A consumer must tender the purchase price for goods or services in order to have standing to sue for discriminatory practices (Surrey v. Truebeginnings)
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California has tended to be on the flexible side when it comes to the issue of standing. While arguing before one trial court judge in a complex litigation department, I mentioned the lenient standing requirements in California, and the judge interrupted and said, roughly, "I'd go further. I'd say that California essentially has no concept of standing in most instances." Thus, when a Court of Appeal defines standing parameters for a consumer-oriented statute, it is noteworthy.
In addition, there are decision that, though not directly conerning class actions, resolve issues that affect the potential for future class actions. Decisions that define standing are one such category of cases. In Surrey v. Truebeginnings, et al. (November 18, 2008), the Court of Appeal (Fourth Appellate District, Division One) defined standing to sue for violations of the Unruh Civil Rights Act (Civ. Code, § 51, et seq.) and the Gender Tax Repeal Act of 1995 (Civ. Code, § 51.6):
“The critical issue in this appeal is whether someone who presents him or herself to a business with the intent of purchasing its services or products, but becomes aware of that business's practice of charging different amounts for such services or products based on gender and thereafter does not purchase those services or products, is aggrieved by that practice so as to have standing to sue for violations of the Unruh Civil Rights Act (Civ. Code, § 51 et seq. (the Unruh Act)) and the Gender Tax Repeal Act of 1995 (Civ. Code, § 51.6 (the Gender Tax Repeal Act)). (All further statutory references are to the Civil Code.) In a case of first impression in California, we answer this question in the negative and adopt a bright-line rule that a person must tender the purchase price for a business's services or products in order to have standing to sue it for alleged discriminatory practices relating thereto.
(Slip op., at p. 2.) The core facts were easily summarized by the Court of Appeal:
“In November 2003, TrueBeginnings, LLC, began operating an online matchmaking service, True.com (referred to collectively with TrueBeginnings, LLC and its parent company, HDVE, LLC, herein as TrueBeginnings). The service was very successful, but it had a disproportionately high percentage of male patrons; in November 2004, TrueBeginnings sought to rectify this imbalance by offering certain free services to women who joined. In early May 2005, Surrey visited TrueBeginnings' website with the intent of utilizing its services; after discovering the discrepancy in its charges, he did not, however, subscribe to or pay for its services.
(Slip op., at p. 2.)
While I am inclined to agree with the Court's overall reasoning, it pains me to do so in this case. I happen to believe that online dating services deserve tremendous scrutiny as an industry that has the ability (whether exercised or not) to get away with deceptive activities not tolerated in any other business. The unwillingness of people to bring their customary skepticism into the world of online dating services leaves them open to all manner of deception schemes, including the potential for padded profile roles, computer-generated contacts, imposter members and other frauds difficult to detect or prove without unfettered access to the inner workings of the service's computer system. If there is an industry where caveat emptor applies, online dating is it.
