MIAMI (Legal Newsline) – A Florida federal judge has recommended that certain counts of a class action lawsuit against Tinder over allegations of misleading business practices be dismissed.

Judge Andrea Simonton made the recommendation in a case filed by plaintiff Billy Warner, individually and on behalf of others similarly situated, for the dating application’s alleged violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Electronic Funds Transfer Act (EFTA), Florida Civil Rights Act (FCRA), Florida Free Gift Advertising Law (FFGAL) and Florida False Advertising Law (FFAL).

In 2014, Warner downloaded the free Tinder dating application. In 2015, Tinder began charging users $2.99 per month for Tinder Plus in order to get more "likes" for dating matches, which Warner paid. He alleges he was then asked to pay $19.99 a month for Tinder Plus.

Simonton first addressed the alleged EFTA violations.

“The defendant also asserts that the plaintiff’s claims involving the $19.99 subscription do not implicate the EFTA as the EFTA requires authorization for recurring charges but does not require procedures designed to prevent a consumer from purchasing and maintaining two separate subscriptions,” Simonton wrote in the recommendation.

EFTA is not implicated even if Warner believed his second subscription for $19.99 should have voided his $2.99 rate, according to the judge.

“The plaintiff does not allege any facts that would allow this court to conclude that the plaintiff’s purchase of the second subscription canceled his first subscription, other than the fact that the plaintiff believed that it should,” Simonton wrote in the recommendation, adding Warner indeed failed to state a EFTA claim for relief and the complaint against Tinder was in fact dismissed.

Next, the judge dealt with the FGAL count in the complaint.

“The defendant alleges that the plaintiff’s claim under the Florida Free Gift Advertising Law fails because there is no allegation that the Tinder app was ever anything but free,” Simonton wrote in the recommendation, adding “There is nothing in the language of the FGAL to support the plaintiff’s contention that if the product is free, the product must remain free in perpetuity, or that the free item must function in a particular manner.”

Next, the judge addressed the alleged FDUTPA violation by Tinder.

“The defendant asserts that the plaintiff has failed to allege actual damages, which under FDUTPA require proof of the defendant’s bad faith, a standard of culpability that the plaintiff has not even attempted to plead,” Simonton wrote in the recommendation, noting FDUTPA does not provide for the minor damages, hypothetical losses or payment for feelings of disappointment recovery.

Citing PNR, Inc. v. Beacon Prop. Mgmt. Inc. from 2003 to define Florida Supreme Court’s definition of "deception," Simonton states that  “deception occurs if there is a representation, omission, or practice that is likely mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment,” according to the recommendation.

According to the judge, Warner may have been misled by Tinder’s billing practices.  

“While the facts revealed in discovery may show that the plaintiff was in fact not double-billed, or that the plaintiff was using multiple accounts, at the motion to dismiss stage the court must take the allegations of the complaint as true,” Simonton wrote in the recommendation.

Lastly, the judge addressed alleged violations of the FCRA.

According to Warner, the violation applies since he argues that using the dating application in the Florida makes the Tinder a place of public accommodation.

“The plaintiff offers no legal support for his contention that a phone-based app should be considered a place of public accommodation,” Simonton wrote. “While the plaintiff is correct in stating that ‘the mere presence of a public accommodation within the zone of establishment is enough to transform the establishment as whole into a public accommodation,’ Tinder is not an establishment...”

The FFAL violations were based on Walker’s allegations that the removal of the unlimited swipes feature unless payment was made rendered the free app useless. However Simonton saw differently, recommending Tinder’s motion to dismiss EFTA, FGAL, FFAL and FCRA be granted and FDUTPA be denied.

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