1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 ALAMAZE KING, et al., CASE NO. C24-2009-KKE 8
Plaintiff(s), ORDER GRANTING DEFENDANT’S 9 v. MOTION TO DISMISS
10 AMAZON.COM SERVICES LLC,
11 Defendant(s).
12 Plaintiffs in this consolidated putative class action against Defendant Amazon.com 13 Services LLC (“Amazon”) have subscribed to Amazon’s Prime service, which offers fast, free 14 delivery of certain items sold by Amazon. Dkt. No. 16 ¶ 21. Plaintiffs allege that although they 15 are Prime subscribers, they do not receive the primary Prime benefit—two-day shipping—as often 16 as other Prime subscribers do. Id. ¶ 60. Plaintiffs contend that the reason for the slower service is 17 that, citing driver safety concerns, Amazon has stopped utilizing its network of contractor-operated 18 delivery vans known as delivery service partners (“DSP”) in their zip codes. Plaintiffs allege that, 19 without disclosing this fact to subscribers or prospective subscribers, Amazon relies on the United 20 States Postal Service (“USPS”) or the United Parcel Service (“UPS”) to complete deliveries to 21 households in “Underserved Zones,” which takes longer than deliveries by DSP contractors. Id. 22 ¶¶ 3–4. Plaintiffs filed this suit against Amazon under Washington’s Consumer Protection Act 23 (“CPA”), contending that Amazon’s delivery practices are unfair or deceptive. Id. ¶¶ 147–70. 24 1 Amazon filed a motion to dismiss for failure to state a claim, contending that Plaintiffs 2 have failed to identify an unfair or deceptive practice, and that Plaintiffs have also failed to plead 3 facts that support the causation element of their claims. Dkt. No. 37.1 The Court agrees with 4 Amazon that Plaintiffs’ complaint fails to state a valid CPA claim and will therefore grant the 5 motion to dismiss. 6 I. BACKGROUND2 7 Plaintiffs are individual consumers who live in either Washington, D.C., or Chicago. Dkt. 8 No. 16 ¶¶ 11–16. Plaintiffs subscribed to Prime for years, and some continue to subscribe to this 9 day, but have noticed over the past two years that fewer items are available for two-day shipping 10 (although Prime-eligible). Id. ¶¶ 64–135. And sometimes an item is marked as eligible for two- 11 day shipping until the final checkout page, where the estimated delivery time jumps to four or 12 more days. Id. ¶¶ 66–68, 75, 77, 84–85, 94, 102–03, 111–12, 121, 131. Prime subscribers who
13 live in other neighborhoods receive their items faster than Plaintiffs do. See, e.g., id. ¶ 56. 14 Plaintiffs allege that they initially subscribed to Prime mainly for the convenience of 15 expedited shipping. Dkt. No. 16 ¶¶ 65, 75, 84, 93, 102, 111, 120, 129. According to the complaint, 16 Amazon can “deliver millions of products to its vast network of Prime members in such a short 17 time frame” due to a “complex distribution system” and “heavy reliance” on its DSP network. Id. 18 ¶ 2. Once an item is ordered on Amazon, it is picked, packaged, and labeled at an Amazon 19 warehouse, called a fulfillment center. Id. ¶ 45. The item is then sent to a sortation center, where, 20 depending on its destination zip code, it is either transported to an Amazon delivery center for 21 22
23 1 This order refers to the parties’ briefing by CM/ECF page number.
