Jane Doe v. Match.com

Filing 7

OPPOSITION to First EX PARTE APPLICATION for Temporary Restraining Order as to prohibiting defendant Match.com from allowing further member contact until such time as an appropriate screening process has been implemented prohibiting known sex offenders from registeri 6 - Opposition to Plaintiff's Ex Parte Application for a Temporary Restraining Order and for Order to Show Cause Re: Preliminary Injunction filed by Defendant Match.com. (Attachments: # 1 Declaration of Sharmistha Dubey, # 2 Declaration of Robert H. Platt)(Laska, Joseph)

1
2
3
4
5
6
7

MANATT, PHELPS & PHILLIPS, LLP
ROBERT H. PLATT (Bar No. 108533)
Email: [e-mail]
JOSEPH E. LASKA (Bar No. 221055)
Email: [e-mail]
11355 West Olympic Boulevard
Los Angeles, California 90064-1614
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
MATCH.COM, LLC,
erroneously sued as Match.com

8
9

UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11
12

JANE DOE, individually, and on
behalf of all others similarly situated,

13
14
15

Plaintiff,
vs.
MATCH.COM,

16

Defendant.

17
18

Case No. CV11-3795 SVW (JEMx)
Hon. Stephen V. Wilson
Filed as Class Action
OPPOSITION TO PLAINTIFF’S EX
PARTE APPLICATION FOR A
TEMPORARY RESTRAINING
ORDER AND FOR ORDER TO
SHOW CAUSE RE: PRELIMINARY
INJUNCTION

20

Filed concurrently with:
1. Declaration of Sharmistha Dubey;
2. Declaration of Robert H. Platt; and
3. Request for Judicial Notice.

21

Action filed:

19

April 13, 2011

22
23
24
25
26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250676.3

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

PRELIMINARY STATEMENT

3

After filing her putative class action complaint (“Complaint”) nearly three

4

weeks ago, Plaintiff Jane Doe (“Plaintiff”) has now filed an “emergency”

5

application asking this Court to shut down the online dating service operated by

6

Defendant Match.com, LLC (“Match”) until Match implements an undefined

7

“screening” process on Match’s millions of members to determine whether they

8

have been previously convicted of sexual offenses. The breadth of the relief sought

9

is astonishing. And yet Plaintiff has not presented the Court with any basis

10
11

whatsoever to grant such extraordinary provisional relief.
First, conspicuously absent from Plaintiff’s papers is any mention of the

12

requirement that she show a likelihood of success on the merits. Plaintiff does not

13

even argue that Match has a duty to screen its members—the core merits issue in

14

this case. No legal authority for the imposition of such a duty is cited—or exists.

15

Furthermore, when Plaintiff registered for the Match service, she agreed to Match’s

16

Terms of Use Agreement (“User Agreement”). The User Agreement clearly and

17

conspicuously states that Match does not screen its members and that members are

18

responsible for their own safety. Accordingly, Plaintiff has no basis for asserting

19

that Match is legally required to screen its members. Match’s announcement

20

several weeks ago that it plans to implement a process to screen its approximately

21

one million U.S. subscribers (i.e., paying members) against the National Sex

22

Offender Registry within the next 60 to 90 days plainly does not mean that Match

23

has conceded that any duty to do so exists and is irrelevant to Plaintiff’s

24

overreaching application.

25

Second, Plaintiff has not shown that she (or any putative class member) is

26

likely to suffer irreparable harm. Plaintiff is no longer a Match subscriber and,

27

therefore, will not be affected by any action that Match takes or does not take. Nor

28

has Plaintiff shown that any class member is imminently threatened with sexual

M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250676.3

1

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION

1

assault as a result of her Match membership, much less that any such assault will be

2

prevented if Match engages in screening. Instead, Plaintiff’s “evidence” on this

3

point consists solely of general statistics about sexual assault in the United States

4

and the unsworn hearsay statement of the proprietor of a business that is engaged in

5

screening employment candidates.

6
7

In short, Plaintiff’s application for emergency relief is wholly unsubstantiated
on both the facts and the law. The Court should deny the application.

8
9

STATEMENT OF FACTS
A.

10
11

The User Agreement Between Plaintiff and Match Expressly States that
Match Does Not Screen Its Subscribers.
Match operates the website located at www.match.com, a service enabling

12

single adults to meet each other online. Before using the Match service, every

13

member (which includes Plaintiff and every putative class member) must first agree

14

to the terms of Match’s User Agreement. (Declaration of Sharmistha Dubey

15

(“Dubey Decl.”) ¶ 5 and Exhibit A.) Section 7 of User Agreement states in

16

uppercase letters and boldface font:

17

YOU UNDERSTAND THAT MATCH.COM DOES
NOT IN ANY WAY SCREEN ITS MEMBERS, NOR
DOES MATCH.COM INQUIRE INTO THE
BACKGROUNDS OF ITS MEMBERS OR
ATTEMPT TO VERIFY THE STATEMENTS OF
ITS MEMBERS.

