Interesting to note that, in addition to its reply, Match.com filed a motion to dismiss on the basis of a lack of jurisdiction of the New York Federal Court, claiming that the user agreement specifies that any disputes involved the Match.com web site must be litigated in the state of Texas. More upcoming on this case soon.

As most should know who join virtually any dating site including match.com, the world’s largest online dating service, you can put up a profile but you have to pay to play. On match.com, paying to play is to the tune of approximately $20-40 per month, depending upon the length of time you subscribe and the options you choose. But you don’t have to pay to check out the service – and that is obvious instantly when you create a profile. But McGinn believes that match.com bears the responsibility – and fails to deliver – to differentiate between who is a paying subscriber and who is not. As such, a man can pay for membership and write to endless women whom he does not know are non-payment members who cannot reply, causing him wasted time and heartbreak.

“When a subscriber cancels their subscription, their profile continues to appear to be that of an active subscriber, nothing indicates to the viewer their limited access to read e-mails or respond to them… Match derives a benefit from giving members ‘matches’ who can’t reply because the notifications that someone has expressed interest in them induces some non-subscribers to subscribe in some cases.”

So if McGinn didn’t understand the way match.com works, wouldn’t the match.com folks have given him his 40 bits back and avoided a class action lawsuit? Probably… but for people like Mr. McGinn, apparently the deep rooted pain doesn’t end there.

“Match defrauds the consumer of his/her time, labor, and emotional investment… Match’s policy causes humiliation and disappointment for some members of the Class who feel rejected when their e-mails get no reply… causes severe emotional distress and anxiety for some members of the Class, including those who keep writing e-mails to one member after another and never hear back from any because he/she is writing to people who’ve cancelled. Because the writer has no way of knowing this, he or she may experience profound personal anguish, suffering which is easily preventable by Match.”

The next part of the brief does make a point but it misses the mark by a mile. A member is reported as “active” whether they login to cancel an account, deal with a billing issue, or something other than an intent to find a date. Is that deceptive? I’m not sure how anyone can differentiate the reason why someone logged into their account until after the deed is done. Additionally, how many times will a member log in to cancel an account? 23 times per month? There are some legitimate points about raising the activity level on match.com in order to entice membership, but nothing compelling.

Now here is the reason why this firm should have hired me to perform some expert review of their case and complaint, LOL! I observed that when a user merely reads a private email message sent from match.com, the act of viewing the email triggers the user’s online status to “active!” Now that is a significantly misleading and deceptive tactic which other users have already complained about prior – the misleading representation that someone is active or has “logged in” when they have not, in fact, logged in or performed any activity with relation to the service.

Let’s take an example where boy meets girl for the first time and likes her. While he doesn’t want to lose her and appear to be insincere, he still will review his emails from those who reply to his prior love missives but won’t login to start a new connection. Unbeknownst to him and probably most users, match.com will report him as “active” not just be replying to an email that runs through the match.com system, but merely opening an email message that could be an advertisement that he’d like to put in the trash, the likely result of code embedded invisibly in the email. When the girl logs in (or has a friend do so) to check on the sincerity of the boy, he appears to be checking out women every day while insisting that he prefers to see her exclusively. Now this deliberate attempt to mislead non-members into thinking that there are far more active users than actually appear is deceptive and match.com profits from this deceptive practice.

Match.com has been accused of fraudulent conduct before – in 2005 a lawsuit was filed against match.com and Yahoo, alleging that attractive employees were required to go out on a set number of dates with elegible single men. This lawsuit was later dropped. So what is going to happen now in 2009? It’s difficult to say, but if this is litigated, it will provide us with some case law on what is and what isn’t considered a deceptive practice in the shady practice of trying to lead web site visitors to the conclusion that more “action” is happening on a web site than is truly occurring in the hopes of coaxing another membership fee. At the very worst, it will be an exercise in entertaining courtroom fodder meeting reality TV as it will expose the life of the latest forlorn 40-something New York male looking for love in all the wrong places… the New York Southern District Court… and you can download the complaint against match.com here.