Looking for Love in all the Wrong Places, Turning a Blind Eye
By: Houston Criminal Defense Attorney John Floyd and
Paralegal Billy Sinclair
SexSearch is an “online adult dating service.” It charges a fee to assist its paid members in their search of sexual encounters. An Ohio gentleman identified only as John Doe became a “Gold Member” of SexSearch in October 2005 for a fee of $29.95 per month. John Doe accepted the “Terms and Conditions” of the website which included a “promise” that he was at least 18 years of age.
Jane Roe was also a “Gold Member” of SexSearch in October 2005. She had likewise agreed to the “Terms and Conditions” of the website, attesting that she was at least 18 years of age. In fact, she stated in her “profile” that she was born on June 15, 1987.
John Doe and Jane Roe met online through SexSearch. Jane Roe was apparently a generous spirit. She wanted sexual adventures. That’s why she paid SexSearch the $29.95 Gold Member fee. She apparently seized the opportunity to invite John Doe to her home on November 15, 2005. The Ohio couple engaged in mutually agreeable sex on three occasions after that first invitation.
But at some point in December 2005, for some reason, Jane Roe notified the local police that she was only fourteen years of age and had been sexually involved with the older John Doe. Faced with this serious criminal threat to social order, the local police on December 30, 2005 armored up, rushed to John Doe’s home, surrounded it, and demanded that the criminal menace surrender immediately.
An honest, law-abiding citizen, John Doe surrendered to the authorities. He was handcuffed, thrown into a police vehicle, and hauled off to jail. The police charged him with three counts of engaging in unlawful sexual conduct with a minor. The local news media gave the arrest and criminal accusations prominent coverage. But it didn’t take the local prosecutor long to realize that he or she would have a difficult time convincing a jury that John Doe was a “child predator.” The criminal charges against John were quietly dismissed and records of the entire episode were sealed. See: John Doe v. SexSearch, 2008 U.S. App. LEXIS 26522 (6th Cir. Dec. 30, 2008).
With his reputation ruined, family life in crisis, and employment prospects severely damaged, John Doe filed a civil lawsuit against SexSearch in the local federal district court, alleging fourteen violations under Ohio law that the website was at fault for his sexual relationship with the minor and the harmed he suffered as a result. He named 15 corporate and individual defendants whom he believed were the owners of SexSearch. The federal court pointed out that John Doe’s lawsuit “boil[ed] down to either (a) Defendants failed to discover [that] Jane Roe lied about her age to join the website, or (b) the contract terms are unconscionable.” See: Doe v. SexSearch, 502 F.Supp.2d 719, 724 (N.D. Ohio 2007). The district court dismissed the lawsuit under Fed.R.Civ.P. 12(b)(6) finding that John Doe had failed to state a cause of action under either premise. Id. John Doe appealed to the Sixth Circuit Court of Appeals which upheld the district court’s Rule 12(b)(6) dismissal. The appeals court, however, provided interesting reasons for rejecting each of the John Doe allegations presented in his lawsuit.
Allegation One alleged that SexSearch breached its contract with John Doe by allowing minors to join its membership. Ohio law required John Doe to establish the following four elements to make out a breach of contract claim:
A contract in fact existed.
Plaintiff fulfilled his obligations.
Defendant failed to fulfill his obligations.
Damages resulted from the defendant’s failure to fulfill.
See: Lawrence v. Lorian, 713 N.E.2d 478, 480 (Ohio Ct.App. 1998).
The Sixth Circuit found that a contract between John Doe and SexSearch had in fact formed “when Doe checked a box indicating that he was over eighteen and had read and agreed to SexSearch’s Terms and Conditions and privacy policy.” Id., at LEXIS 6. John Doe alleged that SexSearch breached that contract by permitting a minor to become a paid member and delivering that minor to him for sexual relations. The Sixth Circuit disagreed, pointing out that the Terms and Conditions of the contract provided that SexSearch could not guarantee or assume responsibility for verifying the accuracy of information supplied by other users of the service. That disclaimer, said the Sixth Circuit, insulated SexSearch from a breach of contract claim. Id.
John Doe’s second allegation was premised on the theory that SexSearch had fraudulently represented that all persons using its service were eighteen years of age or older. Doe based this allegation on SexSearch’s written assertion that all persons using its service were eighteen years of age or older. To state a fraud claim under Ohio law, John Doe had to establish:
A representation,
that is material to the transaction at hand,
made falsely, with knowledge of its falsity,
with the intent of misleading another into relying upon it,
justifiable reliance upon the representation or concealment, and
a resulting injury proximately caused by the reliance.
See: Orbit Elecs., Inc. Helm Instrument Co., 855 N.E.2d 91, 100 (Ohio Ct.App. 2006).
