Illegal and Coercive Sales Techniques - DOC

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					Online Dating: When “Mr. (or Ms.) Right” Turns Out All Wrong, Sue the Service!
                              Phyllis Coleman


        Dating websites are big business. More than 40 million people1 log on
each month looking for love.2 Even during this recent economic downturn,3 the
total numbers of both users and services continues to increase.4 There are
several explanations for the rising popularity: (1) “Surfing the net” to meet that
special person has become socially acceptable.5 Indeed, people from all age
groups,6 social strata, and sexual orientation eagerly await their next
communication from someone they met on the web. (2) There are limited
opportunities and locations for busy singles to gather naturally. This is
attributable to such phenomena as urbanization,7 stressful careers,8 and
diminishing involvement in religious organizations.9 (3) Perhaps the most
  This represents almost half the estimated 92 million single people in this country. Facts for
Features, Special Edition, July 21, 2008, at
  Internet Alliance, Online Dating, (last
visited Sept. 27, 2009). Estimates do vary but most commentators agree on the higher figure.
But see “Why I Hate to Date Online” Challenges Cultural Dating Phenomenon, DC-101, Inc.,
W OMEN'S HEALTH W KLY., Aug. 28, 2008, at 537, available at 2008 WLNR 15833445 (suggesting
the numbers may be as high as 50 million or as low as 18 million).
  Andrea Cambern & Marcey Goulder, Matchmakers Flooded As Folks Feel Loneliness of Hard
Times, COLUMBUS DISPATCH (Ohio), May 20, 2009, at 10A, available at 2009 WLNR 9607895.
The phenomenon is not limited to the United States and some commentators suggest the bad
economy might actually be a contributing factor in the expansion. See, e.g., Press
Releases, 5.2 Million Britons Use Internet Dating Sites Like Single Hot & Loaded, June 29, 2009
at that Internet dating grew by 20% in the last
year as approximately 5.2 million people in the United Kingdom looked for love online because,
with the recession, they are staying home more and have shifted their priorities to finding
someone special).
  See infra notes and accompanying text.
5 Shifts Strategy In the Face of Competition, MKT. W K., Mar. 20, 2008, at 9, available
at 2008 WLNR 5403249 [hereinafter Shifts Strategy] (discussing the fact that online
dating services were originally thought to appeal only to those who were desperate). See also
David Morrill, Online Dating Explodes As Concept Shakes Stigma, TRI-VALLEY HERALD
(Pleasanton, CA), Feb. 12, 2005, available at 2005 WLNR 24221891 (noting that the attitude
change occurred between 2000 and 2001 and, as a result, “the numbers just exploded”).
  Most dating sites require that clients be at least 18. See, e.g., eHarmony Terms of Service, at (noting Singles Service users warrant that they are at
least 18 years old); Terms of Use Agreement, at (stating people must be 18 to register for the
  Tim Norman, Match, 116 INTERNET MAG. 88 (Apr. 1, 2004), available at 2004 WLNR 21929295.
  Next Advisor, Online Dating FAQ, at
n&ct=clnk&gl=us (last visited Feb. 18, 2010).
  See generally Jeremy E. Uecker et al., Losing My Religion: The Social Sources of Religious
Decline In Early Adulthood, 85 SOCIAL FORCES 1667, 1675-77 (June 2007) (explaining that,
important reason is that these services work. Even individuals who have never
used a computer to search for a soul mate know somebody (or know somebody
who knows somebody) who met a partner on the Internet.10

       Due to the industry‟s success, experts predict revenues that exceeded
$900 million in 2007 will rise to $1.9 billion by 2012.11 With so many individuals
spending this much money on an activity where expectations may be
unreasonably high and people tend to stretch the truth,12 predictably some are
dissatisfied and a number decide to litigate.13

      Inexplicably, however, law reviews have virtually14 ignored this relatively
new but pervasive method of finding a mate.15 To fill the gap, this article

during early adulthood, many Americans experience a decline in both the importance of religion in
their lives and participation in religious practices and explaining that research indicates adults
who avoid college exhibit the most extensive patterns of decline which undermines the
longstanding assumption that the phenomenon is related to the effect of higher education).
   PEW Internet, Online Dating, Summary of Findings, at
Findings.aspx?r=1(last visited Sept. 10, 2009) (noting that a 2006 study by the Washington-
based Pew Internet and American Life Project revealed that 31% of American adults, or 63 million
people, know someone who has used a dating website and 30 million know someone who is
either in a long-term relationship or is married to a person he or she met online). See also Alex L.
Goldfayn, Dating Sites Strike a Match With Users With Specific Interests; New Sites Include One
Just for Lawyers, BELLEVILLE NEWS-DEMOCRAT (IL), May 16, 2006, at S2, available at 2006 WLNR
   Bonny Albo, Projected U.S. Online Dating Growth 2007 - 2012,, at http://dating. In fact, in the paid content category, online
dating services are now the third largest number of Internet users after music and games.
Contrast this with 2007 when they represented only 10% of the online audience. Id.
   Jason Kepharet, 10 Things Your Online Dating Service Won't Tell You, SMARTMONEY
(Abstracts), Apr. 16, 2009, at 96, available at 2009 WLNR 8323646 (stating that among the 10
things an online dating service will not disclose is “the fact that everyone lies about something”).
Notably, in a 2005 Keynote research study, 61% of customers said they were concerned other
members misrepresent themselves. Keynote, Online Dating, 2005, at A recent NBC News
survey revealed that eight of 10 people believe their dates may not be completely honest in their
first encounters including online chats. Relevant Online Dating Statistics for You, at (last visited June 13, 2009). Further, in a National
Research poll for those who use online dating, only 22% said they believe their partner is
“generally 100% truthful.” Dating Tips and Dating Site Reviews, Online Dating: Statistics, at
http// (last visited June 10, 2009).
   Reni Gertner, When Online Love Goes Wrong, MO. LAW . W KLY., Nov. 7, 2005, available at
2005 WLNR 24509298 (quoting an attorney who represents dating websites: “[t]he problem with
issues involving people's emotions is we're going to find [certain types of claims] not filed in the
business world are going to be asserted").
   An exception is the potential interaction with the Communications Decency Act about which a
few pieces have been published. See, e.g., Juliet M. Moringiello & William L. Reynolds, Survey
of the Law of Cyberspace: Electronic Contracting Cases 2007-2008, 64 BUS. LAW. 199 (Nov.
2008); Jeffrey Lipschutz, Casenote, Internet Dating . . . Not Much Protection Provided By the
Communications Decency Act of 1996 Based On Carafano v., 339 F.3D 1119
(9th Cir. 2003), 23 TEMP. ENVTL. L. & TECH. J. 225 (Fall 2004); John Burns, Recent
Developments, Doe v. Placing Real-Life Liability Back Where It Belongs in a

explores the legal issues raised when disappointed clients sue online services
they say failed to help them find the perfect partner.

       Part I provides a brief background of dating websites. Part II summarizes
and compares existing state legislation. Part III analyzes case law in which
disgruntled customers sue one of these companies. Part IV concludes that the
number of online dating participants will continue to grow, likely leading to the
passage of additional statutes and litigation.

                                        Part I. Websites

        While definitions of online dating services vary, generally they are thought
to be “person(s) or entities providing access to dating, relationship, compatibility,
matrimonial, or social referrals primarily through the Internet for a profit derived
either from fees or advertising.”16

            Notably, since revolutionized dating17 when it launched in
1995,       the number of such services has grown rapidly.19 For example, by 2007

Virtual World, 9 N.C.J.L. & TECH. 60 (2007-08). Notably, the same is not true of other disciplines.
Andrew T. Fiore, Online Dating, About Me, at (last
visited Sept. 12, 2009).
   In fact, Brad Garrett, a successful television actor, produced and starred in an online reality
show in the fall of 2008. The series followed the comedian on blind dates with 10 women chosen
through an Internet search. Maria Russo and David Sarno, Hollywood Rolls Out Web Series,
L.A. TIMES, Sept. 22, 2008, available at 2008 WLNR 18007026.
   Although this article focuses on services that cater to people looking for romantic liaisons, this
description may be broad enough to encompass many different types of sites including those that
are primarily social networking like MySpace and Facebook. Typically younger users are more
likely to use these generic organizations where meeting seems more spontaneous and natural.
12 (2007). However, while younger users continue to dominate these social networking groups,
seniors are also at least beginning to sample this new world. But they tend to prefer sites
specifically created for them. Thus, for example,,,,,, and target baby boomers and the even
older market. Ana Veciana-Suarez, Social Networking Comes Of (Older) Age, MIAMI HERALD,
July 4, 2009, at 1EBR.
   Of course, substantial changes have occurred since it all began. For example, initially services
were very simple. Users were paired based merely on their likes and dislikes. However, as part
of their evolution, many sites now impose specific requirements for memberships. History of
Internet Dating Services, at (last visited Aug. 1,
   Id. is now available in 24 countries and territories in 15 different languages. About, Who We Are, (last visited Aug. 1, 2009).
   The initial astounding growth has slowed a bit but is still outperforming the United States
economy by a substantial margin. Contrast Dating Service eHarmony Taps Software For Help
With Relationships, CommWeb News Online, June 15, 2007, available at 2007 WLNR 11362736
(noting that “[a]n industry that regularly doubled in size in its early years of popularity has slowed
to about 10% annual growth”) with Anna Fedec, Despite Recent Growth, US Recovery is Still
Weak, TradingEconomics, Feb. 26, 2010, at

there were 1,378 sites in the United States.20 An estimated 44% of these were
niche groups, representing a 35% increase over the total in 2006.21

        To attract subscribers, companies attempt to distinguish themselves from
their competitors by demonstrating how successful they are. Because no actual,
objective measure exists, many use marriages between people who met on their
site as the standard. However, objective marriage researchers do not have
statistics on the impact of online dating.22 Nevertheless, when a 2007 survey
commissioned by eHarmony found that 2% of all people who married the
previous year met on its website, the figure was included in its advertising.23 An
earlier survey of 4,743 newly married or engaged couples registered on revealed 12% met online and nearly a third of those met
through The service then claimed it had "twice as many marriages
as any other site in the world."24

        In the approximately 15 years of dating websites, an estimated 2.2 million
Americans married people they found online.25 Sadly, however, meeting and
marrying that special person might not be enough to ensure living “happily ever
after.” As a result, dating services face a new challenge: finding ways to help
couples stay together.26 While no studies prove relationships that began on the
web have a higher divorce rate, some speculate they may for a variety of

