Ekin v. Amazon Services, LLC
84 F. Supp. 3d 1172
W.D. Wash.2014Background
- Plaintiff Dr. A. Cemal Ekin sued Amazon as a putative class representative for alleged price-inflation by FBA vendors tied to Prime shipping benefits; class period covers Prime members from Oct. 24, 2007 to Feb. 22, 2011 (pre-arbitration clause).
- Amazon’s Prime Terms & Conditions (T&Cs) and Conditions of Use (COU) were presented as click-to-accept agreements; COU included a binding arbitration clause since August 19, 2011.
- Both Dr. Ekin and interested party Marcia Burke renewed Prime and made numerous purchases after August 2011, each time assenting to COU containing the arbitration clause.
- The arbitration clause covers “any dispute or claim relating in any way to your use of any Amazon Service” and bars class, consolidated, or representative actions; it provides consumer-friendly features (AAA rules, Amazon pays certain fees, remote locations).
- Amazon moved to compel arbitration; the court considered whether (1) a valid arbitration agreement exists and (2) the dispute falls within its scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Amazon’s change-in-terms reservation renders the arbitration clause unenforceable | Reservation to change T&Cs without notice makes the contract illusory/unconscionable | Change clause alone does not make contract illusory; plaintiffs assented to unchanged COU post-August 2011 | Court: change-in-terms language does not by itself invalidate the arbitration clause; clause enforceable |
| Whether plaintiffs provided meaningful assent to the arbitration clause | Initial memberships pre-dated clause; no mutual assent to arbitrate for class claims | Plaintiffs repeatedly accepted COU containing arbitration when renewing/purchasing after Aug. 2011 | Court: plaintiffs assented through clickwrap renewals and purchases; meaningful consent found |
| Whether reference to AAA rules is impermissibly ambiguous | Failure to attach AAA rules renders clause vague and unenforceable | Clause references AAA, provides website/phone for rules; not ambiguous | Court: referencing AAA rules with access info is sufficient; not ambiguous |
| Whether the arbitration clause applies retroactively to pre-August 2011 transactions | Clause should not cover conduct predating its inclusion in COU | Broad "any dispute" language covers past and future transactions; precedent supports retroactivity | Court: dispute (stemming from pre-August 2011 transactions) falls within the clause’s scope; arbitration compelled |
Key Cases Cited
- AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (preempts state rules that broadly invalidate arbitration agreements)
- Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126 (9th Cir.) (two-part test: valid agreement and scope determine compelled arbitration)
- Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (district courts must compel arbitration when FAA requirements met)
- Coneff v. AT&T Corp., 673 F.3d 1155 (9th Cir.) (FAA preemption of state rules invalidating certain arbitration terms)
- Kilgore v. KeyBank, N.A., 718 F.3d 1052 (9th Cir.) (arbitration enforcement principles)
- Pokorny v. Quixtar, Inc., 601 F.3d 987 (9th Cir.) (change-in-terms considered among multiple unconscionability factors)
- Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir.) (employment arbitration found unconscionable based on multiple defects, including change clause)
- Peters v. Amazon Services, LLC, 2 F. Supp. 3d 1165 (W.D. Wash.) (similar Amazon arbitration language held to cover past disputes)
- Levin v. Alms & Assoc., Inc., 634 F.3d 260 (4th Cir.) (broad "any dispute" clauses applied retroactively)
- Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir.) (broad arbitration language applied to pre-clause conduct)