2 This section assumes the truth of the allegations in Plaintiffs’ complaint, for purposes of resolving the motion to 24 dismiss. 1 delivery to its final destination by a DSP contractor, or to a third-party delivery facility, such as a 2 USPS/UPS facility, for delivery to its final destination. Id. 3 Plaintiffs live in zip codes where, citing driver safety concerns, Amazon “stopped using
4 DSP to deliver its Prime-eligible” products and now relies primarily on USPS/UPS delivery, which 5 Plaintiffs allege is slower. Id. ¶ 3. As a result, in these areas, Plaintiffs allege that two-day delivery 6 is “severely curtailed” and that Amazon cannot offer one-day delivery at all.3 See Dkt. No. 16 ¶¶ 7 4, 46–47, 50–52. 8 Amazon has not publicly acknowledged any zip code exclusions from its DSP network, 9 but Plaintiffs cite the complaint in a lawsuit filed against Amazon by the attorney general for the 10 District of Columbia, which references these exclusions. Dkt. No. 16 ¶ 51. Plaintiffs cite statistics 11 showing that their neighborhoods in the District of Columbia previously received Prime deliveries 12 within two days of purchase at roughly the same or higher rates than other addresses city-wide. 13 Id. ¶ 54. Plaintiffs allege that after changes to Amazon’s DSP services in 2022, they now receive 14 two-day delivery far less often. Id. Plaintiffs allege that if they had known that they would not 15 continue to receive two-day shipping on most Prime-eligible items in Amazon’s catalog, they 16 “would have declined to enroll [in Prime], paid less for membership, and/or spent less time on 17 Amazon’s platform[.]” Id. ¶¶ 72, 81, 90, 99, 108, 117, 126, 135. The complaint does not allege 18 that Plaintiffs never receive two-day shipping on their Amazon orders, but that for them fewer of 19 their items are eligible for two-day shipping or arrive within two days. See id. ¶ 47. 20 Plaintiffs filed a consolidated class-action complaint in March 2025. See Dkt. Nos. 1, 15, 21 16. Plaintiffs bring a CPA claim based on unfair acts or practices, a CPA claim based on deceptive 22 3 Plaintiffs acknowledge that some Underserved Zones are eligible for same-day deliveries, because these deliveries 23 are often made by a fleet of “Amazon Flex” workers. Dkt. No. 16 ¶ 48. Plaintiffs maintain that even if same-day services are “available at times through Amazon Flex,” Amazon nonetheless does not generally “provid[e] Regular Prime Orders in the Two-Day window” in Underserved Zones. Id. 24 1 acts or practices, and a claim for injunctive relief, demanding that the Court enjoin Amazon “from 2 advertising Prime membership as providing free, expedited shipping to consumers in the 3 Underserved Zones and to enjoin Amazon from charging full price for Prime as if this service is
4 provided in these areas, when it is not.” Dkt. No. 16 ¶ 170. The class is defined as all those 5 enrolled in Prime while living in an Underserved Zone within the four years before December 5, 6 2024 (with a subclass for D.C. residents). Id. ¶ 136. 7 Amazon filed a motion to dismiss for failure to state a CPA claim under Federal Rule of 8 Civil Procedure 12(b)(6), arguing that Plaintiffs have failed to identify unfair/deceptive acts or 9 practices and have failed to allege facts supporting causation. Dkt. No. 37. The briefing is 10 complete, the Court has heard oral argument, and the motion to dismiss is now ripe for resolution. 11 II. ANALYSIS 12 A. Legal Standards4
13 In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court 14 examines the complaint to determine whether, if the facts alleged are true, plaintiff has stated “a 15 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible if plaintiff has pleaded 17 “factual content that allows the court to draw the reasonable inference that the defendant is liable 18 for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements, do not suffice” (id.), nor do “allegations that are merely 20 21