Growth.aspx?Symbol=USD (stating that “on a year over year basis, the US economy grew only
0.1%” in 2009).
   J. Courtney Sullivan, Let's Say You Want To Date a Hog Farmer, N.Y. TIMES, Apr. 27, 2008, at
9, available at 2008 WLNR 7811110. This was a significant increase when compared with the
876 such sites just three years earlier. Id.
   Id. For example, JDate, primarily for Jewish singles, is the most successful dating site in New
York. However, other specialty services include such a variety as, (for Ayn Rand fans),,, (for
singles with sexually transmitted diseases), (for people over 50) and Id., launched in 2009, is New York City's first online dating
website to target socially conscious singles. To communicate with other users, members must
make a donation to a partnered charity. New Online Dating Service to Marry Flirting With
Philanthropy, SCI. LETTER 3411, May 19, 2009, available at 2009 WLNR 9225934. Some
speculate that these niche sites are so popular because people want to get into the market but
are aware they cannot compete with the huge, well-established services. Perfect Matches, FT.
W AYNE J. GAZETTE (IND.), Nov. 16, 2008, at 2D, available at 2008 WLNR 21972821.
   Carl Bialik, Marriage-Maker Claims Are Tied In Knots: Online Dating Sites Say Hordes of
People Ultimately Marry, But Their Methods Have Plenty of Hitches of Their Own, W ALL ST. J.
ONLINE, July 29, 2009, available at
   eHarmony Open Communication, Offical eHarmony Blog, at, July 31,
2009 (explaining how the company arrived at the numbers including its claim that 236 people who
met through eHarmony get married every day).
   Ellen Gamerman, (Perils of Online Matchmaking), W ALL ST. J. ONLINE, Apr.
16, 2006, available at This statement is
no longer on the website.
   Dating Sites, Current Online Dating and Dating Services Facts & Statistics, at
statistics#ref--GODI-2005-2 (last visited Mar. 3, 2010).
   Gamerman, supra note .

reasons including that people generally feel connected sooner, have shorter
engagements, and marry more quickly.27 Another concern is that the number of
misrepresentations in profiles may create problems as couples learn more about
their spouses after the wedding.28 Consequently, even absent specific
supporting data, recognizing that divorces would be bad for business, many
services are addressing these issues by providing relationship labs and couples
as well as family counseling.29

                                   Part II. State Statutes

       Fears that unscrupulous individuals were exploiting vulnerable, lonely
people spurred a number of lawmakers to regulate dating services. The 11
states that have such statutes vary in what they cover although there are some
common, basic provisions. Legislators in other jurisdictions have unsuccessfully
proposed bills, some – like Florida – multiple times.30

        A brief summary and comparison of these laws31 follows.


        Similar to most other such legislation, Arizona focuses on regulating the
contract. “Dating referral services” are defined broadly and encompass those
“primarily intended to introduce or match adults for social or romantic activities,
including those that are commonly referred to as computer dating or video dating
services.”32 Further, “arrangements in which one party is compensated for
engaging in the social activity” are specifically excluded.33 The agreement must
be in writing and contain any statutory requirement or prohibition, customers
must be given a copy when they sign up as well as the opportunity to rescind
within three days. If they rescind, the company must refund their money within
30 days.34 Waiver by a customer of any statutory mandate is void and

   Bill Maxwell, Editorial, Oh, What a Tangled Web We Weave . . . , PRESS ATLANTIC CITY, July 31,
2008, at A11, available at 2008 WLNR 14320821 (stating that more than 90% of people lie on
dating profiles causing some to wonder if real identities could just slip away).
   David Decamp, Criminal Check for Daters Urged, ST. PETE. TIMES, Apr. 8, 2008, at 8B,
available at 2008 WLNR 6574758 (noting Representative Kevin Ambler has been “unsuccessfully
push[ing] the plan since 2005”).
   This section reviews only statutes that deal with online dating services. So, for example,
Hawaii (HAW . REV. STAT.  489N-1 – 489N-5 (2006)), Missouri (V.A.M.S., 566.200 – 566.221
(West 2009)), and Texas (TEX. BUS. & COM. CODE ANN. 35.121, 101.001, and 411.084 (West
2009)) all refer to “international matchmaking organizations" so they are omitted. So, too, is
Indiana (IND. CODE ANN. 35-42-4-12 (West 2009) that concerns sex offenders using a social
networking website knowing that it allows minors to participate.
   ARIZ. REV. STAT. ANN. 44-7151. (West 2009).
   Id. at 44-7153.

unenforceable.35 The law also prohibits extending the initial term more than one
year (although the service may give the customer the option to renew the
contract for another year),forcing customers to give up any right they may have
against the enterprise, or using coercive sales tactics or any fraud or
misrepresentation to induce someone to sign a contract. In addition, the statute
provides that assignment of the contract does not affect any of the customers‟
rights or defenses against the enterprise.36 The prevailing party may be awarded
actual damages as well as reasonable attorney fees and costs and the state
attorney general is authorized to investigate and take action in the event of a
violation.37 Somewhat unusual provisions are that the service forbids selling,
inducing, or allowing any customer to become obligated under more than one
contract to avoid the requirements and prescribed penalties, and that it cannot
misrepresent the (1) quality, benefits, or nature of services, (2) qualifications or
number of other customers, (3) success the enterprise has had in making
matches or referrals that are favorable to the enterprise's customers. 38


      Similar to Arizona, California focuses on regulating the contract39 and is
more specific than many other states. It defines a dating service contract as:

       [A]ny contract with any organization that offers dating, matrimonial,
       or social referral services by any of the following means:
       (a) An exchange of names, telephone numbers, addresses, and
       (b) A photograph or video selection process.
       (c) Personal introductions provided by the organization at its place
       of business.
       (d) A social environment provided by the organization intended
       primarily as an alternative to other singles' bars or club-type

        The law also requires that, in addition to providing a copy of the contract to
customers at the time they sign there must be specific statements about the
cancellation policy and procedure, including a three-day rescission period, as
well as limitations on the financing period and contract term.41 It also mandates
explicit provisions for termination of the agreement in the event of death,
disability, or relocation42 and provides for awarding three times actual damages

   Id. at 44-7154.
   Id. at 44-7155

   Id. at 44-7154.
   CAL. CIV. CODE at §§1694-1694.4 (West 2009).
   Id. at §1694.
   Id. at §1694.2.
   Id. at §1694.3.

plus reasonable attorney fees to the prevailing party.43 In addition, failure to
comply with the law, contracts entered into based on fraudulent or misleading
information, and a buyer‟s waiver of the benefits of this chapter all make the
agreement “void and unenforceable.”44 The less common provisions in this
statute are that the contract cannot require payments or financing by the buyer
over a period in excess of two years from the date the contract is entered into
and the term cannot be measured by the life of the buyer. However, the services
to be rendered to the buyer under the contract may extend over a period
beginning within six months and ending within three years of the date the
contract is entered into.”45


      In contrast, this statute is simpler than most although it also focuses on
the contract. The definition of providers is virtually identical to California.

           Social referral services means dating, matrimonial or personal
           referral services by any of the following means: (A) An exchange of
           names, telephone numbers, addresses and statistics; (B) a
           photograph or video selection process; (C) personal introductions
           provided by the seller at the seller's place of business; and (D) a
           social environment provided by such person intended primarily as
           an alternative to singles' bars or club-type environments.46

        Specific requirements include provisions for a three-day rescission period,
mandating clients be given a written copy with a statement of the cancellation
policy, and establishing that money must be returned within 10 business days of
cancellation. Violations of the statute are deemed “an unfair or deceptive trade


           The description of who is covered under this statute is similar to Arizona‟s:

           "Dating referral services" means those services primarily intended
           to introduce or match adult persons for social or romantic
           encounters, or members in any group formed by a dating referral
           enterprise for any of the above purposes, and includes those
           activities frequently referred to as computer dating and video dating
           services. The term "dating referral services" does not include

   Id. at §1694.4(c).
   Id. at §1694.4(a), (b). The statute also specifically provides that if the contract is not in
compliance with the law, the buyer may cancel at any time. Id. at §1694.4(e).
   Id. at §1694.4(d)
   CONN. GEN. STAT. §42-320(4) (West 2009).
   Id. at  42-320 – 42-322.

       arrangements where one party is compensated for engaging in the
       social activity, such as escort services.48

       A big difference, however, is that, while Arizona allows for “actual
damages,” Illinois, like California, permits recovery of “3 times the amount at
which the actual damages are assessed, plus costs, and reasonable attorney‟s
fees.”49 Statements that governmental and not for profit entities are exempt as
well as that the provisions are not exclusive50 are unusual. While the limitation
on the term of the contract to two years with an option to renew is typical, this
statute also has an uncommon provision that the extension must be “for a
reasonable consideration not less than 10% of the cash price of the original
membership.” The time cannot be measured by the life of the customer.

        The statute provides for a three-day rescission period, refunds, customers‟
relocation or death, and restricts financing and the contract term while permitting
a limited option to renew and prohibiting assignments (actually stating that the
assignee is not a holder in due course).51 Customers may have only one
contract with a provider, waivers are void as are contracts that do not comply
with the law, and unconscionable provisions are unenforceable and may taint the
agreement.52 As is true in many states, unfair practices are prohibited and
contracts based on such misconduct are “void and unenforceable.”53 In addition,
either the customer or attorney general may sue.54


        Oddly, these regulations are found in a chapter on door-to-door sales.55
The legislation covers both a social referral service – defined as a “service for a
fee providing matching or introduction of individuals for the purpose of dating,
matrimony, or general social contact not otherwise prohibited by law” – as well as
an ancillary service which “means goods or services directly or indirectly related
to or to be provided in connection with a social referral service.”56 The buyer is
entitled to a “fully completed receipt or copy of any contract.”57 As is true in most
statutes, it includes a three-day rescission period but also states a detailed
completed form “in duplicate, captioned "Notice of Cancellation," must be
“attached to the contract or receipt and easily detachable.”58 “Sellers” must
honor cancellations within 10 days, refund money, and not assign notes “to a

   ILL. COMP. STAT. ANN. 815/615 §5 (West 2009).
   Id. at 45.

   Id. at 10.

   Id. at 30.

   Id. at 35.

   Id. at 40.

   Id. at 45, 50.

   IOWA CODE ANN. 555A.1 – 555.6 (2009).

   Id. at 555A.1.

   Id. at 555A.2

   Id. at 555A.3.

finance company or other third party prior to midnight of the seventh business
day following the day the contract was signed.”59 Rescission or failure to give
buyer a copy voids the agreement.60 A very unusual provision is that violation of
the contract is a “simple misdemeanor.”61

New Jersey

        This statute is radically different from the others that focus on the
protecting the client from abuses by the dating services. Legislators throughout
the country have debated the best way to resolve important safety concerns that
are ignored in that type of law. But in 2008, New Jersey became the first state to
require dating sites to explicitly disclose whether they perform background
checks.62 While many advocates strongly support such a requirement,63 others
are equally opposed. For example, the executive director of the Internet Alliance
(IA)64 is worried that screening may actually give prospective members a false
sense of security. She points out that most major sites provide extensive tips
which, if followed, are more likely to keep the member safe. One example is that,
while individuals can always perform their own investigation,65 they are less likely
to so if they think the company is screening applicants.

        The New Jersey law acknowledges these concerns and tries to respond.66
In fact, the statute mandates that the service explain whether someone with a

   Id. at 555A.4.

   Id. at 555A.5.

