Lisa Kim v. Tinder, Inc., 87 F.4th 994

Tinder charged older users higher subscription prices for Tinder Plus/Gold (age-tiered pricing introduced 2015); this spawned consumer class litigation.
Tinder implemented a sign‑in "wrap" Terms of Use (TOU) that included a Texas choice‑of‑law clause, arbitration provision, and class‑action waiver; Tinder later attempted to apply an amended TOU retroactively.
Separate state action (Candelore) survived demurrer; Kim sued in federal court making substantially similar Unruh Act and UCL claims.
The district court compelled arbitration as to Kim (based on post‑TOU logins) but not (at least as yet) for over 7,000 putative class members; parties reached a class settlement that the district court approved after a Ninth Circuit remand from an earlier reversal (Kim I).
Objectors (Allison, Frye) argued Kim was an inadequate class representative because she was subject to arbitration, had a conflict of interest with non‑arbitrable class members, and had not vigorously litigated the claims; the Ninth Circuit agreed, vacated approval of the revised settlement, and remanded (leaving only Kim’s individual action to arbitration).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Adequacy — conflict of interest under Rule 23(a)(4)	Kim: no disabling conflict; her claims are typical and aligned with class interests	Tinder/District Court: typicality and shared goals suffice; arbitration status not fatal	Held: Kim had a fundamental conflict — she is arbitrable (and thus cannot face trial) while a non‑trivial subset of class members may not be — so she is inadequate
Adequacy — vigor of prosecution	Kim: case was actively litigated and parties engaged in discovery and motion practice	Tinder: settlement reached after litigation and procedural history; court found vigor	Held: Kim did not vigorously prosecute — discovery before settlement was minimal and she failed to timely raise formation/unconscionability arguments against the TOU
Fairness of the revised settlement under Rule 23(e)	Kim/class counsel: revised settlement and fee structure are fair and reasonable	Objectors: settlement shows indicia of collusion and places minority (but sizable) non‑arbitrable claims at risk	Held: Because the named plaintiff was inadequate, district court abused its discretion in approving the settlement; approval vacated and case remanded

Amchem Prods. v. Windsor, 521 U.S. 591 (U.S. 1997) (named plaintiffs with differing, conflicting interests can render representation inadequate)
Hesse v. Sprint Corp., 598 F.3d 581 (9th Cir. 2010) (prior settlement by named plaintiff can conflict with interests of absent class members and defeat adequacy)
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (standards for class certification and assessment of counsel’s vigor in settlement-only classes)
In re Volkswagen "Clean Diesel" Mktg., Sales Pracs., & Prods. Liab. Litig., 895 F.3d 597 (9th Cir. 2018) (conflicts inquiry and class settlement scrutiny)
Kim v. Allison, 8 F.4th 1170 (9th Cir. 2021) (earlier panel decision reversing district court approval of initial settlement and remanding for a more probing inquiry)
In re Online DVD‑Rental Antitrust Litig., 779 F.3d 942 (9th Cir.) (adequacy/vigor of prosecution discussed in settlement‑class context)