22 4 Although the Court is generally confined to reviewing the operative complaint in resolving a motion to dismiss, Amazon requests that the Court take judicial notice of five documents available on its website. Dkt. No. 38. Plaintiffs 23 do not object to the Court’s taking judicial notice of three of the documents (Dkt. No. 42 at 1), and Amazon’s counsel confirmed at oral argument that the other two documents need not be considered in order to resolve its motion. See Dkt. No. 57 at 6. Thus, the Court grants the unopposed portion of Amazon’s request (with respect to Dkt. No. 38-2, 24 38-4, 38-6) and denies the contested portion as moot. 1 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State 2 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 3 If a claim sounds in fraud, it must also satisfy the heightened pleading requirements set
4 forth in Federal Rule of Civil Procedure 9(b). Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 5 1102–05 (9th Cir. 2003). Rule 9(b) requires that parties “state with particularity the circumstances 6 constituting fraud or mistake,” including “‘the who, what, when, where, and how’ of the 7 misconduct charged[.]” Vess, 317 F.3d at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th 8 Cir. 1997)). To satisfy this standard, a plaintiff asserting fraud-based claims “must set forth what 9 is false or misleading about [the defendant’s] statement[s], and why [they are] false.” Becerra v. 10 Dr Pepper/Seven Up, Inc., 945 F.3d 1225, 1228 (9th Cir. 2019) (quoting In re GlenFed, Inc. Sec. 11 Litig., 42 F.3d 1541, 1548 (9th Cir. 1994)). 12 Rule 9(b) applies to [CPA] claims when they allege a specific intent to deceive or a “‘unified fraudulent course of conduct.’” REX – Real Est. Exch. Inc. v. Zillow 13 Inc., No. C21-312, 2021 WL 3930694, at *8 (W.D. Wash. Sep. 2, 2021) (quoting Vess, 317 F.3d at 1105). On the other hand, if “the core of plaintiff’s complaint is 14 that defendant’s conduct has a ‘tendency’ or the ‘capacity to deceive’ consumers,” then Rule 9(b) does not apply. Id. 15 In re Amazon Serv. Fee Litig., No. 2:22-cv-00743-TL, 2024 WL 3460939, at *5 (W.D. Wash. July 16 18, 2024). 17 “If a motion to dismiss is granted, a court should normally grant leave to amend unless it 18 determines that the pleading could not possibly be cured by allegations of other facts.” Chinatown 19 Neighborhood Ass’n v. Harris, 33 F. Supp. 3d 1085, 1093 (N.D. Cal. 2014) (citing Cook, Perkiss 20 & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990)). 21 B. Rule 9(b) Applies to Plaintiffs’ Complaint. 22 Although Plaintiffs contend that the heightened pleading standard of Rule 9(b) does not 23 apply to their complaint, the Court disagrees. The complaint alleges that Amazon “deliberately,” 24 1 “knowing[ly],” and “purposely” engaged in unfair or deceptive conduct. See, e.g., Dkt. No. 16 ¶¶ 2 3 (“Amazon has quietly and deliberately been de-listing ZIP codes and neighborhoods around the 3 country from its DSP service.”), 149 (“Amazon engaged in unfair acts or practices by marketing
4 and selling its Prime memberships to consumers in a manner that purposely obscures the fact that 5 Underserved Zones will not receive the full benefits of Prime membership.”), 160 (“Amazon 6 engaged and engages in deceptive acts or practices by marketing and selling its Prime service … 7 in a manner that purposely misrepresents the nature of the product.”). These types of allegations 8 support an application of Rule 9(b), even though Plaintiffs did not use the word “fraud” in their 9 complaint. See, e.g., Nicholas v. Amazon.com, Inc., 740 F. Supp. 3d 1099, 1104–05 (W.D. Wash. 10 2024) (finding that Rule 9(b) applied to allegations that Amazon “engaged in unfair or deceptive 11 acts or practices … [to] intentionally and knowingly [mislead] Plaintiff”). 12 C. The Complaint Fails to Identify an Unfair or Deceptive Practice With Particularity.