18
19
20
21

(Dubey Decl., Exhibit A (emphasis in original).)

22

Thus, by assenting to the User Agreement, Plaintiff and the putative class

23

members expressly acknowledged that Match does not screen its members.

24

B.

25

Plaintiff’s Complaint.
Plaintiff filed her Complaint in the Los Angeles County Superior Court on

26

April 13, 2011. Match timely removed the action to this Court on May 4, 2011.

27

(Docket No. 1.)

28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250676.3

2

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION

1

Plaintiff alleges that she was sexually assaulted by a man whom she met

2

using Match’s service, and that this man had been previously convicted of sexual

3

assault. (Compl. ¶¶ 3, 19-20.) Plaintiff further alleges that Match does not screen

4

its members to determine whether they have been previously convicted of sexual

5

offenses. (Id. ¶¶ 2, 4, 5.)

6

Based upon these allegations, Plaintiff asserts a single claim for injunctive

7

relief under Civil Code Section 1770(a)(10) for failure to “institute basic

8

inexpensive screening processes to weed out known registered sex offenders.”

9

(Compl. ¶ 24.) Plaintiff seeks “[a]n injunction prohibiting [Match] from signing up

10

further members until such basic screening is implemented,” plus her attorney’s

11

fees. (Id., Prayer for Relief, p. 7.) She further seeks to certify a class consisting of

12

all female subscribers of Match from August 2010 to the present. (Compl. ¶ 9.) 1

13

C.

14
15

Match Has Announced That It Intends to Begin Screening Subscribers
Against the National Sex Offender Database.
On April 17, 2011, Match announced that it had made a business decision to

16

begin screening its current and future subscribers against the National Sex Offender

17

Database. (Dubey Decl. ¶ 7 and Exhibit B.) Match stated that it expected to be

18

able to implement the screening process within 60 to 90 days. (Id.) Since then,

19

Match has been evaluating the vendors that conduct such screening, as well as

20

examining the feasibility of screening Match’s more than one million current

21

subscribers nationwide. (Dubey Decl. ¶ 7.)

22
23
24
25
The injunction requested in Plaintiff’s application is far broader than the one
requested in her Complaint. (Compare Compl. ¶ 24 (seeking an injunction
“prohibiting [Match] from signing up further members until such basic screening is
implemented”) with App. 2:2-3 (seeking an injunction “prohibiting further member
contact until such time as an appropriate screening process has been implemented”)
(emphasis added).)
1

26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250676.3

3

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION

1

D.

2

Plaintiff and Her Attorney Applauded Match’s Decision to Screen
Subscribers against the National Sex Offender Database—And Then
Changed Their Minds.

3

Following Match’s announcement, Plaintiff and her attorney began a media

4

tour that included appearances on CNN, NBC’s The Today Show, and ABC’s Good

5

Morning America. At that point, Plaintiff revealed her identity as television

6

producer Carole Markin. (Platt Decl., Exhibit 2.) During interviews on April 18-

7

19, 2011, Plaintiff described herself as the “Erin Brockovich of Online Dating.”

8

(Id.) Meanwhile, Plaintiff’s attorney announced that he was “proud and happy to

9

be a part of this bold effort to reduce the risks of further sexual assaults on women.”

10

(Id.)

11

On April 29, 2011, after the media coverage had faded away, Plaintiff’s

12

attorney contacted Match to discuss the steps that Match was going to take to

13

screen subscribers and to offer his (and Plaintiff’s) input. (Platt Decl. ¶ 5.) Match’s

14

counsel informed Plaintiff’s attorney that Match was proceeding as it had

15

announced, and that it did not require any input from Plaintiff or her attorney. (Id.)

16

Plaintiff’s attorney told Match’s attorney for the first time that they did not believe

17

Match should wait 60 to 90 days to implement the screening and that the screening

18

should include local sex offender databases, not just the national registry. (Id.)

19

When Match declined to alter its stated position, Plaintiff threatened a TRO and

20

subsequently filed this application. (Platt Decl. ¶ 5 and Exhibit 3.)

21

ARGUMENT

22

I.
PLAINTIFF HAS NOT REMOTELY SATISFIED ANY OF THE
REQUIREMENTS FOR A TRO OR A PRELIMINARY INJUNCTION.

23
24

As the U.S. Supreme Court has made clear, a plaintiff may not obtain a TRO

25

or a preliminary injunction unless he can establish: “[1] that he is likely to succeed

26

on the merits, [2] that he is likely to suffer irreparable harm in the absence of

27

preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an

28

injunction is in the public interest.” Winter v. Natural Resources Defense Council,

M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250676.3

4

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION

1

Inc., 555 U.S. 7, 24-25 (2008). Plaintiff does not even address—much less attempt

2

to satisfy—any of these requirements.

