In mid-August, a Texas-based federal court dismissed claims brought by a group of disgruntled daters, via several class-action lawsuits, against the online dating service Match.com. The lawsuit alleged that Match.com’s conduct constituted both a breach of contract and a violation of the prohibition on deceptive trade practices.
In this column, I will examine the claims and the court’s decision, arguing that the court was correct to dismiss the claims, based on the contract terms to which Match.com subscribers had agreed.
I’ll also explain why the lawsuit points out potential limits to Match.com’s model—and hence, may still have an adverse impact on the dating site and/or on other similar companies.
And, I’ll explain why daters need to carefully review the Terms of Service (ToS) of the services they use—in order to avoid situations in which they are left with fewer subscribers with whom to connect than they had hoped would be the case, or find themselves potential prey for dating scams.
Background: The Class Actions
Online dating services like Match.com allow subscribers to post personal profiles of themselves and to see the profiles of other subscribers, for a monthly or annual fee. With the typical business model, the dating site does not attempt to verify the information provided by a member/subscriber. Thus, people can lie or distort their profiles—in ways ranging from shaving a few years off their ages, to making themselves richer, taller, and thinner.
Match.com does not conduct background checks on its subscribers, and it tells subscribers as much. The site does, however, reportedly hire investigators to read and approve profiles before they are initially posted. This is a general precaution against scammers, who may be trying to con other consumers out of money, or may be using a stolen credit card, themselves, to join the site.
The plaintiffs in the class-action suits at issue contended that Match.com had essentially fooled them into subscribing, with empty promises and the display of old or fake profiles. They alleged that consumers who subscribed to find dates—and love—were getting less than they had bargained for, because Match.com did not properly police and update its site.
(Other online dating sites have faced similar consumer lawsuits. In 2007, Yahoo personals agreed to pay $4 million to settle a lawsuit alleging that the site had allowed people to post fake profiles when, in fact, they had no interest in using the site to find dates).
Originally, in addition to the Texas class action, other class actions against Match.com were also filed. But in August 2011, those other suits were transferred to the Texas-based federal court and consolidated with the original case. After that, the plaintiffs filed a consolidated and amended class action complaint, in November 2011—asserting claims for breach of contract, for violations of the Texas Deceptive Trade Practices Act (DTPA), and for breach of the implied covenant of good faith and fair dealing that is deemed to be present in every contract.
In their complaint, the parties–each of whom had been a Match.com subscriber—focused on whether the site had breached the subscriber agreement that was applicable at the time they each joined the site.
The plaintiffs characterized their contract with Match.com as being “premised on the concept of providing each paying subscriber with access to a legitimate and genuine online dating service in exchange for the payment of monthly subscription fees.”
They also alleged that Match breached its agreement with them by “intentionally, purposefully and/or negligently engaging in conduct that violated both the specific terms and the essence of the Agreement, and by failing to take reasonable steps to ensure the integrity and legitimacy of its services.”
More specifically, the class-action plaintiffs alleged that Match.com breached its contract with subscribers by failing to: vet new profiles, remove inactive profiles, accurately disclose its active and reachable membership base, and police its site and take reasonable steps to remove and block scammers—even after certain fake profiles had been reported. In addition, the plaintiffs say that the site breached its contract with them by labeling inactive profiles “active.”
The plaintiffs also alleged that the company breached the contract’s implied promise (or covenant) of good faith and fair dealing by not keeping its subscriber base current and accurate—and thus creating a false impression that would-be daters who joined Match.com would have a larger universe of people to date than was really the case. The bottom line: Subscribers, they alleged, believed that there would be millions of active daters online when in fact, there were not.
These allegations are also the basis for the Texas Deceptive Trade Practice Act claims, as well as the contract claims. And, to be more specific about the DTPA claims, the plaintiffs allege there that the actions of Match.com were unconscionable, in light of the respective bargaining power of the parties; and they cite Match.com’s alleged failures to live up to its promises, claiming that there was a gross disparity between the bargain that was struck between the parties, and the services that Match.com actually provided.
Why the Class Action Suits Against Match.Com Were Dismissed: The Court Held That the Site Had No Duty to Ensure that Profiles on the Site Were Legitimate or Current
In August, as noted above, the judge dismissed the class-action contract claims brought against Match.com, noting that the language of the ToS “in no way requires Match.com to police, vet, update the website content” or verify the accuracy of profiles on the site.
The judge also asked the plaintiffs to clarify why he should not toss out their Texas deceptive trade practices claims as well. He gave them until August 27 to respond, and said that if they did not do so, he would dismiss that claim.
After reviewing Match.com’s ToS, the judge ruled that Match.com had not promised to keep profiles current and active. Rather, that obligation remained with the subscribers themselves.
More specifically, as the judge pointed out, “[c]ontrary to Plaintiffs’ assertions, the portions of the Agreement that Plaintiffs rely on repeatedly refer to ‘You,’ and thus unambiguously address Plaintiffs’ obligations as subscribers, not the contractual obligations of Match.com. Moreover, the Agreement does not require Match.com to undertake the actions alleged but instead merely provides that Match.com may undertake such actions in its sole discretion and judgment. This language in no way requires Match.com to police, vet, update the website content, verify the accuracy of all profiles submitted and contained on the website, or to undertake any of the actions that Plaintiffs allege Match.com failed to do.”
