On the heels of an array of Everlane employees accusing the company of using the COVID-19 pandemic as an excuse to fire them and stomp out their efforts to unionize, another company is coming under fire for allegedly utilizing the global health crisis for its own benefit. In a strongly-worded letter addressed to Judge Alan Albright of the U.S. District Court for the Western District of Texas on Friday, counsel for Tinder-owner Match Group, LLC claims that rival dating app Bumble is using the Coronavirus as an excuse to delay the ongoing lawsuit between the parties and gain a “tactical advantage.”
Counsel for Match Group argues in its April 3 letter that in light of the rapid spread of the coronavirus in the U.S., the Dallas, Texas-headquartered company “indicated its willingness to discuss scheduling modifications [with Bumble] as long as those discussions proceeded in an attempt to resolve COVID-19 issues – including preparing to take depositions by remote connection – and allowed for proceeding to [the parties’ late July 2020] trial on schedule.”
Yet, despite its attempts to “work with [Bumble] in good faith to address the “uncharted issues” resulting from COVID-19, Match claims that Bumble is “not seeking to solve COVID-19 issues; [it is] seeking to gain from them.”
As first reported by Law360, Match claims that Bumble – which was founded in December 2014 by former Tinder co-founder Whitney Wolfe Herd (just three months after she settled the multi-million dollar lawsuit that she filed against Tinder for sexual discrimination and harassment) – is “using the logistical problems posed by the coronavirus as a back door to postpone” the parties’ trial. The most pressing issue? Remote depositions, which Bumble has claimed are “inadequate,” and thus, has requested that the case be put on hold for a month until in-person depositions can resume.
This is problematic, per Match, because while Bumble has allegedly kicked up a fuss about remote depositions in the case, it “sought and took the remote deposition of Match’s expert in” a separate – but related – IPR proceeding before the U.S. Patent and Trademark Office in which Bumble is seeking to the patents that the center of the high-stakes patent infringement suit that Match filed against Bumble in March 2018.
“Not once did [Bumble] suggest that this [remote] IPR deposition could not proceed because of the current COVID-19 crisis,” Match asserts in its letter to the judge overseeing the case. “Instead, Bumble deposed Match’s IPR expert from his house via remote connections, while the attorneys, witness, and court reporter complied with all relevant government guidelines and orders.”
Such “hypocrisy” on the part of Bumble “reflects an unfortunate opportunism: remote depositions are sufficient when [they] want a matter to proceed, [and] inadequate when they do not,” Match claims. As such, it accuses Bumble of “exploiting the country’s COVID-19 crisis to attempt to allow … the IPRs proceedings to leap ahead of this one,” saying that this is merely the latest instance in “a long history of [Bumble’s] actions delaying scheduling issues in this case.”
Ultimately, counsel for Match Group, which is owned by American media and internet giant IAC, calls Bumble’s actions “apparent gamesmanship” and requests that the Court overrule Bumble’s objection to video depositions and let the case move ahead without further delay.
Cooley LLP’s Joseph Drayton, who is representing Bumble, told Law360 that “any accusation that my clients are ‘exploiting the country’s COVID-19 crisis’ is false.” He said that “given the various shelter-at-home orders across our nation, litigants and courts are making necessary adjustments as required in light of our country’s COVID-19 crisis.”
The latest clash comes just over two years after Match filed suit against Bumble, asserting that exactly one year after three Tinder executives, including Herd, left the company, they launched Bumble, which Match says is a “virtually identical” copy of Tinder’s “world-changing” app.
As for how the three execs were able to replicate Tinder’s app so perfectly, Match claims that they “were given access to certain confidential information related to proposed Tinder features” and allegedly took that information with them when they jumped ship to launch Bumble.
In its lawsuit, which cites trademark infringement and dilution, utility and design patent infringement, trade dress infringement, trade secret misappropriation, and unfair competition, among other claims, Match alleges that it “spent significant time and effort developing and implementing the inventions embodied in versions of the Tinder app,” only to have a significant portion of those features recreated by Bumble, in its quest “to mimic Tinder’s functionality, trade off of Tinder’s name, brand, and general look and feel, meet user expectations that Tinder itself and its brand created, and build a business entirely on a Tinder-clone, distinguished only by Bumble’s women-talk-first marketing strategy.”
In addition initiating IPR proceedings and filing a since voluntarily-dismissed lawsuit of its own, Bumble has responded to Match’s suit in the court of public opinion. To be exact, Bumble ran full-page ads in the New Times and the Dallas Morning News in 2018 that did not explicitly address the legal claims at hand, but that made quite a statement, nonetheless, in slamming Match/Tinder’s “attempts to intimidate” the “woman-founded, women-led company,” pointing to the companies’ allegedly “aggressive corporate culture” and calling their tactics “bullying.”
* The case is Match Group, LLC, v. Bumble Trading Inc., 6:18-cv-00080 (W.D. Tex.).
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