13 Washington’s CPA prohibits “[u]nfair methods of competition and unfair or deceptive acts 14 or practices in the conduct of any trade or commerce[.]” WASH. REV. CODE § 19.86.020. A CPA 15 claim has five elements: “(1) an unfair or deceptive act or practice (2) in trade or commerce (3) 16 that affects the public interest, (4) injury to plaintiff’s business or property, and (5) causation.” 17 Wright v. Lyft, Inc., 406 P.3d 1149, 1153 (Wash. 2017). If one element fails, the CPA claim as a 18 whole fails. See Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 935 P.2d 628, 635 (Wash. 19 Ct. App. 1997) (“All elements must be present; a finding that any element is missing is fatal to [a 20 CPA] claim.”). 21 If the parties’ underlying conduct is undisputed, whether a certain act or practice is “unfair 22 or deceptive” may be decided as a matter of law. Greenberg v. Amazon.com, Inc., 553 P.3d 626,
23 647–49 (Wash. 2024). The CPA does not define “unfair” or “deceptive,” and in enacting the CPA, 24 Washington’s “legislature intended to provide sufficient flexibility to reach unfair or deceptive 1 conduct that inventively evades legislation.” Panag v. Farmers Ins. Co. of Wash., 204 P.3d 885, 2 895 (Wash. 2009). “Given that there is ‘no limit to human inventiveness,’ courts, as well as 3 legislatures, must be able to determine whether an act or practice is unfair or deceptive to fulfill
4 the protective purposes of the CPA.” Klem v. Wash. Mut. Bank, 295 P.3d 1179, 1187 (Wash. 5 2013) (quoting Panag, 204 P.3d at 895). 6 Washington’s legislature explained that the purpose of the CPA “is to complement the 7 body of federal law governing restraints of trade, unfair competition and unfair, deceptive, and 8 fraudulent acts or practices in order to protect the public and foster fair and honest competition.” 9 WASH. REV. CODE § 19.86.920. In furthering this purpose, courts are to “be guided by final 10 decisions of the federal courts and final orders of the federal trade commission” when determining 11 whether an act or practice “restrains or monopolizes trade or commerce or may substantially lessen 12 competition[.]” Id.
13 1. Plaintiffs Have Failed to Allege an Unfair Act or Practice With Particularity. 14 Plaintiffs seek to show that Amazon’s delivery practices are unfair under the “substantial 15 injury” test. Dkt. No. 41 at 13–14. To satisfy this test, a consumer injury (1) “must be substantial”, 16 (2) “must not be outweighed by any countervailing benefits to consumers or competition that the 17 practice produces”, and (3) “must be an injury that consumers themselves could not reasonably 18 have avoided.” Greenberg, 553 P.3d at 639. Plaintiffs allege that their injury (namely Prime 19 subscription fees) was substantial, there is no countervailing benefit to consumers if certain zip 20 codes cannot access two-day delivery, and Plaintiffs could not avoid the exclusion without 21 shipping their items to a different address. Dkt. No. 41 at 13. 22 Amazon argues that Plaintiffs cannot satisfy these elements because (1) Plaintiffs have not
23 been “injured” because the complaint does not identify with particularity Amazon’s promise to 24 provide two-day delivery at a particular frequency, (2) any unfairness of a zip code exclusion is 1 outweighed by the benefit of promoting driver safety, and (3) Plaintiffs could have avoided any 2 “injury” by simply reading the Prime Terms more closely and then discontinuing their subscription 3 if they were unsatisfied. Dkt. No. 44 at 12–13.
4 The Court finds Amazon’s first argument particularly persuasive. Plaintiffs have failed to 5 identify where or when Amazon promises or suggests that Prime membership entitles a subscriber 6 to two-day delivery at a particular frequency, and this failure is fatal to their CPA unfairness claim. 7 The complaint alleges that Amazon “purposely obscures the fact that Underserved Zones will not 8 receive the full benefits of Prime membership” (Dkt. No. 16 ¶ 149 (emphasis added)), but this 9 allegation assumes that Prime members are entitled to two-day delivery at a particular frequency 10 without citing facts that support such an assumption. Similarly, the complaint states that Amazon 11 “advertises” two-day shipping (id. ¶ 152), but does not identify any advertisement that promises 12 two-day shipping at a frequency higher than that received by Plaintiffs or that plausibly gave that