The judge pointed to language in the Agreement that was directed to subscribers, such as “you are solely responsible,” and to several disclaimers of any liability on the site’s part relating to the truthfulness of members’ information.
Here are but a few examples:
The terms and conditions for example state in all capitals “YOU UNDERSTAND THAT MATCH.COM DOES NOT IN ANY WAY SCREEN ITS MEMBERS.”
Later in the agreement, the company states that “Match.com is not responsible for any incorrect or inaccurate Content posted.”
The company also disclaims any warranties regarding the fitness of the information on the site.
Finally, the Agreement also notifies subscribers that the website and the online profile service are provided “AS-IS” (emphasis in original).
Accordingly, the court found plaintiffs’ contention that language in the Agreement would lead a reasonable consumer to believe that Match.com was required to police its website and its member or subscriber profiles, to be meritless.
As to the Texas DTPA claims, the court strongly suggested that the claims seemed merely to duplicate the breach of contract claims. The court also noted that “to be unconscionable, the disparity [of bargaining power between the parties] must be “glaring and flagrant.”
In support of their DTPA claims, the plaintiffs contended—following the relevant statute—that there was “a gross disparity between the value received and the consideration paid by Plaintiffs and Class members for the services Match agreed to provide under the terms of the Agreement,” and that Match.com took advantage of class members’ “lack of knowledge, ability, experience and/or capacity to a grossly unfair degree.”
The court also noted that the plaintiffs stated in a conclusory fashion that there is a gross disparity between the value received and the consideration paid for Match.com’s service. But the court pointed out that since the plaintiffs did not allege in their complaint what they paid Match.com, it was impossible for the court to analyze the sufficiency of their claim in this regard.
Did the Court Get It Right When It Dismissed the Case Against Match.com?
It is easy to feel sympathy for the plaintiffs in this case, who were hoping that Match.com would be their Cupid, and instead allegedly got a site full of fake Romeos and Juliets. The plaintiffs allegedly frequently encountered profiles that were the work of scammers, or that were inactive, and thus were left to wander around in an online world that was full of false leads.
But as sympathetic as the plaintiffs’ plights were, in the end the court’s ruling was correct. The ToS were clear, and Match.com complied with them. Thus, while failing to exile spammers and delete inactive profiles may not be a good business model, it also was not a breach of contract.
Perhaps, then, the best answer here wasn’t a lawsuit, but rather the creation of a new and superior dating site—one that wouldn’t trigger these kinds of user complaints. And the lesson for us all is that, even if it’s laborious to read a site’s ToS, it may be well worth doing so, especially if you are planning to pay a significant amount of money to join that site.
Some of the Real Risks of Online Dating Sites
And more generally, would-be online love seekers need to be careful. Online dating scams are prevalent, and the Better Business Bureau (“BBB”) has issued repeated warnings to consumers of the perils and risks that come along with using online dating services. With an estimated 1,500 online dating sites, according to one report, BBB advises consumers who are looking for love online to be cautious and to thoroughly research sites before committing their hearts and their money.
BBB warns, “Don’t fall in love with the advertising. Beware of claims such as [those that offer]“an exclusive network of people, for sincere daters only, and beautiful singles just like you.”
Continuing its romance metaphors, BBB also tells consumers, “Know how to break up. Consumers should not assume that they will stop being billed once the contract runs out.” To the contrary, some online dating sites automatically renew memberships, and consumers have to take specific steps, such as calling to cancel their memberships, in order to stop being billed.
BBB chides consumers to do their “research in advance”, review the company history and its reputation with customers on www.bbb.org, and “look for a “Frequently Asked Questions (FAQ)” section of the website or marketing brochure to be sure you feel comfortable with all of the program components.”
In some states, consumers have additional protections. In Illinois, for example, the Dating Services Referral Act gives consumers three business days to cancel a dating services contract and receive a complete refund.
But the risks of online dating may also extend beyond the promises or guarantees that are made by the dating site itself, regarding its business model. The BBB also warns of scammers that some have encountered on Match.com or on other dating sites. As the BBB notes, “[o]nline dating is an effortless way of interacting with people without having to go out and meet people the traditional way. However, with that come the dangers of not knowing exactly who you are talking with on the other end.”
One common online- romance scam involves a fraudster who creates a fake profile and purports to live in another city or even in another country. He or she uses the Internet to build a relationship and foster trust, and will then ask for money so he or she can come and visit, or else will fabricate a crisis that then requires the victim to send quick cash. Such fraudsters will ask you to wire money to them, for example, purportedly because they are unable to access their own accounts.
Because of these potential dating scams, the BBB warns Internet daters to check for discrepancies in what their Internet correspondent tells them: “Save emails or chat logs, and pay attention to the details.” The BBB further advises consumers to create new e-mail accounts to be used just for online dating. Furthermore, the BBB warns online daters not to give out personal information online—information such as your full name, address, phone numbers, the link to your Facebook page, your work information or your financial details. This information can be shared in person later, once a consumer has met someone in person, and feels he or she is trustworthy.