Class: Ninth Circuit Finds Individual Bound To Arbitrate Is Not An Adequate Representative For Putative Class

The District Court Had Already Approved a Class Settlement Twice Over Objections.

        Lisa Kim, individually and on behalf of others, sued Tinder, alleging its pricing model was unfair. The district court approved the settlement -- twice. Objectors, however, contended on appeal that Kim, bound by an arbitration clause to individually present her claims in arbitration, was not a proper representative of the putative class. The Ninth Circuit panel agreed with the Objectors. "On remand, the only matter before the district court will be Kim’s individual action against Tinder, which has been compelled to arbitration." Kim v. Tinder, Inc., 22-55345 (9th Cir. 12/5/23) (Smith, Friedland, Miller).

        Judge Smith explained that as a party bound to arbitrate her claims, Kim did not have the incentive to litigate vigorously for the class. He also concluded that Kim failed to produce evidence she had litigated vigorously. And because her arbitration agreement could be subject to Texas law, she would not be able to represent litigants in California with Unruh Act claims.

        Close, but no cigar.

        BONUS: For a short video on the origin of the phrase "close but no cigar," click here. Readers who are not high-minded and who don't require a trigger warning can search YouTube on their own time for videos of Weird Al  singing Close But No Cigar.