503 F.Supp.3d 1
S.D.N.Y.2020Background
- Plaintiff Carol Brodie purchased "Better than Pasta," a konjac-based pasta substitute sold by Green Spot Foods on Amazon; konjac allegedly swells in the digestive tract and can cause choking or intestinal blockage.
- Packaging listed konnyaku/konjac but did not include safety warnings; regulatory bodies have issued bans/warnings for some konjac-containing products.
- Green Spot listed the product on Amazon, used Fulfillment by Amazon (FBA), and was subject to Amazon’s Business Services Agreement (BSA), which grants Amazon broad control over site content and listings.
- Amazon features customer reviews and an A-to-Z Guarantee and designated the product as "Amazon’s Choice"; Brodie alleges Amazon and Green Spot received numerous negative complaints about health effects prior to her injury.
- Brodie was hospitalized after consuming the product and sued Green Spot and Amazon asserting negligence, breach of implied and express warranty, and deceptive practices/false advertising under N.Y. Gen. Bus. Law §§ 349–350; Amazon moved to dismiss several claims.
- Court ruled: denied Amazon’s motion as to negligence and breach of implied warranty; granted dismissal (without prejudice) as to breach of express warranty and GBL §§ 349/350 false advertising/consumer fraud claims (reviews-related allegations dismissed for lack of factual support). Leave to move for leave to amend granted by deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligence — duty and notice | Brodie: Amazon had notice of konjac danger from product labeling and customer complaints and thus owed more than a cursory duty. | Amazon: as a retailer of sealed goods owed only ordinary inspection; latent dangers required expert testing beyond that duty. | Denied dismissal — plaintiff plausibly alleged Amazon knew/should have known (labeling + reviews) and alleged duty/breach sufficient at pleading stage. |
| Breach of implied warranty (merchantability) | Brodie: product was unfit for human consumption; Amazon, as merchant, impliedly warranted merchantability. | Amazon: latent defect discoverable only by testing; no duty to test sealed product. | Denied dismissal — ordinary inspection would reveal konjac on label and complaints put Amazon on notice; claim plausible. |
| Breach of express warranty — Amazon’s Choice & A-to-Z Guarantee | Brodie: Amazon’s Choice and A-to-Z Guarantee amounted to express warranties supporting claim. | Amazon: "Amazon’s Choice" is puffery/opinion; Guarantee is not an actionable warranty or not breached. | Granted dismissal — "Amazon’s Choice" no express warranty; A-to-Z Guarantee could be a warranty but plaintiff did not allege she requested/refused refund, so no breach pleaded. |
| GBL §§ 349/350 false advertising and reviews (including CDA defense) | Brodie: Amazon published/edited advertising, removed negative reviews, and permitted false positive reviews, misleading consumers. | Amazon: did not create/edit seller content; CDA § 230 immunizes platform; review-manipulation allegations are conclusory/pleaded on information-and-belief without supporting facts. | Granted dismissal — CDA bars claims tied to third-party content; review-related allegations insufficiently pleaded. |
Key Cases Cited
- McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir.) (elements of negligence)
- Liriano v. Hobart Corp., 92 N.Y.2d 232 (N.Y.) (manufacturer duty to warn of latent dangers)
- Porrazzo v. Bumble Bee Foods, LLC, 822 F. Supp. 2d 406 (S.D.N.Y.) (retailer duty and sealed product — no duty to test contents)
- Force v. Facebook, Inc., 934 F.3d 53 (2d Cir.) (CDA content-provider standard; broad immunity)
- LeadClick Media, LLC v. FTC, 838 F.3d 158 (2d Cir.) (CDA protects traditional editorial functions)
- Oberdorf v. Amazon.com Inc., 930 F.3d 136 (3d Cir.) (CDA bars platform failure-to-warn claims)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S.) (pleading standard; legal conclusions not accepted)
- Bell Atlantic v. Twombly, 550 U.S. 544 (U.S.) (plausibility pleading standard)