a violation of privacy, but tough luck."
Updated, 9/21/20: This article was updated to note FairShake is a consumer protection service.
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