   Id. at 555A.6.
   Eric Gwinn, How Do I Catch a Valentine?, CHI. TRIB., Feb. 5, 2008, at 5, available at 2008
WLNR 2142723. Commentators suggest that much of the impetus for such statutes comes from
Herb Vest, founder. His website boasts the company performs criminal and marital
status checks and warns married people and felons will be prosecuted for fraud. It includes a
statement that “We can't guarantee criminals won't get on the site, but we can guarantee they'll
be sorry if they do.” True: Live, Love, Learn, at In fact, when
sued Robert Wells, who they claimed violated this policy, the convicted sexual offender agreed he
would not use any online dating sites and would pay an unspecified amount to True. Wells was
also ordered to perform a number of community service hours. Andrea Grimes, True Lies: An
Online Dating Service Goes After Fibbing Sex Offenders and Married Folk, DALLAS OBSERVER,
Oct. 26, 2006, at N, available at 2006 WLNR 18940831.
          But see W ASH. REV. CODE § 19.220.010 (2009) (requiring Washington International
Matchmaking Organizations to provide “background check information and personal history
information” to “recruits” in their native language upon request).
   Kevin Ambler, who unsuccessfully sponsored The Internet Predator Awareness and Online
Safety Act four times in Florida, suggests senior women are particularly targeted because they
are more likely to be widowed and have savings. Diane C. Lade and National Consumers
League, The Sweetheart Swindle: State Bill Would Prevent Con Artists From Targeting Online
Daters, S. FLA. SUN-SENTINEL, Mar. 31, 2008, at 1D, available at 2008 WLNR 6061176.
   IA says it is “the leading voice representing Internet companies in the 50 states.” Internet
Alliance, The Internet Alliance: Who We Are, at
alliance.shtml (last visited Sept. 5, 2009).
   Lade, supra note . IA also has First Amendment issues with the statute and is considering a
challenge to the New Jersey law. Id.
   N.J. STAT. ANN. § 56:8-171(d) (2008).

criminal conviction will even be allowed access to the site. There must also be a
statement that criminal background screenings are not foolproof and might be
providing a false sense of security.67

       Further, attempting to satisfy the statute‟s “primary purpose” that is “to
enhance the safety of individuals who use Internet service to facilitate dating,”68
the law requires those who operate in New Jersey to do the following:

        “Provide safety awareness notification that includes, at minimum, a list
         and description of safety measures reasonably designed to increase
         awareness of safer dating practices as determined by the service.”69
        If a service does not conduct criminal background screenings, to disclose
         that “clearly and conspicuously,” to all New Jersey members.70
        If an Internet dating service conducts criminal background screenings on
         all its communicating members, then the service shall disclose, “”clearly
         and conspicuously,” to all New Jersey members that it does so prior to
         permitting a New Jersey member to communicate with another member.
         The disclosure shall be provided on the website pages used when a New
         Jersey member signs up. A disclosure under this subsection shall be in
         bold, capital letters in at least 12-point type.71

        Failure to provide notice, or indicating that the service performed
screenings that it did not, constitutes an unlawful practice.72 However, a provider
is not in violation “solely as a result of serving as an intermediary for the

   Id. The statute also requires statements that “screenings are not a perfect safety solution; that
criminals may circumvent even the most sophisticated search technology; that not all criminal
records are public in all states and not all databases are up to date; that only publicly available
convictions are included in the screening; and that screenings do not cover other types of
convictions or arrests or any convictions from foreign countries.” Id.
   Id. at §56:8-169.
   Id. at §56:8-171(a). Examples of such notifications include:

         (1) "Anyone who is able to commit identity theft can also falsify a dating profile."
         (2) "There is no substitute for acting with caution when communicating with any
         stranger who wants to meet you."
         (3) "Never include your last name, e-mail address, home address, phone
         number, place of work, or any other identifying information in your Internet profile
         or initial e-mail messages. Stop communicating with anyone who pressures you
         for personal or financial information or attempts in any way to trick you into
         revealing it."
         (4) "If you choose to have a face to face meeting with another member, always
         tell someone in your family or a friend where you are going and when you will
         return. Never agree to be picked up at your home. Always provide your own
         transportation to and from your date and meet in a public place with many people
   Id. at § 56:8-171(b).
   Id. at § 56:8-171(c).
   Id. at § 56:8-172.

transmission of electronic messages between members of an Internet dating

New York

       As the goal was to protect consumers from fraudulent and exploitative
agreements,74 the legislative focus was on what can and cannot be part of the
document and social service referrals were defined broadly as “any service for a
fee providing matching of members of the opposite sex, by use of computer or
any other means, for the purpose of dating and general social contact.”75

      Common provisions include that customers must be given a copy of the
agreement in their own language as well as a form for terminating,76 the contract
needs to include a statement advising them they cannot be charged if they
cancel within three business days,77 and there is a two year term limit.78

        Many of the other requirements are unusual. For example, although the
statute says fees cannot exceed $1,000,79 sellers who charge more than $25
must furnish a specified number of social referrals per month. If they fail to do so
for two or more consecutive months, purchasers can cancel the contract and
receive a full refund.80 Notably, clients have a unilateral right, upon written
notification, to place their membership on hold for up to a year although the
parties can mutually agree to a longer period not to exceed 24 months.81 While
companies may provide ancillary services (such as photography, grooming,
cosmetology, dating etiquette, or dating counseling), customers cannot be
required to buy them.82 In addition, absent the purchaser‟s prior written consent,
   Id. at § 56:8-173.
   Originally passed nearly 40 years ago, then New York Attorney General Louis Lefkowitz
supported a bill regulating “social referral services” for the following reasons: (1) the “alarming
number of consumer complaints” filed, (2) the fact that the industry was “fraught with fraud and
misrepresentation,” (3) the reality that financial difficulties caused companies to close after
subscribers paid large sums of money, and (4) the problem that some operating businesses
either failed to provide any matches or the matches were “totally incompatible.” Grossman v.
MatchNet, 782 N.Y.S.2d 246, 248 (N.Y. App. Div. 2004).
   N.Y. GEN. BUS. L. § 394-c (McKinney 2009). Interestingly, the “for a fee” language, which is
unusual although not unique, arguably means the statute does not cover the growing number of
free sites. However, such an interpretation is inconsistent with legislative intent. In addition, the
restriction of matches to “members of the opposite sex” is problematic. Although most of the
services provide options for those seeking same sex partners, until recently eHarmony did not.
Chloe Albanesius, eHarmony Dispute Heads to Mediation, Nov. 21, 2008, available at 2/0,2817,2335280,00.asp.
   N.Y. GEN. BUS. L. § 394-c.7.(b).
   Id. at § 394-c7.(a). Notice of cancellation must be delivered by certified or registered mail. Id.
   Id. at § 394-c.7.(c).
   Id. at § 394-c.2.
   Id. at §§ 394-c.3., 394-c.4. However, the company can deduct 15% or a pro rata amount for
the number of referrals, whichever is greater. The service must also provide an explanation of its
policy. Id. at § 394-c.4.
   Id. at § 394-c.5-a.
   Id. at § 394-c.2-a.

all personal information must remain private and, at termination, should be
promptly returned by certified mail.83 The contracts are not assignable without
prior written consent.84

        Other unusual provisions include that the law requires creation of a Dating
Service Consumer Bill of Rights and mandates giving a copy to every
participant.85 It specifically establishes that members who have been injured
have a right to bring an action against the provider for any violation and states
they can file in their own name for an injunction as well as to recover their actual
damages or $50 whichever is greater.86 However, the attorney general may also
seek injunctive relief even without proof that anyone has been injured. Under
those circumstances, a court may also order restitution in addition to imposing a
civil penalty of not more than $1,000 for each violation.87 Interestingly, in cities
with a population of more than a million, the director of a local or municipal
consumer affairs office may enforce the law concurrently with the attorney
general and the local entities may require the social referral service be licensed
and pay a fee.88

North Carolina

        Similar to Iowa, this statute is not limited to dating service contracts.
Instead, they are located under a category of “prepaid entertainment contracts”
and are defined as “[m]atching, dating, or social club services or facilities,
including any service represented as providing names of, introduction to, or
opportunity to meet members of the opposite sex.” 89 The legislation lists certain
typical requirements for the contract such as that it must be in writing, a copy
given to the customer, and duration which should not exceed three years.
Further, the contract should provide a full statement of the buyer's rights
including the right to cancel within three days and circumstances under which the
customer may receive a refund (for example, in the event of death, disability, or
relocation by either party).90 Interestingly, the law also includes less common
provisions such as prohibiting agreements that will not begin within 180 days91
and establishing rules for bonding and record keeping.92 Finally, it permits

   Id. at § 394-c.6.
   Id. at § 394-c.5.
   Id. at § 394-c.7.(e).
   Id. at § 394-c.9.(b).
   Id. at § 394-c.9.(b).
   Id. at § 394-c.9.(c).
   N.C.G.S.A. §66-118(3)(c)2. (2009). As is true in New York, this language could create
problems if a company matches same sex couples. See supra notes and accompanying text.
   Id. at §§66-119 – 66.122.
   Id. at §66-123(b).
   Id. at §66-124.1. An irrevocable letter of credit from an FDIC-insured bank, in a form
acceptable to the Attorney General, may be filed with the Attorney General in lieu of a bond. Id.
at §66-124(7).

damages “including reasonable attorney's fees” and states that violation of any
provision constitutes an unfair practice.93


        Like North Carolina, this statute treats dating services as prepaid
entertainment contracts.94 It defines a social referral service to “include[ ] any
service that, for a fee, provides matching of members of the opposite sex, by any
means, for purposes of introduction, dating, or general social contacts.”95 The
contract requirements, although mostly typical, are more detailed than in some
states. So, for example, there must be a writing signed by both parties that is
given to the buyer at the time of execution. The duration cannot be measured by
the life of the buyer, must be precise, and cannot be for more than three years.
Others terms include provisions for buyer‟s death, disability, or relocation. Some
interesting, but less common, clauses mandate that all material received from a
buyer must be returned whenever the contract is over, provide that performance
must begin within 180 days, and limit the amount that the buyer must pay to $50
or 10% of the total contract price, whichever is less, prior to the date on which the
service is available to the buyer.96

       In addition, as is generally true, customers have the right to cancel within
three days97 and the statute actually provides a form for cancellation.98 Specific
provisions prohibit waivers of rights99 and state that a buyer who executes a
prepaid entertainment contract or a note as part of such a contract may assert
any defense he has against the seller against a holder in due course.100 Failure
to comply with this statute constitutes a deceptive act or practice in connection
with a consumer transaction and may allow the buyer to recover reasonable
attorney's fees as well as damages equal to the amount of money due him101
plus any other remedies provided by law.102

Rhode Island

       This law is less detailed than most but its definition of "social referral
services" is very similar to California and Connecticut. According to the statute,

   Id. at §66-125.
   Ohio Rev. Code Ann. §§1345.41 – 1345.50 (2009). As a result, certain of the sections really
do not apply. See, e.g., §1345.46 (discussing return of goods and that they “shall not be
diminished in quantity nor subjected to unreasonable wear or use”).
   Id. at §1345.41(A)(2) (2009).
   Id. at §1345.42.
   Id. at §1345.43.
   Id. at §1345.44.
   Id. at §1345.44(D). See also §1345.49 (stating any waiver is “contrary to public policy and is
    Id. at §1345.47. So the effect is similar to Illinois but stated differently. See supra note and
accompanying text.
    Id. at §1345.48.
    Id. at §1345.50.