3

Moreover, a plaintiff’s request for injunctive relief must be “more closely

4

scrutinized” where he seeks a “disfavored” injunction. E.g., Schrier v. University of

5

Colorado, 427 F.3d 1253, 1260-61 (10th Cir. 2005). A “disfavored” injunction is

6

one that (1) disturbs the status quo, (2) is mandatory as opposed to prohibitory, and

7

(3) provides substantially all of the relief that the applicant would obtain after a full

8

trial on the merits. Id.

9

The injunction sought by Plaintiff is clearly disfavored. It seeks to upend—

10

not preserve—the status quo. See Chalk v. U.S. Dist. Ct., 840 F.2d 701, 704 (9th

11

Cir. 1988) (“The basic function of a preliminary injunction is to preserve the status

12

quo pending a determination of the action on the merits.”). That is because the

13

injunction sought by Plaintiff is, at its core, mandatory: it seeks to compel Match to

14

begin conducting background screening immediately, on pain of going out of

15

business. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

16

F.3d 873, 879 (9th Cir. 2009) (a mandatory injunction “orders a responsible party to

17

‘take action,’ . . . ‘is particularly disfavored,’ and is ‘not granted unless extreme or

18

very serious damage will result and [] not issued in doubtful cases . . . .”) (citations

19

omitted). Finally, the relief sought by Plaintiff in her TRO application would

20

provide all of the relief sought in her Complaint—and then some.

21

As shown below, Plaintiff’s application should be denied because she does

22

not address—much less satisfy—any of the four requirements for a TRO or a

23

preliminary injunction, particularly under the heightened standard applicable here.

24

A.

Plaintiff Cannot Demonstrate a Likelihood of Success on the Merits.

25

Plaintiff’s application does not address her likelihood of success on the

26

merits or even acknowledge such a requirement. Nor does it cite to any legal

27

authority for the proposition that Match is required to screen its members. There is

28

none.

M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250676.3

5

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION

1

Numerous state legislatures, including California’s, have considered whether

2

online dating and social networking services should conduct background checks on

3

their members. For example, California State Assembly Bill 1681 (proposed in

4

2005) would have required online dating services either to screen members or to

5

disclose that they do not conduct such screening. (Request for Judicial Notice,

6

Exhibit A.) But this proposal was not enacted by the legislature. (Id., Exhibit B.)

7

To date, not a single state has passed a law mandating screening by online dating

8

services. The only state to pass a law concerning screening is New Jersey, which

9

merely requires that an online dating service disclose whether it performs

10

background checks. See N.J.S.A. § 56:8-171(4)(b) (West 2008).

11
12

In compliance with the New Jersey statute, Section 7 of Match’s User
Agreement states:

13

YOU UNDERSTAND THAT MATCH.COM DOES
NOT IN ANY WAY SCREEN ITS MEMBERS, NOR
DOES MATCH.COM INQUIRE INTO THE
BACKGROUNDS OF ITS MEMBERS OR
ATTEMPT TO VERIFY THE STATEMENTS OF
ITS MEMBERS.

14
15
16
17

(Dubey Decl., Exhibit A (emphasis in original).)

18

Given this disclosure and the absence of any applicable legal authority,

19

Plaintiff has no basis for claiming that Match has a legal duty to conduct screening

20

of any kind on its members. Contrary to Plaintiff’s unsupported assertion, the fact

21

that Match has announced that it will screen subscribers against the National Sex

22

Offender Database does not create any legal duty to conduct screening or constitute

23

any concession of such a duty by Match.

24

B.

25
26

Plaintiff Has Failed to Demonstrate Irreparable Harm in the Absence of
Preliminary Relief.
Irreparable injury is “the single most important prerequisite for the issuance

27

of a preliminary injunction.” Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114

28

(2nd Cir. 2005.) It is not enough to show that irreparable injury is merely possible.

M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250676.3

6

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION

1

Plaintiff must show that such harm is “likely.” Winter, 555 U.S. at 28 (“Issuing a

2

preliminary injunction based only on a possibility of irreparable harm is

3

inconsistent with our characterization of injunctive relief as an extraordinary

4

remedy that may only be awarded upon a clear showing that the plaintiff is entitled

5

to such relief.”).

