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Zoosk User Waived Right to Class Action in Data Breach Lawsuit

July 27, 2022, 3:10 PM

Zoosk Inc. customers lost their bid for class certification in their data breach suit Wednesday, when a federal judge in San Francisco found that the lead plaintiff agreed to terms of use that waived her right to represent a class.

Juan Flores-Mendez and Tracy Greenamyer sued the online dating site following a massive breach in January 2020 in which a group called the “ShinyHunters” stole data from 30 million Zoosk users. Zoosk waited 22 days to notify its users of the breach, according to the complaint.

Zoosk argued that Greenamyer, who moved to be the sole representative of the proposed class, waived her rights to represent the class by signing the company’s terms of use, which contained a class action waiver.

Judge William Alsup of the US District Court for the Northern District of California rejected Greenamyer’s argument that Zoosk effectively waived enforcement of its class action waiver by never raising the issue over nearly two years of litigation. Zoosk raised this defense in February 2021, Alsup said.

Alsup also rejected the argument that the class action waiver was unconscionable and therefore unenforceable under California law. To show unconscionability requires the provision to be “so one-sided as to shock the conscience,” which is not the case with this provision, the judge said.

Other reasonable market alternatives existed, since Greenamyer could have used many other dating apps, Alsup said.

The plaintiffs are represented by Bradley Grombacher LLP and Morgan & Morgan PA. Zoosk is represented by Orrick Herrington & Sutcliffe LLP.

The case is Florez-Mendez v. Zoosk Inc., N.D. Cal., No. 3:20-cv-04929, 7/27/22.

To contact the reporter on this story: Samantha Hawkins at shawkins1@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Brian Flood at bflood@bloomberglaw.com