13 impression to Plaintiffs. Instead, the advertisements and screenshots from Amazon’s website 14 quoted in the complaint promise “fast, free delivery” or two-day delivery on “millions of items” 15 (e.g., id. ¶¶ 32–35). Although the complaint alleges that Amazon unfairly failed “to provide the 16 Two-Day delivery it advertises in the Underserved Zones” (id. ¶ 150), Plaintiffs’ counsel 17 acknowledged at oral argument (consistent with the complaint’s allegations) that Plaintiffs did 18 receive two-day delivery on some items and that no Amazon customer receives two-day delivery 19 on every Prime-eligible item. See Dkt. No. 57 at 17–18; see also Dkt. No. 16 ¶ 151 (alleging that 20 Plaintiffs receive “severely curtailed access” to two-day shipping). 21 Plaintiffs’ allegations of unfairness are even less plausible when viewed in conjunction 22 with the disclosures in Prime’s Terms & Conditions, which notify subscribers that “Prime shipping
23 benefits depend upon” multiple factors, including “the shipping address[,]” and that two-day, one- 24 day, or same-day delivery is not available on all deliveries to all addresses in the contiguous United 1 States. See Dkt. No. 38-2 at 2–3, Dkt. No. 38-4. In the absence of any specific allegations to 2 support Plaintiffs’ expectation that they would receive two-day shipping on more items, and 3 because this expectation is not consistent with Amazon’s explicit disclosures in the Prime Terms
4 & Conditions, Plaintiffs have not plausibly alleged that Amazon’s delivery practices are unfair. 5 Haywood v. Amazon.com, Inc., No. 2:22-cv-01094-JHC, 2023 WL 4585362, at *7 (W.D. Wash. 6 July 18, 2023) (finding that Amazon’s “exercising a right that a contract permits and is fully 7 disclosed to the parties in advance is not an unfair or deceptive act or practice”). 8 To the extent that Plaintiffs allege that Amazon’s delivery practices are “immoral, 9 unethical, oppressive, or unscrupulous” because they disproportionately impact low-income 10 communities (Dkt. No. 16 ¶ 151) or impact neighborhoods “predominately populated by people 11 of color” (id. ¶ 56) these allegations fail to save Plaintiffs’ CPA claim. It is true that “a violation 12 of certain statutes, such as the [Washington Law Against Discrimination (“WLAD”)], is a per se
13 unfair or deceptive practice.” E.S. by and through R.S. v. Regence BlueShield, C17-1609-RAJ, 14 2024 WL 1173805, at *6 (W.D. Wash. Mar. 19, 2024). But Plaintiffs do not bring a discrimination 15 claim, nor do they allege in the complaint or argue in their briefing that a disproportionate impact 16 to consumers on the basis of address or income level would violate the WLAD or any other statute. 17 Rather, the complaint alleges that Plaintiffs’ neighborhoods used to receive faster delivery service 18 on a greater number of items than they do now. Dkt. No. 16 ¶¶ 54, 56. Without more, that Amazon 19 may have removed certain zip codes from its DSP network is insufficient to establish the existence 20 of a per se unfair practice under the WLAD, particularly under the heightened Rule 9(b) standard. 21 Accordingly, the Court agrees with Amazon that Plaintiffs’ complaint fails to sufficiently 22 allege an unfair act or practice.
23 24 1 2. Plaintiffs Have Failed to Allege a Deceptive Act or Practice With Particularity. 2 A plaintiff can satisfy the first element of a CPA claim by showing that the act or practice 3 in question “had the capacity to deceive a substantial portion of the public.” Young v. Toyota
4 Motor Sales, U.S.A., 472 P.3d 990, 994 (Wash. 2020) (quoting Panag, 204 P.3d at 894). The 5 “knowing failure to reveal something of material importance is ‘deceptive’ within the CPA.” 6 Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10, 18 (Wash. 2007) 7 (citation modified). 8 Plaintiffs allege that Amazon marketed and sold Prime memberships to Plaintiffs “in a 9 manner that purposely misrepresents the nature of the product” because “Amazon repeatedly 10 represents to consumers in the Underserved Zones that Prime comes with expedited delivery, but 11 in reality … residents there will not receive their deliveries of Prime-eligible goods in the 12 advertised window of One-Day or Two-Day shipping.” Dkt. No. 16 ¶ 160.