social referral services are “dating, matrimonial or personal referral services” by
any of the following listed means for matching clients: (1) exchanging names,
numbers, addresses and statistics, (2) a photograph or video selection process;
(3) personal introductions by the seller; or (4) “a social environment provided by
the seller intended primarily as an alternative to singles' bars or club type
environments.”103 Contracts need to be in writing and a copy given to the client.
They must inform the buyer of his right to cancel within three days. In fact, a
specific form should be included “in not less than ten (10) point bold face type”104
and any violation “shall be deemed an unfair or deceptive trade practice.” 105


        Notably, unlike the other states, Wisconsin does not focus on romantic
matchings. Instead, it defines "dating service" to mean “a service that purports to
assist a person in obtaining friendship or companionship through a program in
which a person is provided an opportunity to meet other persons.”106 As is true in
other jurisdictions with this type of law, the statute mandates that the contract be
in writing and a copy given to the buyer when executed.107 Other important
requirements are provisions (1) explaining the right to cancel within three days
and receive a refund within 21 days, (2) limiting the term to no more than two
years, and (3) disclosing the full contract price with any interest or additional
charges.108 A somewhat more unusual clause is the limitation that the service
cannot “collect or by contract require a buyer to pay more than $100 for dating
services before the buyer receives or has the opportunity to receive those
services unless the person selling dating services establishes proof of financial
responsibility” by maintaining a bond, certificate of deposit, established escrow
account, or a department-approved irrevocable letter of credit in an amount not
less than $25,000.109

        Additionally, any dating service contract is unenforceable against the
buyer and violates the law if the agreement does not comply with the statute or
the seller fails to perform in accordance with the contractual provisions.110
Subscribers injured by breach of a dating service contract may bring a civil action
to recover damages along with costs and disbursements, plus reasonable
attorney fees, and other appropriate equitable relief.111 The “department or any
district attorney” may also seek temporary or permanent injunctive or other relief
and the court may award restitution to a person who can prove a loss.112

    R.I. GEN. LAWS §5-78-1 (2009).
    Id. at §5-78-2.
    Id. at §5-78-3.
    W IS. ST. ANN. §100.175(1) (West 2009).
    Id. at §100.175(2).
    Id. at §100.175(4).
    Id. at §100.175(5)(a).
    Id. at §100.175(6).
    Id. at §100.175(7)(c).
    Id. at §100.175(7)(a)(1).

Another atypical provision is that he department may also bring an action to
recover civil forfeitures against anyone who “violates this section in an amount
not less than $100 nor more than $10,000 for each violation”113 and seek to
recover against someone selling dating services or relevant third party, or both,
for any buyer who is entitled to a refund he does not receive.114

                                          Part III. Cases

       Lawsuits by disappointed clients115 against online dating services116
generally fall into one of three main categories: (1) fraudulent practices, (2)
discrimination, or (3) safety. In most of these, plaintiffs seek class action status.

Fraudulent Practices

       This classification actually includes several different types of misconduct
including misrepresentation, breach of contract, refusal to cancel, and
noncompliance with statute


       In the most recently filed action,117 a Brooklyn man ignored the DSL when
he targeted the world‟s largest dating site,118,119 in a federal class
action suit.

    Id. at §100.175(7)(a)(2).
    Id. at §100.175(7)(b).
    Of course, some statutes permit the state attorney general to file suit. See, e.g., ARIZ. REV.
STAT. ANN. 44-7151 – 44-7156 (West 2009); ILL. COMP. STAT. ANN. 815/615 §50 (2009); N.Y.
GEN. BUS. L. § 394-c [9][a] (McKinney 2009). Sometimes law enforcement officials may also sue.
See, e.g., Dart v. Craigslist, 665 F.Supp.2d 961 (N.D. Ill. 2009) (holding that when sheriff sued
alleging website facilitated prostitution and constituted a public nuisance by posting user‟s
classified ads, service was entitled to immunity under Communications Decency Act).
    This article only discusses online dating services. Clients also have sued traditional
matchmakers or international marriage brokers. See, e.g., Fox v. Encounters International, 2006
WL 952317 (Md. Ct. App. 2006) (awarding $92,000 in compensatory damages and $341,500 in
punitive damages to Ukranian woman when international matchmaking agency arranged
marriage with an American citizen who began mentally abusing her only two months after the
couple married and began physically abusing her approximately three months later).
    McGinn v. LLP, Complaint, Case No. 09cv5328 SWK (D.C.N.Y. June 5, 2009)
[hereinafter McGinn Complaint]. McGinn‟s attorney expected other unhappy users to
join the litigation. Golding, supra note .
118 Shifts Strategy, supra note . But see Rings True With Online
Daters, SCI. LETTER, Mar. 24, 2009, Letter 3931, available at 2009 WLNR 5228986 [hereinafter ] (noting that “ is now the official #1 online dating site in both the
USA and the UK”).
    See supra note .

        As was true in earlier cases, Sean McGinn‟s complaint contained several
counts: deceptive trade practices, fraud, negligent misrepresentation, and
breach of the implied covenant of good faith and fair dealing.120 Of course, all
these causes of action are really based on his claim that defendants lied to him
and other subscribers in a variety of ways. For example, he asserts
intentionally does not remove former users from its website so as to make it
seem they have far more participants than they actually do. Another practice that
creates a false impression of the number of potential available partners is that
anyone over the age of 18 can post a profile without charge. However, unless
they pay approximately $39.99 per month they can neither get nor reply to

        Using‟s own statements and figures, McGinn pointed out that
the vast majority of people cannot communicate with others122 because only 1.3
of its 20 million members are paid subscribers.123 Further, he claimed
defendants deliberately conceal the major difference between these categories
and treat both as “active.” Indeed, the service allegedly even refers former
members to subscribers as possible compatible partners. They also contact ex-
clients notifying them that someone who “„Just Might Be the One‟” is trying to
contact them but, to respond, they will have to re-join. Obviously
benefits from these misleading practices as they convince some people who
were ambivalent to sign up or renew.124 McGinn objected that he, and others like
him who were also unaware of this distinction, may spend hours composing
messages to people who can not read or answer them. 125 This is particularly
devastating because, absent a warning that not all profiles represent legitimate
members, users believe the absence of responses indicates a lack of interest
and, consequently, a negative judgment about them personally. Consequently,
McGinn alleged defendants cause lonely people "humiliation and
disappointment" and to “feel rejected when their e-mails get no reply."126 His
attorney, Norah Hart, goes so far as to caution that, because people feel so
“completely ignored and rejected," these tactics "could affect their romantic

       As a result, McGinn‟s lawsuit sought injunctive relief as well as statutory
and punitive damages in addition to attorney‟s fees, costs, and prejudgment
interest.128 He was seeking $5 million in damages.129

    Id. Breach of the implied covenant of good faith and fair dealing describes a vendor's promise
not to break its word or deny terms that were obviously implied or read into the contract. Id.
    McGinn Complaint, supra note , at ¶ 16.
    Id. at ¶ 21.
123 Shifts Strategy, supra note .
    McGinn Complaint, supra note , at ¶¶ 31-34. allegedly sends these email
notifications for years after attempted cancellations.
    Id. at ¶¶ 23-30.
    Id. at ¶ 36.
127 Shifts Strategy, supra note .
    McGinn Complaint, supra note .

       Ironically, just as McGinn was preparing to file his complaint a woman
responded to his profile but his lawyer refused to confirm whether he found true
love.130 Although he did not drop his lawsuit at that point, he ended his
association with the litigation in September 2009, when a Second Amended
Complaint was filed and Barry Brodsky became the lead plaintiff.131
 filed a motion to dismiss or, alternatively, to transfer the
litigation to Texas.132 Pursuant to the forum selection clause in Match's Terms of
Use Agreement, the court transferred the case to the Northern District of

       Noting a “‟strong policy‟” for enforcing forum selection clauses, the court
rebuffed each of plaintiffs‟ arguments raised to rebut the presumption of

         A forum selection clause is not unenforceable even if it appears in a
          contract of adhesion.
         Unless plaintiffs allege “fraudulent inducement with respect to the forum
          selection clause itself,” general claims that the “contract as a whole was
          tainted by fraudulent inducement” are insufficient to invalidate that
         Even if Texas's consumer protection statute is weaker than New York's,
          has a shorter statute of limitations, and, in contrast to New York, requires
          a finding of willfulness before an award of treble damages can be
          assessed, these differences are not sufficient to amount to a ‟deprivation
          of remedy.‟134

        In opposition to the motion to dismiss, plaintiffs did finally raise two claims
under the New York DSL.135 (1) They alleged enforcing the clause would
frustrate New York's policy of protecting its consumers, specifically in the context
of this act. The court rejected this argument based on precedent that “New
York's interest in protecting its consumers and businesses does not override its
policy of enforcing forum selection clauses.” (2) They also asserted the User

    Jon Hood, Hit With Class Action Lawsuit; Suit Claims Non-existent, Expired
Profiles Are Fraudulent,, June 10, 2009.
    Thomas Zambito, Suit: 'Match' Sticks It to Hopeful Users, N.Y. DAILY NEWS, June 10, 2009, at
3, available at 2009 WLNR 11121567.
    Brodsky v. LLC, 2009 WL 3490277, *1 (S.D.N.Y.).
    Id. at *2.
    Id. at *2-*4.
    The court explained that plaintiffs had not made a motion to amend the pleading to add these
claims but denied what it said was an implicit request to add violations of the New York DSL. In
addition, the judge rejected another amendment alleging a DSL violation of Sean McGinn‟s
privacy as it also could not overcome the forum selection clause. Further, as McGinn is no longer
a party, the new lead plaintiff presumably lacked standing to assert this claim for him. Id. at *4.

Agreement was “void and unenforceable” supposedly for violating the DSL.
However, based on New York's consumer fraud statutes, these theories,
“including their late-added argument” concerning the User Agreement and the
DSL, did not overcome the presumptive enforceability of the forum selection

        At first blush, the fact that McGinn even filed was puzzling because of a
2005 federal class action in California, Evans v. IAC/Interactive Corp.137 in which
Matthew Evans claimed he was a victim of an unfair marketing ploy. In his
complaint, he said Autumn Marzec, who was a Match employee, “winked” at, and
subsequently dated, him138 but later admitted she was being compensated to
communicate with more than 100 members per month.139 As a result, he
accused the site of having a "very dirty, very big secret" – that many of the
“participants” actually worked for the website.140 denied that Marzec
ever was on their payroll and maintained that the service had done nothing
wrong.141 H Scott Leviant, Evans‟s attorney, disagreed. He insisted the
company‟s conduct was deceptive because it "promotes the policies of integrity
to protect members, and yet misleads its entire customer base."142 Nevertheless,
the court denied class certification on April 25, 2007, thus ending the litigation.143

       But McGinn‟s lawsuit actually makes sense as, between the dates of
these two actions against, Anthony v. Yahoo! Inc.,144 a case in which
the class was certified, settled. Although the complaint in Anthony included a
variety of counts, deceptive practices was actually the basis of each.