6

Plaintiff does not come close to satisfying this requirement. Nowhere in

7

Plaintiff’s application—which notably does not contain a declaration from

8

Plaintiff—does she even claim that she will suffer any harm if Match does not

9

implement the screening she seeks. That is because Plaintiff ceased to be a Match

10

subscriber months ago. (Dubey Decl. ¶ 6.) Accordingly, Plaintiff could not

11

possibly suffer any harm if her application were not granted.2

12

Instead, Plaintiff appears to focus on the unnamed putative class members,

13

arguing in her application that “Match.com’s proposal and announcement of

14

instituting sex offender screening within 60-90 days through use of the federal sex

15

offender data bank is insufficient to protect against a known, grave, imminent risk

16

of danger to female members of Match.com who continue to use defendants [sic]

17

online dating site for meeting companions.” (App. at 2:24-3:2.) But no class has

18

been certified. And, even if a class were to be certified, Plaintiff could not

19

represent the class because, as a former Match subscriber, she would not be a

20

member of it. See Bailey v. Patterson, 369 U.S. 31, 32-33 (1962) (litigants “cannot

21

represent a class of whom they are not a part”).
Moreover, Plaintiff offers no evidence of the purported “grave, imminent risk

22
23

of danger to female members of Match.com.” Her threadbare allegations of harm

24

are made “on information and belief.” (App. at 3:13-14 (“On information and

25
For the same reason, Plaintiff lacks standing to maintain this lawsuit, which seeks
only injunctive relief. See Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149
(2009) (to be entitled to injunctive relief, a plaintiff must prove that she is “under
threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must
be actual and imminent”). Plaintiff’s lack of standing constitutes an independent
basis for denying her application.
2

26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300250676.3

7

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION

1

belief, Plaintiffs submit that other sexual predators are currently using this dating

2

site.”).) The only “evidence” submitted by Plaintiff is the declaration of her

3

attorney and an unsworn, double-hearsay email from one Russell Mallette of

4

Catalyst Data Services, LLC, opining that he “feel[s] that the National Sex

5

Offender Database search is inherently inadequate,” and that he “believe[s]” that

6

his company could implement a “more thorough” search “within 5 business days

7

without question.” (Declaration of Mark Webb, Exhibit 2.) Whatever Mr.

8

Mallette’s unsworn hearsay opinion may be evidence of, it is not evidence of

9

irreparable harm to anyone.3

10

C.

11

The Balance of the Equities Tips Entirely in Match’s Favor.
In determining whether to issue preliminary injunctive relief, courts “must

12

balance the competing claims of injury and must consider the effect on each party

13

of the granting or withholding of the requested relief.” Winter, 555 U.S. at 31.

14

Here, the scale is tipped fully to one side. Plaintiff seeks a preliminary injunction

15

“prohibiting defendant Match.com from allowing further member contact until such

16

time as an appropriate screening process has been implemented . . . .” (App. at 2:1-

17

2.) In other words, Plaintiff seeks to shut Match down. Yet there will be no effect

18

on Plaintiff, no longer a Match subscriber, if the requested relief is granted or

19

denied—and she does not assert otherwise.

20

D.

21

Public Policy Favors Denying the Requested Relief.
Courts deciding an application for preliminary injunctive relief must also

22

consider its effect on “the public interest.” Winter, 555 U.S. at 25, 31 (“In

23

exercising their sound discretion, courts of equity should pay particular regard for

24

the public consequences in employing the extraordinary remedy of injunction.”).

25

Here, the public interest strongly favors denying Plaintiff’s application.

26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

Needless to say, if Plaintiff’s counsel has brought this emergency application with
the aim of obtaining employment for his preferred vendor, that would be an abuse
of process of the highest order.
3

300250676.3

8

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION

1

Certainly, the public has an interest in preventing sexual assault arising out of

2

the use of online dating services. But numerous state legislatures have considered

3

the issue and have unanimously determined that requiring companies such as Match

4

to conduct background checks is not the way to accomplish that goal. There is no

5

reason for this Court to substitute its judgment for the judgment of those state

6

legislatures—particularly in the context of a factually and legally baseless

7

application for extraordinary preliminary relief that would shutter a large and

8

successful business.
CONCLUSION

9
10

For the reasons discussed above, Match respectfully requests that this Court

11

deny Plaintiff’s application and respectfully suggests that the Court consider the

12

imposition of appropriate sanctions for the filing of an application so lacking in

13

factual and legal basis.4

14
15

Dated: May 5, 2011

16

MANATT, PHELPS & PHILLIPS, LLP
ROBERT H. PLATT
JOSEPH E. LASKA

17
18

By: /s/ Robert H. Platt
Robert H. Platt
Attorneys for Defendant
MATCH.COM, LLC,
erroneously sued as Match.com

19
20
21
22
23
24
25
26
27
28
M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

See, e.g., 28 U.S.C. § 1927 (“Any attorney . . . who so multiplies the proceedings
in any case unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees . . . .”); Fed. R. Civ. P. 11.

4

300250676.3

9

OPPOSITION TO EX PARTE APPLICATION FOR TRO AND FOR OSC RE: PRELIMINARY INJUNCTION