13 Amazon contends that Plaintiffs have not “point[ed] to any promise that Two-Day Delivery 14 and the alleged DSP network will be available—or equally available—in all areas.” Dkt. No. 37 15 at 15. Amazon emphasizes that the Prime Terms notify subscribers that “Prime shipping benefits 16 depend upon” multiple factors, including “the shipping address[,]” and that in other parts of the 17 Prime Terms and/or Amazon’s Help Pages, customers are notified that two-day, one-day or same- 18 day delivery is not available on all deliveries to all addresses in the contiguous United States. Id. 19 at 8–11. Thus, because Amazon disclosed that the availability of two-day shipping depends on 20 the shipping address, Amazon argues that it is not deceptive for Amazon to act in accordance with 21 the Prime Terms. Id. at 15. 22 Amazon also emphasizes that Plaintiffs do not allege that two-day shipping is never
23 available at their addresses, but only that it is available less frequently than they expected it would 24 be. Dkt. No. 37 at 17 n.5 (citing Dkt. No. 16 ¶¶ 67, 76–77, 85–86, 94–95, 103–04, 112–13, 121– 1 22, 130–31). Amazon therefore disputes that Prime advertising highlighting two-day shipping is 2 deceptive because Plaintiffs admit that they sometimes receive two-day shipping. Dkt. No. 37 at 3 17. As Amazon does not guarantee that a specific percentage of Prime-eligible deliveries will
4 arrive with two-day, one-day, or same-day shipping—and explicitly discloses that shipping speed 5 depends on shipping address (Dkt. No. 38-2 at 2)—Amazon contends that its conduct is therefore 6 not deceptive. Dkt. No. 37 at 20. And because the Prime Terms & Conditions give Amazon “sole 7 discretion” to change any term of Prime membership, even if Plaintiffs’ addresses were not 8 excluded from DSP deliveries when they originally enrolled but became excluded later on, 9 Amazon contends that such a change would not be deceptive because it was adequately disclosed 10 in the parties’ contract. Id. at 18 (referencing Dkt. No. 38-2 at 3). 11 Parties to a valid contract are bound by its terms even if they choose not to read the terms, 12 and conduct conforming with a valid contract is generally not unfair or deceptive for purposes of
13 a CPA claim. See, e.g., Brotherson v. Prof. Basketball Club, L.L.C., 604 F. Supp. 2d 1276, 1285 14 (W.D. Wash. 2009) (“[A] party who accepts a written offer without reading it nonetheless 15 objectively manifests his or her assent to its terms.”); Mickelson v. Chase Home Fin. LLC, C11- 16 1445MJP, 2012 WL 1301251, at *5 (W.D. Wash. Apr. 16, 2012) (“Only ‘[g]rossly unfair or 17 unconscionable contracts’ where the material terms were ‘hidden in a maze of fine print’ are 18 properly found to be unfair or deceptive.” (quoting State v. Kaiser, 254 P.3d 850, 860 (Wash. Ct. 19 App. 2011))). 20 Plaintiffs do not dispute that Amazon’s Terms & Conditions afford Amazon discretion to 21 change Prime terms at any time, and that they disclose that shipping speed may depend on shipping 22 address, but argue that Amazon’s aggressive marketing of two-day delivery nonetheless creates
23 the “net impression” that “Two-Day Delivery is available in urban areas like the ones where the 24 consumers live.” Dkt. No. 41 at 18–19. But again, as emphasized by Amazon, Plaintiffs’ 1 complaint acknowledges that two-day delivery is available to some degree, even with the DSP 2 exclusions in their neighborhoods as alleged in this action. See, e.g., Dkt. No. 16 ¶ 60. Plaintiffs’ 3 failure to identify any act or practice of Amazon’s that would be likely to mislead a reasonable
4 consumer to expect a certain frequency of two-day delivery undermines the plausibility of a CPA 5 claim for deceptive acts or practices. See Panag, 204 P.3d at 895 (explaining that “[d]eception 6 exists ‘if there is a representation, omission or practice that is likely to mislead’ a reasonable 7 consumer” (quoting Sw. Sunsites, Inc. v. Fed. Trade Comm’n, 785 F.2d 1431, 1435 (9th Cir. 8 1986))). Accordingly, Plaintiffs have failed to plausibly allege that Amazon’s delivery practices 9 are deceptive. 10 D. Plaintiffs Have Not Pleaded Facts to Establish Causation. 11 To prove the causation element of a CPA claim, a “plaintiff must establish that, but for the 12 defendant’s unfair or deceptive practice, the plaintiff would not have suffered an injury.” Indoor
