accused of false advertising, deceptive marketing

Kelly Holleran Nov. 17, 2010, 2:39pm

Instead of finding love, a Texas man claims he found only deception and fraud through his membership to an online dating website.

Terry Smith, of Fort Worth, has filed a putative class action suit against, alleging the company is guilty of false advertising and of roping in its clients in through lies.

According to the complaint filed Nov. 12 in Jefferson County District Court, Smith accuses the company of sending him enticing e-mails to convince him to renew his membership. In fact, the e-mails were only half-truths and were the result of deceptive marketing, the suit alleges.

Smith's troubles with began in early November 2008 when he initially paid the monthly $39.99 membership fee, the suit states.

When Smith allowed his membership to lapse, he received e-mails, "winks" and other communications from indicating there were potential matches waiting for him in an attempt to lure him back to membership, according to the complaint.

For example, in July 2009, Smith received a picture of an attractive woman attached to an e-mail. In the e-mail, a message informed Smith that the woman had e-mailed him, but he could only discover what she said by renewing his membership.

"Smith decided to re-subscribe in the hope of resuming contact with this woman," the complaint says. "Upon re-subscribing to and logging into his inbox, however, Smith found that there were no new e-mails from the woman, but only the same e-mails they had exchanged in the past."

In another instance, Smith resumed his membership when he received a message saying he had five unread e-mails. When Smith paid the membership fee so he could check the mail, though, he was unable to communicate with any of the senders, he claims.

Other times, Smith would ask women on a date and would get no response. He later discovered that the women had never received his e-mail messages, according to the complaint.

When Smith's subscription was scheduled to end, he would begin receiving e-mails from "stunningly beautiful women about half his age who lived out of state," the suit states. "Whenever Smith attempted to respond to the e-mails before his subscription ended, he received messages that this person had discontinued their membership and/or their profile is 'unavailable.'"

Smith recently ended his subscription for a final time, but has been unable to remove his profile from the site, he claims. Since that time, five different women have attempted to e-mail him, but he has been unable to respond because he is no longer a member of the site, according to the complaint.

Still, Smith refuses to renew his subscription, saying he has already incurred damages.

"As a result of's manufactured e-mails, messages and/or communications, Smith re-subscribed to during July 2009, September 2009 and on or about November 16, 2009 -- each time paying a $39.99 subscription fee," the complaint says.

Smith accuses the site of breach of contract, breach of fiduciary duty, breach of the duty of good faith and fair dealing, violating the Texas Deceptive Trade Practices Act, unjust enrichment and tolling of the statute of limitations.

He says others have also been adversely affected by's advertising.

" advertises that it has 15 million members," his complaint says. ", however, carefully wordsmiths its advertising to avoid disclosing the fact that only 1.4 million of its 'Members' are actually 'Subscribers.' Thus, less than 10 percent of's 15 million Members can actually be reached by another Member."

Members are able to browse profiles of both subscribers and non-subscribers, but only members can receive messages, according to the complaint. Because members aren't sure who is a subscriber and who is a non-subscriber, they are never sure their message was actually received by its intended recipient, the suit states.

"As a result, Subscribers have been (and continue to be) cheated out of millions of dollars of Subscriber fees and time because the vast majority of Members are not reachable, which intentionally and uniformly conceals from Subscribers when they attempt to e-mail or 'wink' a Non-subscriber," the complaint says.

In his complaint, Smith is seeking actual and treble damages, plus injunctive relief, pre- and post-judgment interest, attorneys' fees, costs and other relief the court deems just.

Mitchell A. Toups of Weller, Green, Toups and Terrell in Beaumont; Richard L. Coffman of The Coffman Law Firm in Beaumont; and Norah Hart of Treuhaft and Zakarin in New York, N.Y., will be representing Smith.

The case has been assigned to Judge Bob Wortham, 58th District Court.

Case No. A188-776

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