Hard2Find Accessories, Inc. v. Amazon.com, Inc.
691 F. App'x 406
9th Cir.2017Background
- Hard2Find Accessories, Inc. (H2F) sold third-party products on Amazon; Apple notified Amazon that H2F was selling allegedly counterfeit iPad covers, and Amazon suspended H2F’s seller account and withheld payments.
- H2F sued Amazon and Apple asserting breach of contract, breach of covenant of good faith and fair dealing, breach of fiduciary duty, tortious interference, unjust enrichment, defamation, federal and state antitrust claims, violations of Washington’s Uniform Money Services Act (UMSA), and Washington’s Consumer Protection Act (CPA).
- The district court dismissed H2F’s complaint with prejudice; H2F appealed. The Ninth Circuit reviews Rule 12(b)(6) dismissal de novo.
- The Ninth Circuit affirmed: claims against Apple were barred by Noerr-Pennington protection for petitioning activity (absent a particularized sham allegation); H2F failed to plead a private right under UMSA §330 and so could not predicate a CPA claim on it; breach and good-faith claims against Amazon were inadequately supported by contract language.
- H2F abandoned or failed to challenge several other dismissals on appeal (state and federal antitrust claims, fiduciary duty, unjust enrichment, and Apple defamation), so those issues were treated as waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Apple’s infringement notice to Amazon is actionable or protected petitioning conduct under Noerr-Pennington | Apple’s report was a pretext to suppress H2F’s business; it constituted actionable conduct (e.g., tortious interference/antitrust) | Apple’s notice was petitioning conduct protected by the Petition Clause; Noerr-Pennington bars suit unless the notice was a sham pleaded with particularity | Court: Noerr-Pennington applies; H2F failed to plead a sham with particularity, so claims against Apple barred |
| Whether Washington’s UMSA §330 creates a private right of action against Amazon for withholding remittances | §330 creates a private cause of action for delayed money transmission | §330 does not create a private remedy; legislature’s omission of a §330 cause of action (while providing one in §350) shows no intent to imply one | Court: No private right under §330; dismissal affirmed |
| Whether H2F stated a CPA claim based on the UMSA allegation or Agreement terms | H2F contends Amazon’s withholding and conduct violated CPA, using §330 as predicate and alleging deceptive/unfair contract terms | Without a valid §330 claim and without plausible allegations that Amazon’s Agreement terms were deceptive or unfair, CPA claim fails | Court: CPA claim fails because §330 cannot serve as predicate and Agreement terms weren’t pleaded as deceptive/unfair |
| Whether Amazon breached contractual duties or the implied covenant/good faith | Amazon’s Business Services Agreement and Program Policies imposed duties to investigate, timely remit, and act in good faith | Agreement allowed Amazon discretion to delay remittances (90-day hold plus scheduled remittances); Program Policies did not create enforceable contractual duties | Court: Breach claims dismissed; implied covenant not triggered because alleged contractual duties were not shown |
Key Cases Cited
- Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016) (standard of review for Rule 12(b)(6) dismissal)
- Rock River Commc’ns, Inc. v. Universal Music Grp., Inc., 745 F.3d 343 (9th Cir. 2014) (Noerr-Pennington protects petitioning activity to third parties)
- Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006) (Noerr-Pennington and petitioning protection principles)
- Or. Nat. Res. Council v. Mohla, 944 F.2d 531 (9th Cir. 1991) (sham exception requires particularized pleading)
- Bennett v. Hardy, 784 P.2d 1258 (Wash. 1990) (factors for implying private remedies under Washington law)
- Perez-Crisantos v. State Farm Fire & Cas. Co., 389 P.3d 476 (Wash. 2017) (legislative intent inferred from express remedies)
- Klem v. Wash. Mut. Bank, 295 P.3d 1179 (Wash. 2013) (predicate requirements for CPA claims)
- Stewart v. Chevron Chem. Co., 762 P.2d 1143 (Wash. 1988) (distinguishing contractual terms from noncontractual policies)
- Johnson v. Yousoofian, 930 P.2d 921 (Wash. Ct. App. 1996) (implied covenant of good faith is derivative of contract duties)