13 Billboard, 170 P.3d at 22. Only injuries to “business or property” are compensable and satisfy the 14 CPA’s injury requirement. Panag, 204 P.3d at 899. Therefore, “damages for mental distress, 15 embarrassment, and inconvenience are not recoverable under the CPA.” Id. 16 As an additional basis to dismiss Plaintiffs’ claims, Amazon argues that Plaintiffs have not 17 adequately pleaded causation, for two reasons: (1) at least some Plaintiffs continue to subscribe to 18 Prime to this day, although they have been aware for years that they get slower delivery than others, 19 and thus it cannot be the unfair or deceptive Prime advertising that has caused them to pay for a 20 Prime membership5; and (2) Plaintiffs failed to allege that any of them viewed the Prime 21 advertising that they contend is unfair or deceptive. Dkt. No. 37 at 21–23. 22 5 This argument assumes that the injury is paying the Prime membership fee. If, as is also suggested in the complaint 23 (e.g., Dkt. No. 16 ¶¶ 59, 90), that Plaintiffs were injured via time wasted searching for Prime-eligible items that could be delivered in two days, the complaint does not allege facts suggesting that this lost time injured their business or property. Such an injury is not compensable under the CPA. See Gragg v. Orange Cap Co., 942 F. Supp. 2d 1111, 24 1 The Court finds both arguments persuasive. That at least some Plaintiffs have continued 2 to renew their Prime memberships even after noticing slower delivery speeds—and in the case of 3 one Plaintiff, even after joining this lawsuit (Dkt. No. 16 ¶ 111)—undercuts Plaintiffs’ injury
4 theory that if the slower delivery speeds had been disclosed, Plaintiffs would not have subscribed 5 to Prime. This conduct undermines Plaintiffs’ suggestion at oral argument that although they paid 6 for a Prime membership, they did not get what they paid for. See Dkt. No. 57 at 25. 7 And second, the Court agrees with Amazon that, in order to satisfy Rule 9(b), Plaintiffs 8 must specifically describe what statements Plaintiffs saw, when and where they saw them, and 9 whether the allegedly unfair and deceptive statements were the reason they chose to subscribe to 10 Prime. Dkt. No. 44 at 15–16. But the Complaint states generally that each of the named Plaintiffs 11 “first purchased a Prime membership for access to Amazon’s advertised Two-Day shipping 12 speeds,” but does not specify which advertisements the Plaintiffs saw, or if these advertisements
13 induced them to subscribe to Prime. Dkt. No. 16 ¶¶ 65, 75, 84, 93, 102, 111, 120, 129. The 14 Complaint provides examples of Amazon’s Two-Day Delivery advertisements without connecting 15 them to Plaintiffs. Id. ¶¶ 28, 29, 32, 33. Absent these particularized facts, the Plaintiffs have not 16 adequately pleaded that Amazon’s conduct is the but-for cause of their injury. 17 For these reasons, the Court finds that Plaintiffs’ complaint fails to state a valid CPA claim. 18 Because its deficiencies may be cured via amendment, the Court will provide leave to amend. 19 20
21 1118–19 (W.D. Wash. 2013) (explaining that “personal” injuries such as invasion of privacy or inconvenience are not the “business or property” injuries recognized by the CPA). 22 Likewise, to the extent the complaint suggests that Amazon’s unfair/deceptive practices caused Plaintiffs to pay more 23 for Prime membership than they would otherwise have (e.g., Dkt. No. 16 ¶ 90), Plaintiffs have not alleged that they had an option to pay a reduced price for Prime membership. This causation theory therefore also fails. See Dkt. No. 44 at 15 (“There is no way for Plaintiffs to pay less for Prime based on their slower delivery speeds because Amazon 24 does not offer lower rates based on slower speeds.”). 1 III. CONCLUSION 2 For these reasons, the Court GRANTS Defendant’s motion to dismiss. Plaintiffs may file 3 an amended class-action complaint no later than April 6, 2026.
4 Dated this 6th day of March, 2026. 5 A 6 Kymberly K. Evanson 7 United States District Judge
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