       Robert Anthony claimed Yahoo! represents that it helps subscribers find
better people to date,145 advises people to be truthful, and even reserves the

      244 F.R.D. 568 (C.D. Cal. 2007).
    Evans v. IAC/Interactive Corp, Complaint, Case No. CV 05-1104 CJC, ¶ 47 (C.D. Cal. Nov.
10, 2005) [hereinafter Evans Complaint}.
    Bob Sullivan,, Yahoo Accused of 'Date Bait': Online Daters Sue Matchmaking
Sites for Fraud, MSNBC, Nov . 18, 2005, available at
    Ashley Fantz, The Internet: Matchmaking Online: Is It Love Or a Lie?, MIA. HERALD, Dec. 18,
2005, at A1, available at 2005 WLNR 20423170 (citing a company spokesman who said Marzec
signed an affidavit swearing she never worked for the site).
    Preying On Lonely Hearts Dating Websites Practise [sic] Fraud On Unsuspecting Visitors and
Gullible Members, S. CHINA MORNING POST, Jan. 10, 2006, at 2, available at 2006 WLNR 477654.
    Evans v. IAC/Interactive Corp, Order Denying Plaintiffs‟ Motion for Class Certification, Case
No. CV 05-1104, DSF (CWx), at 21-22 (C.D. Cal. Apr. 25, 2007).
    421 F. Supp. 2d 1257 (N.D. Cal. 2006).
    Yahoo! Personals calls itself a fun place where single people go to find dates, romantic

partners, and long-term relationships. Member Guidelines, Yahoo!, Personals,;_ylc=X3oDMTFkOXB0cTBrBF9HA3lwZXIE
X1MDOTU5NTk1NjkEc2VjA2Zvb3RlcgRzbGsDZ3VpZGVsaW5lcw--. They promise a huge
audience of potential matches, the tools to find singles you actually DO match, and safe, flexible

right to remove misleading profiles. All of these are attempts to promote a sense
of confidence in the authenticity of images on its website but, at the same time, it
is deliberately engaging in dishonest conduct to trick members into joining and
renewing.146 For example, Yahoo! creates false and/or non-existent profiles and,
when a subscription is about to end, it sends bogus profiles labeled as a possible
new match to induce users to extend their contracts. The service also posts
profiles of actual, legitimate former subscribers, thereby intentionally giving the
erroneous impression that these people are still available.147

       Anthonys primary causes of action were fraud148 and negligent
misrepresentation.149 Rather than dispute the allegations, Yahoo! argued that
the Communications Decency Act (CDA) barred his claims. This is because the
Act protects interactive computer service providers from publisher liability for the
exercise of editorial and self-regulatory functions. Turning to the facts, the court
rejected this defense.150 The judge correctly concluded that if, as Anthony
contends, Yahoo! actually created the false profiles instead of simply publishing
them, it is an information content provider and, thus, not shielded by the CDA
from tort liability.151

       Moreover, the Act would not bar Anthony's assertions that Yahoo! sent
information to current members about legitimate former subscribers who no
longer had contracts with the service. The CDA does not absolve the service
from liability for its own misrepresentations. Because Anthony argued that
Yahoo!'s manner of presenting the profiles  rather than the underlying profiles
themselves  constitutes fraud, the CDA did not apply.152

ways to flirt with them. So then you can have the kind of first dates that lead to second dates . . .
and beyond. What We Believe, Yahoo! Personals, Interestingly, speculation exists
that IAC/InterActiveCorp, the company that owns, is interested in buying Yahoo!
Personals. Analysts value Yahoo! Personals at about $500 million, or three to four times an
estimated $150 million in annual revenue. Scott Morrison, IAC Is in Talks to Buy Yahoo
Personals, W ALL ST. J, Apr. 30, 2009, available at
    421 F. Supp. 2d at 1259. Anthony provided 23 examples which use recurrent distinctive
language for multiple images and identical images for multiple identities. Id. at 1259-60.
    Id. at 1260.
    Id. Fraud requires a representation, usually of fact, which is false, knowledge of its falsity,

intent to defraud, justifiable reliance upon the misrepresentation, and damage resulting from that
justifiable reliance. Id.
    Id. Negligent misrepresentation is similar but does not require the intent to deceive. Id.
    421 F. Supp.2d at 1262-63. See also Bruce Golding, Dot-Com Has Date In Court, NY

POST, June 10, 2009, available at
    421 F. Supp. 2d at 1263.

       In addition, the court rejected defendant‟s procedural objection that the
fraud had not been pled with the requisite specificity. Anthonys allegations
placed the company on notice of the misrepresentations that form the basis of his
claims. He not only listed 23 concrete examples of false profiles, including user
names and excerpts from each posting, he asserted Yahoo! created and
forwarded these profiles to fool new members into joining and discourage current
subscribers from leaving.153

       Anthony also contended that broad disclaimers like Yahoo!s attempt to
exempt itself from responsibility for its own fraud by the phrase all warranties of
any kind are unconscionable and unenforceable. Nevertheless, the court
declined to address the waiver issue as the company could defeat Anthony's
contract cause of action without them.154 Instead, this count was dismissed
because plaintiffs failed to identify any term that required Yahoo! not to create or
forward false profiles. But it seems obvious that defendant should be liable for
such fraudulent conduct as the reasonable person in Anthonys position would
not think it was part of the bargain. However, Judge Whyte ruled that the
language relied upon merely described Yahoo!'s dating service and did not
commit the service to perform or not perform any particular action.155 Undaunted,
Anthony asserted that, even if Yahoo! had not violated any express contract
provision, he could still maintain an action for breach of the implied covenant of
good faith and fair dealing. He was granted leave to amend to include such a

         Finally, after approximately three years on his docket, on September 17,
2008, Judge Whyte signed an order approving a final settlement. He determined
the agreement was fair, adequate and reasonable157 because defendants
liability was in question, the injury to individual class members minimal and
favorable injunctive relief was negotiated.158 While he agreed plaintiffs lawyers
were entitled to a 25% contingency fee, the judge said their award should be
based on net rather than gross recovery. Although the order provided a
formula159 for the computation, it failed to determine the exact amount of the fees
because the total administrative costs, which could have run as high as $1
million, was not yet known.160 Of course, although each subscriber161 received

    Id. at 1263-64.
    Id. at 1261 n.4.
    Id. at 1260-61.
    Id. at 1261-62.
    Anthony v. Yahoo! Inc., Order Granting Motions For Final Settlement Approval, Award of
Attorneys Fees and Expenses, and Class Representative Incentive Award, No. C-05-04175
RMW, page 1, lines 22-24 (N.D. Cal. Sept. 17, 2008).
    Id. at page 1, lines 24-26.
    The formula, with $X being the total administrative expenses, was 25% of ($3,925,569.28 -

$X). Id. at page 3, line 3.
    Id. at page 2, lines 4-28 and page 3, lines 1-3.
    Robert Anthony, the named plaintiff, was awarded an additional $20,000 “Incentive Bonus.”
Id. at

only $35, given that the total award was $4 million,162 the contingency fee would
be substantial and it is not surprising that lawyers are willing to pursue these
claims and generally seek class action status.163

      Remarkably, despite the negotiated settlement, the litigation was not over.
The order noted and overruled subscriber Michael J. Englands objection to the
$35 awarded each class member164 but, still dissatisfied, he appealed.165

                                    Breach of Contract

        Although suits by disappointed clients typically claim the dating service
failed to do what it promised, the facts that motivated Soheil Davood to sue were
unusual. His complaint was based on JDate‟s express representation that he
would find "‟high quality successful Jewish personals [sic] without wasting
precious time.‟"166

        The problem began with a “real-time chat" between Davood and “Brenda”
who described herself as "a 34-year-old Ashkenazi Jewish female."167 He
alleged she made sexual remarks during their online dialogue, including that “she
is in love with Persian men” and “likes to stay at home and cook for her man in
her lingerie.” She also said “she wants a man who is excellent in the bedroom;
that she is not playing with him; and that she might have found her man in the

      Further, rather than indicating dissatisfaction with him or their interaction,
he asserted she really wanted to talk to him and convinced him to call her
immediately on a number she gave him even though he had stated he was tired
and wanted to go to sleep. But, when he called, he "received a taunting
automated message telling him that he was rejected."169

      As a result, Davood sought unspecified compensatory and punitive
damages, arguing the website was "defective" because it was poorly designed
and monitored, exposing him to "serious psychological injury." 170 He raised three
counts against Jdate: (1) Breach of Express Warranty,171 (2) Breach of Implied

    Id. at page 2, line 25.
    Zambito, supra note .
    Id. at page 1, line 22.
    Anthony v. Yahoo! Inc., Notice of Appeal, No. C-05-04175 RMW, (9th Cir. Dec. 29, 2008).
    Complaint at ¶ 7, Soheil Davood v. Spark Networks, PLC, No. BC339998 (Cal. Super. Ct. L.A.
Cty. Sept. 16, 2005).
    Id. at ¶ 9.
    Id. at ¶ 10.
    Id. at ¶¶ 11-13.
    Id. at ¶ 18.
    Id. at ¶¶ 14-19.

Warranty,172 and (3) Negligent Misrepresentation.173 Not surprisingly, within a
few months, Davood dismissed his action.174

                                       Refusal to Cancel

       One recurring complaint is that dating services charge credit cards even
after customers followed the necessary steps to terminate their contracts.175
According to Thomas Wong, like many others, he found himself in this position.
However, after more than six months of trying unsuccessfully to cancel, he

       The “terms and conditions” provided that a free trial period must be
terminated within three days.177 If this was not done, subscribers would be
“„automatically billed‟” for all services and “‟automatically renewed on a monthly
basis‟” until proper cancellation. Although this could only be done on the phone,
the website said it could be done “„at any time.‟”178

       Wong claimed he and other customers were repeatedly billed even though
they were not notified and had not authorized any payments after they told the
company they no longer wanted to subscribe. He explained that, when he
enrolled in August 2006, he provided credit card information and was given a trial
membership.179 After his free, three-day period expired, he was charged $49.99.
He tried to cancel online but, approximately a month later, he was charged
again.180 Although a few weeks later he called the correct number and
specifically said he wished to end the contract, and that he did not authorize any