The Sixth Circuit rejected the fraud claim, saying:
“The most obvious deficiency comes from the requirement of justifiable reliance upon the representation. As noted, the Terms and Conditions expressly disclaim responsibility for verifying members’ ages. They also state that no ‘information, whether oral or written, obtained by you from SexSearch or through or from [sic] SexSearch shall create any warranty not expressly stated in the TAC.’ Furthermore, having registered for the site himself, Doe knew that SexSearch merely required a user to check a box stating that he or she is at least eighteen, with no corroborating evidence required from the user and no attempt at verification made by SexSearch. As a result, there could be no justifiable reliance on the warning, and thus Count Two does not state a claim for fraudulent representation.” Id., at LEXIS 7-8. [Internal citations omitted].
John Doe charged in his third allegation that SexSearch had negligently caused him emotional distress by failing to remove Jane Roe’s profile from its website. Under Ohio law, John Doe could establish an infliction of emotional distress claim only by showing that he was aware of a real physical danger to himself or another. See: King v. Bogner, 624 N.Ed.2d 364, 367 (Ohio Ct.App. 1993).
John Doe claimed he had been injured by the embarrassment and harm to his social standing and employment prospects. But the Sixth Circuit held that such harm, if any, was insufficient because Doe had not experienced or appreciated “actual physical peril.” Id., at LEXIS 8.
John Doe’s fourth allegation was for “negligent misrepresentation” based on the warning by SexSearch that all its members were adults. Under Ohio law, SexSearch would have been guilty of “negligent misrepresentation” only if it:
supplied false information,
for guidance of others in their business transaction,
causing pecuniary loss to Doe,
while doe justifiably relied upon the information, and
SexSearch failed to exercise reasonable care or competence in obtaining or communication the information.
See: Delman v. City of Cleveland Heights, 534 N.E.2d 835, 835 (Ohio 1989),
Federal courts in Ohio have held that a negligent misrepresentation also requires “a special relationship under which the defendant supplied information to the plaintiff for the latter’s guidance in its business transaction.” See: Ziegler v. Findlay Indus., Inc., 464 F.Supp.2d 733, 758 (N.D. Ohio 2006).
Guided by these legal principles, the Sixth Circuit held that “the information at issue in this case was not supplied to guide others in their business transactions; nor is Doe complaining about any pecuniary losses; nor (as noted) was his reliance justifiable; nor has he alleged any ‘special relationship’ between himself and SexSearch. Therefore he has failed to state a claim for negligent misrepresentation.” Id., at LEXIS 9-10.
The sixth allegation raised by John Doe was based on the same warning about all of SexSearch’s users being eighteen years of age or older but presented as a “breach of warranty.” Ohio law provides that “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” See: Ohio Rev. Code § 1302.26. Ohio courts have found that this statute applies only to the sale of goods, not to services. See: Brown v. Christopher Inn Co., 344 N.E.2d 140 (Ohio Ct. App. 1975)
The Sixth Circuit found that since SexSearch provided a service, not goods, there was no express warranty issue in the John Doe case. Id.
John Doe’s six through ten allegations all charged violations of Ohio’s Consumer Sales Practices Act. Allegation six and seven specifically charged SexSearch with “deceptive trade practices” in violation of Ohio Rev. Code § 1345.02. Ohio courts have interpreted this statute from the consumer’s standpoint, stating that “the basic test is one of fairness; the act need not rise to the level of fraud, negligence, or breach of contract … Furthermore, a deceptive act has the likelihood of inducing a state of mind in the consumer that is not in accord with the facts.” See: Chestnut v. Progressive Cas. Ins. Co., 850 N.E.2d 751, 757 (Ohio Ct. App. 2006).
In rejecting Doe’s deceptive trade practices claim, the Sixth Circuit concluded:
“Here, there was no likelihood that SexSearch’s warning that all users are over eighteen would induce a state of mind in Doe that was not in accord with the facts. He had agreed to the Terms and Conditions, which state that SexSearch is not responsible for verifying users’ ages, and had gone through the registration process himself and thus knew that SexSearch took no steps to check the accuracy of users’ promises that they are eighteen.” Id., at LEXIS 11.
John Doe’s allegations eight through ten charged SexSearch with “unconscionable acts” in violation of Ohio Rev. Code § 1345.03. This statute provides that “no supplier shall commit an unconscionable act or practice in connection with a consumer transaction.” Id. The deciding issue is “whether the supplier required the consumer to enter into a consumer transaction on terms the supplier knew were substantially one-sided in favor of the supplier.” § 1345.03(B)(5). John Doe specifically charged SexSearch with “unconscionable acts” that included the inclusion of a clause limiting damages in the amount of the contract, a clause allowing SexSearch to cancel the contract at any time, and other clauses that were substantially one-sided.
