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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Ellen Choi

Ellen Y. Choi is a member of the firm’s Litigation and Investigations Practice Group. She represents clients in complex commercial disputes involving a range of issues such as business torts, consumer protection, and insurance recovery. Ellen also has experience in a range of…

Ellen Y. Choi is a member of the firm’s Litigation and Investigations Practice Group. She represents clients in complex commercial disputes involving a range of issues such as business torts, consumer protection, and insurance recovery. Ellen also has experience in a range of internal investigations, including workplace culture investigations. Ellen maintains an active pro bono practice.

Ellen is fluent in Korean and has experience advising Korean companies in litigation and investigation matters.

Prior to joining Covington, Ellen clerked for Judge Philip S. Gutierrez, U.S. District Court, Central District of California. Ellen was a management consultant in the pharmaceutical and biotech space before practicing law.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), and common law and constitutional rights of privacy, among others.