    Id. at ¶¶ 20-25.
    Id. at ¶¶ 26-31. Davood also sued the “‟SuperfriendlyGal‟ and others unknown to plaintiff” for
Intentional Infliction of Emotional Distress (id. at ¶¶ 32-35) and Negligent Infliction of Emotional
Distress (id. at ¶¶ 36-40).
    SEC Info, SEC File 333-123228, Sparks Network, PLC, Apr. 21, 2006, available at
    Consumers Looking for Love Need to Be On the Lookout: Complaints to BBB for Dating
Services Are On the Rise, US FED. NEWS, Feb. 4, 2008, available at 2008 WLNR 19920602. In
fact, according to an analysis of Better Business Bureau records, 63.7% of a rising number of
complaints filed against online dating sites involved accounts being automatically renewed
following cancellation of the trial period or contract. It appears this happens either because the
client did not realize what he had to do to terminate or, despite taking the necessary steps, the
company charged his credit card. Id. Some people even claim they were not able to get the
service to stop until they canceled the card. George Gombossy, It's Often Hard to Break Up With
Online Services, HARTFORD COURANT (Conn.), Apr. 21, 2007, at A2, available at 2007 WLNR
    Wong v. TrueBeginnings, LLC, d/b/a, Complaint, No. 07-05545 (N.D. Tex. June 12,
    Id. at ¶¶10-13
    Id. at ¶20.
    Id. at ¶¶27-28.
    Arguably this should not have been a surprise to him as the only approved
 way to terminate was on the phone. Id. at ¶16.

other billing, he found still another $49.99 on his statement the next month. At
this point, Wong called the company, disputed the charges, demanded a refund,
and again requested termination of his account. In fact, in his complaint he
alleged he attempted to cancel in August, September, October, November,
December, and February. While he also asked for his money back several
times, he never received a refund.181 Therefore, he filed a class action suit182 on
June 12, 2007.183 His pleading contained several counts including that the
company‟s practice of charging unauthorized fees after cancellation “constitutes
unjust enrichment, conversion, money had and received, negligence,
unconscionability, breach of contract, and/or violates the Texas Deceptive Trade
Practices and Consumer Protection Act.”184

       For himself and other class members, Wong sought compensatory, actual,
and punitive damages, as well as statutory fees and equitable relief including “an
injunction prohibiting the Company from continuing to collect post-cancellation
fees for the Service, barring the Company from using certain contract terms, and
demanding that the Company implement sufficient systems for cancellation.”185

       Approximately two years later, the parties entered a Stipulation of
Settlement and Release.186 While “denying wrongdoing of any kind whatsoever,
and without admitting liability,” the company said it agreed to the terms “to avoid
further expense, inconvenience, and the distraction of burdensome and
protracted litigation.”187 As class representative, Wong agreed to dismiss the
action with prejudice and without leave to amend.

       In exchange for the dismissal and release, the company agreed to pay
$1.5 million into a settlement fund to be distributed as follows:

         Class members charged for one month after they cancelled receive $35.
         Class members charged for two or more months after they cancelled
          receive $50.
         Settlement Class Counsel receives attorneys‟ fees and costs that are
          approved by the court.
         Any incentive to named plaintiff approved by the court.
         All costs of notice and administration.
    Id. at ¶¶29-37.
    Wong defined the class as “all persons who, during the period beginning four (4) years before
the date on which this complaint is filed, and ending on the date that the Court certifies a class,
[who] were charged service fees by Defendant after they cancelled their subscription.”
Id. at ¶44. Although he concedes he does not know the number of people who fall within the
class, he points out that the company “boasts more than ten million subscribers” and, thus, he
believes “that, at a minimum, the Class consists of several thousand members.” Id. at ¶47.
    Id. at ¶23.
    Wong v. TrueBeginnings, LLC., Stipulation of Settlement and Release, No. 3-07CV1244-N
(N.D. Tex. 2009).
    Id. at 3.

         Whatever remains after distribution split equally between and cy
          pres to

        In addition, based on allegations that the Auto-Subscription system was at
least part of the problem, TrueBeginnings agreed to an injunction limiting its use
to situations where there is “at least one intervening step requiring some
affirmative action” by the potential member that indicates actual assent to re-

                               Noncompliance with Statute

      Most cases are decided, at least in part, by applying a state statute. Doe
v. Great Expectations190 is illustrative. Based on the contract and the testimony,
the court concluded the New York Dating Service Law (DSL) applied and this
business was a “social referral service.”191

        The facts were simple. Two women sought to recover fees they paid to
defendant to have their videos and profiles posted on its Internet website. Both
printed form contracts included standard terms192 stating that subscribers would
get a “‟photo shoot, video, workbook on dating, counseling, background checks,
[and] dating etiquette‟” as well as that Great Expectations “‟will provide zero
number of social referrals‟” and “‟is not promising to furnish the Member with any
social referrals and the Member does not desire or expect the Company to
furnish social referrals.”193

       Jennifer Doe194 claimed that, although she signed a $1,000 contract for a
term of six months, she did not meet anyone through the service.195 Debra Roe
signed a $3,790 contract for a term of 36 months and eventually extended to a
total duration of 54 months. She testified “she was introduced to no prospective
suitors and met only one person who approached her after seeing her posted

       The threshold issue was whether the DSL governed these contracts.
Referring to previous, non-online decisions, Justice Lebedeff explained it had
been judicially determined more than a decade earlier that the statute applied to
services whose procedures for matching members were similar to the one in this

    Id. at ¶16.
    Id. at ¶18.
    809 N.Y.S.2d 819 (N.Y. Civ. Ct. 2005).
    Id. at 820.
    Id. at 820.
    Id. at 820 n.1.
    The court substituted Doe and Roe for the last names of the claimants. Both appeared pro se.
    She did admit that, at some point, she stopped checking whether she had messages. Id.

case.197 In addition, the statutory language refers to services that match “by use
of computer” and thus “[t]he mere fact that the basic social introduction process
was to be conducted on the Internet . . . does not place the dating service outside
the scope of the law.”198

        The court reviewed the agreements and found two clear statutory
violations. First was a “massive overcharge” because, unless a provider agrees
to furnish a specified number of social referrals, its fees are limited to $25 per
month. Great Expectations specifically said it was not promising to supply any
referrals so the restriction applied. Nevertheless, it charged Doe $1,000 and Roe
almost four times that.199 Second, their form contracts failed to include all but
one (notice of the three-day right to cancel) of the explicitly mandated

        Turning to appropriate recovery, the court said it was “fully satisfied that
„actual damages‟” included the difference between each contract price and the
maximum allowable fee. But the clients insisted they were entitled to a full refund
including the $25.201 Justice Lebedeff agreed because Roe and Doe appeared
to be “intelligent, well spoken and attractive professional women [who] carefully
negotiated the services to be provided.”202 Thus, she placed the blame
completely on the defendant and stated that if the clients had received the
statutorily required “Dating Service Consumer Bill of Rights” so that they knew
what they were entitled to, neither woman would have signed a contract
containing terms that did not comply with applicable law.203

       Justice Lebedeff explained further that the “actual damages” language
was added in 1992 and “‟evened the playing field‟” when it provided restitution as
the consumer‟s single remedy204 – one that could be achieved by either bringing
an individual suit or filing a complaint with the attorney general. This change was
consistent with New York's commitment to protect members against dating
services that employed unfair pricing practices. If such contracts were enforced,
social referral services would continue to “violate the statute with impunity,
secure in the knowledge that the only penalty they face will be a reduction in their

    Id. at 820.
    Id. at 821.
    Id. at 820.
    Id. at 821-22.
    Id. at 822-23.
    Id. at 823.
    Id. See, e.g., People v. Introductions Inc., 252 A.D.2d 631, 632 (N.Y. App. Div. 1998) (seeking
restitution for 521 customer complaints in the amount of $204,287.10 and penalties of $150,000).
In addition to not providing referrals, this company made some very bad matches. For example,
Sharon Kundin, who is Jewish, said she was matched with a member of the German army from
World War II. David Orenstein, State Announces Dating-Service Probe, ALBANY TIMES UNION
(NY), June 20, 1996, at B10, available at 1996 WLNR 314040.

fee to the statutory limit.”205 On the other hand, such contracts can no longer
simply be invalidated as contrary to public policy.206

       Consequently, the court awarded each claimant her contract price with
interest from the date of the original payment.207 The opinion also cautioned that,
because the agreements were terminated pursuant to the DSL, Roe and Doe‟s
confidential material should be returned even though their documents omitted the
language obligating the service to do so.208

       Similarly, in Robinson v. Together Member SVC, Anna Robinson sued to
recover the $2,000 membership fee she paid when she joined a dating service in
July 2008.209 Although she received three referrals, when she called and spoke
to each of the men, they agreed to meet but, while they promised to, they never
contacted her. As a result, she attempted to get out of the agreement but was
informed that the contract provided there are no cancellations or refunds. But she
insisted she was entitled to return of her money because the referrals did not
lead to meetings and she had not received any names since the first three.210

       On cross examination Robinson, who represented herself,211 testified she
did not understand the paragraph that defendant claimed denied her recovery.
The company representative took the stand for her long-time employer and
explained Robinson was bound by the contract because it contained no time limit
and would only expire after the member received five referrals.212

    809 N.Y.S.2d at 823, citing Chassman v. People Resources, 573 N.Y.S.2d 589, 591 (N.Y. Civ.
Ct. 1991).
    Id. This is what happened under an earlier version of the DSL that was silent about the
punishment for non-compliance. The court was referring to Chassman, 573 N.Y.S.2d at
591(determining singles organization was a “social referral service” subject to the DSL even
though matching was not done by computer so that, because of the statutory violations, the
contract was void and unenforceable).
     809 N.Y.S.2d at 823.
    Id. at 824. The decision also discusses the obligation of a judge who learns information
indicating a litigant or witness may be “guilty of unlawful conduct” during a legal proceeding.
Because of this duty, after considering various factors, Justice Lebedeff decided to forward a
copy of her decision to the appropriate authorities. Id.
    880 N.Y.S.2d 839, 839 (N.Y. Civ. Ct. 2009). Although members fill out an online
questionnaire, in many ways this service is more like a traditional matchmaker. This case is
important, however, as a recent opinion clarifying the statutory requirements and underlying
public policy.
    Id. at 842. The court noted it could be argued Robinson actually did not receive any referrals
and defendant breached its contract. This is because, although she spoke to three men on the
telephone, none of these “introductions” resulted in a face-to-face meeting or date. According to
her credible testimony, each man had practically the same story, and despite promises to call,
they never did. Thus it is not surprising that plaintiff felt frustrated and believed Together had
taken advantage of her. Indeed, this is exactly why the DLS is so specific and restrictive. Id.
    Id. at 839. A lawyer represented the service. Id.
    Id. at 840. The representative also submitted an American Express receipt which indicated
“No Refunds.” Id.

