Match.com Dodges Suit Over Member Numbers

     (CN) - Subscribers of Match.com cannot sue the dating website for unconscionable conduct over the alleged inflation of active member numbers, the 5th Circuit ruled.
     A three-judge panel of the New Orleans-based federal appeals court unanimously agreed with a ruling by a federal judge in Dallas that the subscribers failed to state a claim in an opinion released on October 4.
     The subscribers filed six separate cases in Dallas federal court, which were later consolidated into a putative class action.
     The plaintiffs claimed they were induced to pay $40 in monthly subscription fees for a dating service that allows fake profiles of potential mates, failed to remove inactive or duplicate profiles, and doesn't accurately disclose the size of the reachable, valid member base.
     Each of the lawsuit and the consolidated class action alleged breach of contract, breach of duty of good faith and unconscionable conduct under the Texas Deceptive Trade Practices Act.
     The trial judge dismissed the first two claims; then later dismissed the unconscionable conduct claim with prejudice that resulted in this appeal.
     The plaintiffs argued that regarding the third claim, Match.com "took advantage of their lack of knowledge, ability, experience and/or capacity to a grossly unfair degree."
     Writing for the 5th Circuit panel, U.S. Circuit Judge Edward C. Prado disagreed.
     He concluded the plaintiffs' claim only alleges breaches of contract alone, which renders the Deceptive Trade Practices Act inapplicable.
     "Appellants' complaint alleges conduct that suggests Match did an insufficient job of fulfilling its contract with members by: leaving inactive profiles visible on the site; falsely labeling inactive profiles as recently active; notifying users of romantic matches that were in fact inactive profiles; failing to vet new profiles for authenticity; and failing to remove fake or duplicate profiles," Prado wrote. "Appellants have not alleged 'an act or practice which [took] advantage of [their] lack of knowledge, ability, experience, or capacity ... to a grossly unfair degree.'"
     To uphold the plaintiffs' claims, Prado added, "would convert ever breach of contract into a DTPA claim."
     The court also upheld the lower court's decision to dismiss the unconscionable conduct claim with prejudice because the plaintiff had "fair opportunity" to make their case.
     "Various related actions against Match have been pending since December 2008," Prado wrote. "Multiple rounds of briefing occurred regarding the motions to dismiss in this consolidated action, giving ample opportunity for appellants to present their case, and yet appellants did not request leave to amend until after the district court's dismissal with prejudice on October 17, 2012.
     "Given the length of time these claims have persisted and the multiple opportunities at amendment that have passed, the district court did not abuse its discretion when it dismissed appellants' unconscionability claim with prejudice," Prado concluded.
     Amy Canaday, a spokeswoman for Match.com, said the company is pleased the appeals court affirmed the trial court's dismissal of the case with prejudice.