The Sixth Circuit pointed that “limitation-of-liability clauses are viewed critically, but may be freely bargained for in Ohio and will be enforced ‘[a]bsent important public policy concerns, unconscionability, or vague and ambiguous terms.’ A SexSearch gold membership costs $ 29.95 per month. Given the nature of the service, which encourages members to meet in person for sexual encounters, SexSearch’s potential liability is nearly limitless. For example, arrest, diseases of various sorts, and injuries caused by irate family members or others may be the result of such hedonistic sex. When selling such services, then, it is commercially reasonable for SexSearch to limit its liability to the price of the contract. The case that Doe relies on for the proposition that a limitation of liability violates the Ohio Consumer Sales Practices Act is an unpublished consent decree that merely states that the defendants in that case had improperly included a limitation-of-liability clause; it does not suggest that such clauses are always unconscionable. The clause at issue is not unconscionable within the meaning of § 1345.03(A) and so Count Eight does not state a claim for relief.
”SexSearch’s right to cancel, which Doe describes as ‘unilateral,’ is likewise not unconscionable. Members may cancel at any time; they must do so at least three days before the next monthly billing cycle to avoid being charged for the next month, and they will not receive a refund unless unusual circumstances apply. But those conditions hardly amount to a unilateral right to cancel on SexSearch’s behalf. And when SexSearch does cancel a paid membership, it will provide ‘a pro-rata refund for the unexpired period of the cancelled month’s membership by automatic credit.’ Furthermore, SexSearch’s power to cancel memberships is presumably designed to protect members from those who have violated the Terms and Conditions or posted false content. Therefore the right to cancel is not unconscionable within the meaning of § 1345.03(A) and so Count Nine does not state a claim for relief. Count Ten does not specify which clauses are so substantially one-sided as to rise to the level of unconscionability, but a review of the Terms and Conditions does not turn up any candidates, and thus the dismissal of Count Ten should also be affirmed.” Id., at LEXIS 13-14. [Internal citations omitted].
John Doe’s allegations eleven through thirteen alleged a “common-law unconscionability” claim concerning SexSearch’s Terms and Conditions. The Sixth Circuit pointed out that common law has long recognized that this claim is a “defense against enforcement” of a contract, not a basis for recovering monetary damages for any breach of the contract. Id., at LEXIS 15. The appeals court added that “if Doe were seeking a declaratory judgment or reformation of the contract, unconscionability could form the basis of a cause of action. But he is not requesting either of these remedies, nor would either do him any good. While we agree with the district court’s analysis of why Counts Eleven through Thirteen fail to satisfy the two-prong showing of procedural unconscionability and substantive unconscionability, we note that it is unnecessary to analyze these elements here, since the doctrine itself is inapplicable.” Id., at LEXIS 15-16.
The fourteenth, and final, allegation raised by Joe Doe was that SexSearch failed to warn him that a minor might be a member of its service. A “failure to warn” claim under Ohio law requires:
a duty to warn,
a breach of that duty, and
injury proximately resulting from the breach.
See: Freas v. Prater Contsr. Corp., 573 N.E.2d 27, 30 (Ohio 1991).
Ohio courts have held that where the danger is open and obvious, there is no duty to warn. See: Livengood v. ABS Contractors Supply, 710 N.E.2d 770, 772 (Ohio Ct. App. 1998). “Where only one conclusion can be drawn from the established facts, the issue of whether a risk was open and obvious may be decided by the court as a matter of law.” Klauss v. Glassman, 2005 WL 678984 at 3 (Ohio Ct.App. 2005). Ohio courts consider a risk “open and obvious” when its “dangers are within the body of knowledge of the ordinary consumer” and “generally known and recognized by the ordinary consumer.” See: Gawlaski v. Miller Brewing Co., 644 N.E.2d 731, 733 (Ohio Ct. App. 1994).
In John Doe’s case, the Sixth Circuit found “the danger that a member of SexSearch could be a minor is open and obvious. Internet users’ anonymity and potential for false personal representations are well known. Doe was familiar with the registration process and knew that SexSearch did nothing more than asking members to check a box indicating that they are at least eighteen. Furthermore, even if there was a duty to warn, the statement in the Terms and Conditions that SexSearch could not verify members’ information could be seen as a satisfaction of that duty. Therefore, Doe has failed to state a claim for failure to warn.” Id., at LEXIS 17.
John Doe was fortunate that his online encounter with Jane Roe occurred in Ohio. Had the encounter occurred in Harris County, Texas, he probably would have been prosecuted, convicted, and sent to prison. We have warned repeatedly in this blog the extreme dangers and harsh punishments facing adults trying to find underage sex on the Internet. The SexSearch case amply demonstrates that this warning also applies to adults seeking sex with other adults through the Internet. There are serious personal and legal pitfalls involved in this lawful sexual endeavor as there are in the unlawful pursuit of underage sex.
The bottom line is this: the Internet is a dangerous place to pursue sexual gratification, emotional satisfaction, and blissful friendships. It is truly a jungle in the virtual world where perception and reality often collide with disastrous consequences.
By: Houston Criminal Defense Attorney John Floyd and
Paralegal Billy Sinclair