       As the court states, however, these provisions themselves violate public
policy as well as applicable laws.213 In fact, the decision also listed several other
ways in which the agreement did not comply with the statute.214

         Robinson was charged a membership fee greater than allowed.215
         Services to be provided were for an open-ended length of time as
          opposed to no more than a two-year period.
         She was told she would get five referrals but, because Together did not
          provide the specified monthly minimum, the maximum charge permitted
          was $25. Consequently, plaintiff clearly was “grossly overcharged.”216

    Therefore, Judge Dollard ordered Together to refund the $2,000
membership fee plus interest.217

       In Grossman v. Matchnet, a subscriber sought damages on two grounds –
in addition to the claim that her contract violated the state statute218 she argued
she should be able to recover in quasi contract.219 However, although she was
correct that the document omitted specific provisions the DSL requires, Lili
Grossman lacked standing. Not only did she fail to aver any “actual harm”
stemming from defendant's omissions, she did not assert she ever sought to
cancel or suspend her subscription, “much less that the rights guaranteed her in
the event of cancellation or suspension were actually denied her by defendant in
reliance on the allegedly statutorily inconsistent provisions of its subscription
contract.”220 The court also rejected Grossman‟s request for equitable relief as
she had not identified any manner in which the service was unjustly enriched.
She paid for two months and received the benefit for which she paid. 221

        A separate concurring opinion agreed Grossman had not sufficiently
alleged she sustained any “‟actual harm‟”222 but, unlike the majority, determined
the statute was irrelevant to her claim. This is because, although MatchNet
“arrange[es] (sic) romantic encounters through the Internet” and is “a dating
service . . . [which] coordinat[es] romantic introductions to members also
participating in the service,” plaintiff does not state that the company actually
matches members. Instead, MatchNet, the owner of, “merely
provides people with the opportunity to seek out and communicate with each
    Although Robinson signed the contract in New Jersey, the court found the location was one of
defendant‟s “tri-state offices.” Moreover, as she is a New York resident and the provisions of the
contract relating to “Governing Law” apply only to New Jersey residents, the agreement was
governed by New York laws. Id. at 840 n.1.
    Id. at 841-42.
    She paid $2,000 which is twice the statutory maximum. See supra note .
    880 N.Y.S.2d at 841-42.
    Id. at 842.
    782 N.Y.S.2d 246, 247 (N.Y. App. Div. 2004).
    Id. at 248 (Sullivan, J. concurring).

other” rather than “tak[ing] an assertive role in matching single[s].”223 Therefore,
based on the definition of a social referral service as “‟any service for a fee
providing matching of members of the opposite sex, by use of computer or any
other means, for the purpose of dating and general social contact,‟” Justice
Sullivan concluded MatchNet should not have to comply with the statute.224
Unfortunately, this theory is fundamentally flawed – particularly because the
majority of dating websites use a similar process. As a result, this interpretation
would mean almost all dating services would not be subject to the DSL, an
outcome that is definitely contrary to the law‟s purpose.

        Ironically, Justice Sullivan actually used the legislative history as support
for his position. “The harm sought to be prevented was the practice of dating
referral services that required their customers to sign long-term contracts
involving significant sums of money.”225 As he pointed out, that obviously was
not the situation in this case as Grossman‟s only investment was $57 -- $28.50
each for two months‟ service.226

        While this part of his argument makes superficial sense, on further
reflection at least two glaring problems exist. First, cases as far back as 1976227
held that lawmakers intended the statute to be read broadly and Justice
Sullivan‟s is interpretation is extremely narrow. Second, a similar analysis was
explicitly rejected in Great Expectations Creative Management, Inc. v. Attorney
General of the State of New York, 228 where, in 1994, the dating service sought a
declaratory judgment as to whether it would be subject to the DSL if it moved into
the state.229

    Id. at 248-49.
    Id. at 248-49.
    For example, in State v. Leifer, the attorney general, sued a woman who “matche[d] men and
women for social purposes for a fee.” 392 N.Y.S.2d 175, 176 (N.Y. Sup. Ct. 1976). Although the
opinion does not explain the method used to pair clients, given that this is a 1976 decision it
obviously was not an online service. Nevertheless, it is important for this discussion because the
court rejected defendant‟s argument that, although her contracts did not comply with the statute,
they were not required to as she was bringing people together “for the purpose of marriage”
rather than “social referral services.” Id. Referring to the legislative history, Justice Sidney H.
Asch explained the DSL was intended to be interpreted broadly. Id. at 177. According to the
court: “There is no significant difference, insofar as concerns the application of this statute,
between a service which introduces people for the purpose of marriage, and those that introduce
people for other social purposes, such as dating or dancing.” Id. Interestingly, the “dancing”
reference is to Weil v. Arthur Murray, Inc., 324 N.Y.S.2d 381 (N.Y. Civ.Ct.1971), where § 394-c
was held to include a dancing school. 392 N.Y.S.2d at 176.
    616 N.Y.S.2d 917 (N.Y. Sup. Ct. 1994). Although the attorney general, rather than a client, is
the party here, this case is important as it specifically addresses, and debunks, an argument that
dating services continue to raise.
    Id. at 918.

         Based on its procedure,230 the company claimed “to be merely the
facilitator rather than a provider of member-matching services.”231 Justice
Greenfield disagreed, pointing out that the plain language of the statute
demonstrates it is not limited “only to services that actually do the matching, but
includes those agencies which make available the means for persons to do their
own matching.” 232

       As Great Expectations was not an online site at the time, it is important
that Justice Greenfield added that “[t]he precise technique is of no moment.” He
goes on to explain that the “any other means” statutory language “clearly
contemplated that matching could be made by techniques or technologies which
could not then be specified or anticipated,”233 thereby encompassing the Internet.

        Plaintiff‟s final arguments were also rejected. There was no ambiguity as
to the meaning of “providing matching of members.” Moreover, the statutory
limitation of $250 for social referral services is not an unconstitutional price
control as this is not a purely private business.234 The law was passed to protect
vulnerable victims preyed upon by unscrupulous services. Similar regulations of
gyms, dance instruction, and other social and training facilities have survived
such challenges.235 Further, plaintiff argued the cap effectively barred it from the
state because it made it economically unfeasible to operate for the allowable fee.
The court disagreed as other agencies that had to follow the same rules were
successful. Thus, the statute was a reasonable response to the abuses it was
enacted to address and applied to services that act as intermediaries facilitating

         Doe v. v., despite alleging legal claims ordinarily found in
litigation against a dating website, was what the court called an “unusual case of
first impression.”237 John Doe238 joined SexSearch – an “online adult dating

    At the time, Great Expectations was not yet an online service but the procedure was similar in
fundamental ways and, therefore, the case relevant. New members prepared personal profiles in
which they specified what they were looking for in a mate. They were photographed and
produced a five minute video. Others watched these tapes and selected people they would like
to meet. Employees contacted the chosen subscribers who reviewed the initiating member's
materials and, if interested, Great Expectations sent the name and telephone number of each to
the other. According to the service, what followed was up to them. Id. at 919.
    Id. at 920. The opinion refers to an earlier case, Lewis v. People Resources Inc., reported in
the New York Law Journal. N.Y.L.J. Mar. 9, 1992, at 31, col. 1; N.Y. Sup.Ct. (noting that based
on the statute‟s use of “providing,” it was sufficient that the service made the matching of
members available).
    616 N.Y.S.2d at 920.
    Id. See also People v. Helena VIP Personal Introduction Service of New York, Inc., 204
N.Y.L.J. at 22, col.2, Sept. 26, 1990 (holding in a non-online case that §394-c(2) is a reasonable
business regulation designed to protect against fraud; the $250 fee cap is not, in and of itself,
unduly burdensome or confiscatory; and the statute is valid on its face).
    616 N.Y.S.2d at 920.
    Id. at 920-21.
    551 F.3d 412, 415 (6th Cir. 2008).

service” that “facilitates sexual encounters between its members.”239 He met
Jane Roe whose profile said she was an 18-year-old female. They had sexual
relations but, because Roe was really only 14, Doe was arrested and charged
with unlawful sexual conduct with a minor.240 As a result, he filed suit against
SexSearch alleging a variety of violations of state law,241 most based on his claim
that the dating service is responsible for his sexual relationship with an underage
girl as well as for harm he suffered because of his arrest. He made these
arguments even though, for unexplained reason(s), the charges were dismissed
and his records sealed. However, according to Doe, the arrest and prosecution –
and accompanying adverse publicity – caused lasting damage “to his reputation,
family life, and employment prospects.”242

         Not surprisingly, the federal district court dismissed all 14 causes of action
for failure to state a claim. Although Judge Zouhary also held eight of the 14
causes of action were barred by the Communications Decency Act (CDA), 243
because the Sixth Circuit agreed Doe‟s complaint failed to state a claim, it did not
reach the question of whether the CDA provides SexSearch with immunity from


Sexual Orientation

       Gays and lesbians seeking matches with same sex partners sued
eHarmony in New Jersey and California when they realized the popular dating
service was only available to heterosexuals.

    For obvious reasons, the parties used pseudonyms.
    551 F.3d at 415.
    These included:
      breach of contract;
      fraudulent representation;
      negligent infliction of emotional distress;
      negligent misrepresentation;
      breach of warranty;
      deceptive trade practices under Ohio Consumer Sales Practices Act (OCSPA);
      unconscionable acts under OCSPA;
      unconscionability; and
      failure to warn.
Id. at 416-20.
    Id. at 416.
    Id. at 415 citing 47 U.S.C. § 230.
    The Sixth Circuit rejected the judge‟s discussion of the Act because it read § 230 more broadly
than any Court of Appeals decision, “potentially abrogating all state- or common-law causes of
action brought against interactive Internet services.” The appellate court also pointed out that it
was not addressing “any issue concerning the criminal liability of the parties or the voidability of
contracts for sexual services.” Id.

                                           New Jersey

        Eric McKinley attempted to join eHarmony but discovered the website did
not provide an option allowing men to search for male partners. As a result, the
New Jersey resident filed suit on March 14, 2005, claiming the dating service and
founder Neil Clark Warren violated the law and discriminated against gays and
lesbians.245 Although defendants denied the allegations, and Warren objected
that his special method for matching people relies on extensive research with
heterosexuals only, 246 causing him to doubt whether it would be effective for
same-sex couples,247 the complaint led to a state investigation. The Director of
the Civil Rights Division (Division) sided with McKinley and issued a finding of
probable cause.248 A motion for reconsideration was “held in abeyance” while
the parties negotiated a settlement. Stating that there had been no findings on
the merits, and that eHarmony did not admit liability,249 in return for the dismissal
with prejudice and a General Release, the company agreed to pay the Division
$50,000 for administrative costs, to reimburse plaintiff $5,000 for time and
expenses, and to offer same sex matching services.250

      Although eHarmony was required to use “substantially similar” procedures
and subscriptions, and the “same or equivalent” technology, service quality,
terms and fees as for heterosexuals, it was permitted to create a different
website251 and the company reserved the right to include a statement that the
system used was developed based on research of married heterosexual
couples.252 In addition, the new site would be launched by March 31, 2009 and
eHarmony promised to provide free one-year membership to McKinley and six
month memberships to the first 10,000 users to register within a year of
launching the site. The company made a “good faith commitment to the
success” of the new site and promised not to discontinue it within two years. 253

    McKinley v., No. PQ271B-02846, Settlement Agreement, Consent Order and
General Release (Office of Attorney General, Division on Civil Rights Nov. 12, 2008).
    The company‟s position has been that it excludes gays because “it doesn't know what makes
them tick.” In fact, in a 2005 interview, Warren said, "I don't know what the dynamics are there. . .
. We think the principles probably are different." They're Just Not Into You, supra note . Warren
also said that, as same sex marriage is “illegal” in most states, "We don't really want to participate
in something that's illegal." Janet Kornblum, eHarmony: Heart and Soul, USA TODAY, May 19,
2005, at 1D.
    Hill, supra note .
    Id at ¶2.
    Id at ¶¶ 3-5.
    Id. at ¶ 5.a. The website was also required to identify its relation to eHarmony. Id. at ¶5.b.
    Id. at ¶ 5.c.
    Id.. at ¶¶ 5d.-i.

