Candelore v. Tinder, Inc.

Filed 1/29/18 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE ALLAN CANDELORE, B270172 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC583162) v. TINDER, INC., Defendant and Respondent. APPEAL from a judgment of the Superior Court of Los Angeles County, William F. Highberger, Judge. Reversed. The Kralowec Law Group, Kimberly A. Kralowec, Kathleen Styles Rogers; Rava Law Firm and Alfred G. Rava for Plaintiff and Appellant. Manatt, Phelps & Phillips, Robert H. Platt, Donald R. Brown and Christopher A. Rheinheimer for Defendant and Respondent. _________________________ 1 INTRODUCTION Tinder, Inc. owns and operates the smartphone-based dating application, Tinder. The original app began, and is still offered, as a free online dating service. It presents users with photos of potential dates. The user can swipe right to express approval, or swipe left to express disapproval. In March 2015, Tinder released a premium service called “Tinder Plus,” which allows users to access additional features of the app for a monthly fee. Plaintiff, Allan Candelore, commenced this action on behalf of himself and a putative class of California consumers who were over 30 years old when they subscribed to Tinder Plus. The complaint alleges that Tinder charges consumers who are age 30 and older $19.99 per month for Tinder Plus, while it charges consumers under the age of 30 only $9.99 or $14.99 per month for the Tinder Plus features.1 Candelore sued for age discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51; the Unruh Act or the Act) and the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.; the UCL).2 The trial court sustained Tinder’s demurrer without leave to amend, ruling in part that Tinder’s age-based pricing practice did not constitute arbitrary or invidious discrimination because it was reasonably based on market testing showing “younger users” are “more 1 There is some inconsistency in the record about whether the $19.99 monthly charge applies to individuals “over 30 years of age” versus “age 30 and older.” For purposes of our decision, the distinction makes no difference. 2 Statutory references are to the Civil Code, unless otherwise stated. 2 budget constrained” than older users, “and need a lower price to pull the trigger.” But, as discussed below, the Unruh Act provides broad protection against arbitrary age-based price discrimination. 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. Some older consumers will be “more budget constrained” and less willing to pay than some in the younger group. We conclude the discriminatory pricing model, as alleged, violates the Unruh Act and the UCL to the extent it employs an arbitrary, class-based, generalization about older users’ incomes as a basis for charging them more than younger users. Because nothing in the complaint suggests there is a strong public policy that justifies ...

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