Nicosia v. Amazon.com, Inc.
84 F. Supp. 3d 142
E.D.N.Y2015Background
- Plaintiff Dean Nicosia bought “1 Day Diet” weight-loss pills from a third‑party seller on Amazon in Jan. and Apr. 2013; the product later was found by FDA testing to contain hidden sibutramine. Plaintiff alleges consumer‑protection, unjust enrichment, and implied warranty claims on behalf of a putative class.
- Nicosia had an Amazon account created in 2008 and, at checkout in 2013, saw a conspicuous hyperlink and a notice stating that placing the order meant agreeing to Amazon’s Conditions of Use, which (as of 2012) contained a mandatory arbitration clause and a class‑action waiver.
- Amazon removed listings for the 1 Day Diet product the same day the FDA issued its Public Notification (Nov. 21, 2013). Plaintiff did not seek a return or otherwise attempt dispute resolution with the seller and alleges no physical injury.
- Amazon moved to dismiss under Rule 12(b)(6) asserting the claims must be arbitrated individually under the Conditions of Use; Plaintiff moved for a preliminary injunction seeking (inter alia) a stop‑sale, mandatory packaging, and notice to consumers.
- The Court treated the motion under the Twombly/Iqbal 12(b)(6) standard while considering the posted Terms of Use as documents of which Plaintiff had knowledge, and applied Washington state contract law to formation/notice issues.
- Holding: the court dismissed the action (compelled individual arbitration) because Plaintiff assented to the 2012 Conditions of Use; the preliminary injunction was denied for lack of Article III standing and because the CPSA did not furnish a viable private statutory injunction theory here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff is bound by Amazon’s 2012 Conditions of Use (mandatory arbitration & class waiver) | Nicosia says he did not manifest assent to the 2012 Conditions and thus is not bound | Amazon says the checkout notice + hyperlink and prior account assent put Nicosia on inquiry notice and constituted assent | Held: Nicosia manifested assent (hybrid browse/clickwrap); arbitration clause and waiver govern and require individual arbitration |
| Whether challenges to enforceability (illusoriness; illegality of sale) must be decided by court or arbitrator | Nicosia argues contract is illusory (Amazon can change terms) and sale was illegal (sibutramine) so arbitration clause is unenforceable | Amazon argues FAA requires enforcement; challenges to the contract as a whole must go to arbitrator | Held: Challenges to the contract as a whole (illusory or illegal) are for the arbitrator; court enforces arbitration clause and dismisses |
| Standing to obtain preliminary injunctive relief (individual or class) | Nicosia seeks injunctive relief (packaging, stop sales, notice) and claims CPSA authority | Amazon contends Nicosia lacks standing for prospective relief because listings were removed and he alleges no ongoing injury | Held: Denied — Nicosia lacks standing for injunctive relief (no real/imminent future injury; cannot vindicate class‑wide prospective relief) |
| Whether CPSA (and PPPA) authorizes the requested private statutory injunction | Nicosia argues the product is a dietary supplement and that CPSA/PPPA rules apply and permit private injunctive relief | Amazon contends the CPSA excludes drugs/foods and Plaintiff cannot both characterize the product as a drug and as a consumer product for CPSA purposes | Held: Denied — CPSA/private PPPA relief does not apply here; plaintiff cannot show likelihood of success on CPSA claim |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (scope of well‑pleaded factual allegations)
- AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (FAA preempts state rules that prohibit enforcement of arbitration agreements)
- Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (gateway challenges to the contract as a whole go to arbitrator)
- Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (notice requirement for online browsewrap agreements)
- City of Los Angeles v. Lyons, 461 U.S. 95 (standing for prospective injunctive relief requires real and immediate threat)
- Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 910 F.2d 1049 (district courts may consider preliminary injunctions even when claims are headed to arbitration)
- Wabtec Corp. v. Faiveley Transp. Malmo AB, 525 F.3d 135 (procedural guidance on motion to dismiss vs motion to compel arbitration)