       As promised, eHarmony launched Compatible Partners on time.254 A
public relations firm that is well regarded in the LGBT community was hired to
help develop and market the new service. 255

        However, demonstrating this really is a divisive issue, although some gays
and lesbians seem satisfied with the creation of a second site rather than
inclusion on the eHarmony website,256 others vehemently object. Reaching back
into history, they insist that, in overruling Plessy v. Ferguson, the Supreme Court
rejected the idea of "separate but equal" as a legitimate policy. 257 Indeed, as
one plaintiffs' attorney stated, "‟[n]othing in the law or logic allows companies to
operate a business that discriminates so long as they open up another one that
does not.‟"258

       Moreover, they have cleverly used Warren‟s primary defense of his
“opposite sex only” policy against him. He has repeatedly asserted he did not try
to match same sex couples because all his research was based on married
heterosexuals. Consequently he was not sure whether the data would be
applicable. Therefore, homosexuals are now arguing that – because the
company did not create a new methodology but extrapolated from its original
process – gay, lesbian, and transgendered subscribers may be given weaker
matches than their straight counterparts.259


       Following the breakup of a decade-long relationship, Linda Carlson, a
California resident, logged on to eHarmony. When she realized there was no
category for people seeing same sex relationships, she attempted to persuade
the company to add a new category: a woman seeking a woman.260 When the
website rejected her request, Carlson filed a lawsuit on May 3, 2007 charging
that eHarmony knowingly and intentionally violated California‟s Unruh Civil Rights

    Kimberly Maul, eHarmony LGBT Site Debut Places It In Unfamiliar Market, PR W EEK USA,
Apr. 6, 2009, at 2, available at 2009 WLNR 6422322.
    For example, McKinley originally termed the settlement “a great victory.” Elise Young,
Settlement Moves eHarmony Into Same-sex Dating, NJ REC., Nov. 20, 2008, at A1, available at
2008 WLNR 22283042. But see Donna Weaver, N.J. Man's Efforts Push eHarmony to Launch
Gay Site, PRESS ATLANTIC CITY, Apr. 3, 2009, at C6, available at 2009 WLNR 6315745. However,
later McKinley said "I'm disappointed. We got what we wanted, but they are still keeping it
separate from the regular eHarmony Web site." Id.
    Jon Hood, eHarmony Faces New Lawsuits for "Separate But Equal" Policy; Dating Site
Accused of Segregating Same-sex Dating Partners,, Apr. 3, 2009, at
    Debra J. Saunders, Editorial, Disharmony: The New Tolerance, S.F. CHRON. (CA), June 7,
2007, at B7, available at 2007 WLNR 10578662.

Act by discriminating against class members based on sexual orientation.261 She
sought class certification, a declaratory judgment that defendants‟ policy was
unlawful, injunctive relief, and statutory and punitive damages as well as
attorney‟s fees and costs in addition to “such other relief as this Court deems just
and appropriate.”262 Because Warren‟s methods appear to be successful in
aiding straight singles to find a mate, it is certainly understandable that gays and
lesbians would want the same opportunity to find love.263 However, Warren
insisted, as he did in New Jersey,264 that he did not know whether his method for
matching people based on research with heterosexuals would be applicable to
same-sex couples.265

        Predictably, as soon as they settled the McKinley case, defendants
argued the California case was moot. But plaintiffs continued the litigation
because they claimed the agreement is not binding outside New Jersey. In fact,
ironically at about the same time the New Jersey settlement was announced,
Judge Victoria Chaney granted the motion for class certification in California.266
She also ordered the parties to mediation before the scheduled trial date.
Plaintiffs sought damages in addition to injunctive relief forcing eHarmony to
provide people seeking same sex partners all the services it offers to
heterosexual members.267

       Based on the population and general financial status of many gays and
lesbians, eHarmony‟s agreement to settle seems to be a wise decision for both
sides. This, of course, assumes that the LGBT community decides to participate
on Compatible Partners and move on by forgiving past practices. 268

Marital Status

    Carlson v. Inc., No. BC371958, Complaint, ¶¶ 32-38, (Super. Ct. L.A. Cty. May
3, 2007) [hereinafter Carlson Complaint]. Since the filing, Carlson has dropped out and been
replaced by Nate Cardin, a Stanford graduate student, but the arguments remain the same. Evan
Hill, Critical Juncture For eHarmony Suit, RECORDER (San Francisco, CA), Sept. 25, 2008, at 1,
available at 2008 WLNR 27146393.
    Carlson Complaint at Prayer (a)-(i). In 2005, California's Department of Fair Employment and
Housing rejected a similar claim, concluding that eHarmony wasn't required to provide services
that are available elsewhere. In addition, it said the state's civil rights act "does not mandate a
result whereby a business offers the same services to every customer." They're Just Not Into
You, CHI. TRIB., Dec. 1, 2008, at 32, available at 2008 WLNR 22989523
    See supra notes and accompanying text.
    Hill, supra note . Probably based on this concern, the New Jersey attorney general agreed in
the settlement that the company could include a statement that the system was developed based
on research with married heterosexual couples. See supra note .
    Id. Potential class members include gay, lesbian, or bisexual individuals who attempted to
register on the website as early as May 2004 but were denied access. A person need not
demonstrate actual injury to join the class. Id.
    Young, supra note .

       John Claassen‟s discrimination case against eHarmony did not fare as
well as McKinley‟s. The 36-year-old lawyer claims he was also illegally rejected.
At the time that the popular website denied his application to join he was already
separated from his soon-to-be ex-wife and only two months from being
divorced.269 He filed a complaint in Alameda County Superior Court alleging the
company, which freely advertises its “discriminatory policy of excluding legally
separated individuals," violated state law by refusing to allow him to register
based on his marital status.270

        Claassen insisted the decision should be left to individual members rather
than the dating service. However, eHarmony pointed to numerous customer
surveys showing most subscribers “want their matches to be divorced, widowed
or never married at all.”271 After a little more than two years, Claassen dismissed
his suit with prejudice.272


        Michael Cohn, ‟individually and on behalf of the general public,‟ sued alleging the website discriminated against him and other males by
offering women a free lifetime or long-term subscription but only providing men a
one- or two- week free trial.273 Unfortunately, Cohn v. Truebeginnings, LLC has
not yet been decided on the merits. When plaintiff sued in California, his home
state, the Texas-based company moved to dismiss raising forum non
conveniens. Pointing to the Terms of Use on its website, it claimed an
individual signing up for agreed disputes were to be resolved in

      Although plaintiff objected because he claimed he had not agreed to the
terms of use when he registered for his trial membership, after some procedural
maneuvering the appellate court ultimately agreed Texas was the more
convenient forum and affirmed a stay in the California proceeding.

    Not Quite Single Lawyer Sues After Rejection By eHarmony, ARGUS (Fremont Newark, CA),
Mar. 29, 2006, available at 2006 WLNR 5329189 [hereinafter Not Quite Single].
    Claassen v., Inc., Complaint, No. RG06260908, ¶¶11-16 (Super. Ct.
Alameda Cty. Mar.21, 2006).
    Not Quite Single, supra note .
    Claassen v., Inc., Request for Dismissal with Prejudice, No. RG06260908,
(Super. Ct. Alameda Cty. July 1, 2008). Other services allow those who are separated to join and
some websites actually target married people. See, e.g., Ashley Madison, at (last visited Jan. 18, 2010) (displaying trademarked motto: “Life
is short, have an affair”). Therefore, this group has opportunities to participate in online dating –
just not on eHarmony. Of course, although a similar argument was successful in one 2005 suit,
see supra note and accompanying text, since then courts have rejected it. See supra note and
accompanying text.
    Cohn v. Truebeginnings, LLC, 2009 WL 793925, *1 (Cal. App. 2 Dist.). The lawsuit was
actually against TrueBeginnings, LLC, doing business as Id.

       The appropriate forum and the validity of a choice of law provision 275 are
very important in these cases as most of these contracts contain similar clauses.
Because potential plaintiffs are very likely to be from jurisdictions other than
where the dating service is located, enforcing them presents a significant
obstacle to bringing such lawsuits.

                                      Failure to Protect

        One of the primary fears that people have about online dating is
encountering sexual predators.276 Unfortunately, although Doe v. MySpace,
Inc.277 should shed light on a service‟s responsibility for screening minors to
protect them from such offenders, the litigation has not reached a decision on the
merits. It was brought in a New York court and then removed to federal court in
the Southern District, after which it was transferred to the Western District of
Texas. Ultimately the Fifth Circuit decided only the jurisdiction question.278

       The case was filed against a web-based social network for its alleged
negligence in failing to prevent a 14 year old girl from creating a profile by lying
about her age. She asserted that after the information was posted, a pedophile
contacted her, they met, and he sexually assaulted her. The Court of Appeals
rejected the mother's argument that the negligence claims were not brought
against the company as publisher of the biography her daughter prepared but
rather for failing to exercise reasonable care in screening underage users.279
Therefore, the Communications Decency Act (CDA), which protects online
service providers from liability arising from publication of user-generated content,
barred the action.280

                                    Part VI. Conclusion

       In the 15 years since launched the first dating website, the
number of users and services has skyrocketed. Based on this success, and all
expert predictions, online dating services will continue to grow. Unfortunately,
however, unscrupulous individuals who are attracted to an industry that is so
prosperous will also persist in trying to exploit unsuspecting participants. As a

    The contract also provided that Texas law governed. Id. However, the court did not decide
the validity of that provision. Id. at *5
    Editorials, Online Dating Safety: No Such Thing, PRESS ATLANTIC CITY, Nov. 27, 2007, at A8,
available at 2007 WLNR 23454461.
    528 F.3d 413 (5th Cir. 2008).
    Id. at 417-18.
    Id. at 418.

result, it is likely that additional statutes will be passed281 and more disappointed
subscribers will sue.

   Although beyond the scope of this article, it is important to point out that participants also face
safety and security issues that are not addressed in current statutes. New Jersey is the only
state that requires services to disclose whether they perform background checks. See supra note
. Cf. W ASH. REV. CODE § 19.220.010 (2009) (requiring International Matchmaking Organizations
in Washington to provide “recruits” who request it “background check information and personal
history information” in their native language). However, even that is insufficient as the law does
not require these checks and even if it did they have serious limitations including that: (1) they
may not identify people with criminal records, (2) many predators are not even in the system
because they have never been caught so they will avoid detection, and (3) dating services do not
have the ability to keep potential subscribes from posting false profiles. Internet Alliance: Online
Dating White Paper, (last visited Sept.
27, 2009). The reality is that sexual and financial predators use and abuse the Internet.
Consequently, both dating websites and legislators are likely to address these issues.


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