Grace Sherk, individually and on behalf of all others similarly situated v. Audible, Inc.

Opinion

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4 5 UNITED STATES DISTRICT COURT AT SEATTLE 7 GRACE SHERK, individually and on behalf CASE NO. 25-cv-01137-JHC 8 of all others similarly situated, ORDER RE: DEFENDANT’S MOTION TO 9 Plaintiff, DISMISS PLAINTIFF’S COMPLAINT 10 v. 11 AUDIBLE, INC., 12 Defendant. 13

14 I 16 This matter comes before the Court on Defendant’s Motion to Dismiss Plaintiff’s 17 Complaint. Dkt. # 37. Plaintiff Grace Sherk brings claims for unjust enrichment under New 18 York and New Jersey law individually and on behalf of a putative class of similarly situated 19 individuals. Dkt. # 1. Audible seeks dismissal, contending that Sherk’s complaint should be 20 dismissed under Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim upon which 21 relief can be granted. Dkt. # 37. For the reasons below, the Court GRANTS the motion and 22 DISMISSES the complaint without prejudice. The Court GRANTS Plaintiff leave to amend the 23 complaint. 24 1 II BACKGROUND 2 Audible—a wholly owned subsidiary of Amazon.com, Inc. (Amazon)—provides access 3 to digital audiobooks and other audio content that customers can buy individually or by paying a 4 monthly subscription for an Audible membership. Dkt. # 1 at 1 ¶¶ 2-3.1 Sherk says Audible 5 engaged in “nonconsensual enrollment” by “target[ing] Amazon account holders for enrollment 6 in a subscription to an Audible membership through a process that was not clear to these 7 consumers. Many Amazon account holders, including Plaintiff, had no idea that they were 8 enrolled in a paid membership to Audible or knew of Audible’s relationship to Amazon until 9 they later saw the monthly charges from Audible on their payment method stored with Amazon.” 10 Dkt. # 1 at 1, 3 ¶¶ 2, 14; see Dkt. # 1 at 11-12 ¶¶ 57-59, 65. Sherk further alleges “Audible did 11 not adequately disclose” enrollment in the monthly membership and made it difficult to 12 unsubscribe; she says that Audible continued to charge through multiple payment methods on 13 file with Amazon, even after enrollees tried to unsubscribe. Dkt. # 1 at 3 ¶¶ 15-16, 35. 14 Sherk was enrolled in Audible on or about October 16, 2020. Although she “does not 15 know the details of how she was enrolled in the monthly Audible subscription,” “she knows that 16 she never enrolled in an Audible membership through Audible’s website or app,” “never 17 affirmatively authorized Audible to enroll her in an Audible subscription,” and “never provided 18 to Audible her personal and billing information.” Dkt. # 1 at 10 ¶¶ 48-51. Sherk was charged a 19 monthly fee for about eight months for a total of $48.10. Dkt. # 1 at 10 ¶ 52. Sherk says she 20 never used the subscription service and because Audible failed to provide “clear and conspicuous 21 22

23 1 The factual background derives from Sherk’s Complaint, Dkt. # 1, which the Court accepts as true on a Rule 12(b)(6) motion to dismiss. See Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 24 F.3d 940, 946 (9th Cir. 2005). 1 notice that she had been enrolled in an Audible membership,” she was unaware of the 2 subscription until she had been charged. Dkt. # 1 at 10 ¶¶ 53-55. 3 On March 11, 2025, Sherk filed suit.2 See Dkt. # 1. Sherk alleges Audible wrongfully 4 enriched itself because “[s]ince at least 2018, Audible knew or should have known that 5 Nonconsensual Enrollments were widespread, but Audible did not take any corrective action 6 because such corrective action would negatively impact its subscriptions and revenue.” Dkt. # 1 7 at 8 ¶¶ 36-40. She contends Audible unjustly enriched itself at the expense of Sherk and 8 similarly situated class member under New Jersey and New York law. Dkt. # 1 at 14-15. 9 Audible moves to dismiss the Complaint, contending that it fails to state a claim upon 10 which relief may be granted. Dkt. # 37. After the motion was briefed, Audible submitted a 11 notice of supplemental authority. Dkt. # 40. The Court then ordered supplemental briefing, 12 requesting analysis specific to New Jersey and New York law, which the parties provided. Dkt.

13 ## 41, 44 & 45. 14 III DISCUSSION 15 A. Rule 12(b)(6) 16 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 17 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 18 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 19 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 20 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 21 Twombly, 550 U.S. at 556). Dismissal is proper only if the plaintiff has not alleged a 22 23

2 This matter was filed in the District of New Jersey and was then transferred to this Court. See 24 Dkt. # 16. 1 “cognizable legal theory” or there is an “absence of sufficient facts alleged to support a 2 cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 3 When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

4 the Court construes the complaint in the light most favorable to the nonmoving party. Livid 5 Holdings Ltd., 416 F.3d at 946. The Court must accept all well-pleaded facts as true and draw all 6 reasonable inferences in favor of the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 7 135 F.3d 658, 661 (9th Cir. 1998). But a “‘court need not . . . accept as true allegations that 8 contradict matters properly subject to judicial notice or by exhibit. Nor is the court required to 9 accept as true allegations that are merely conclusory, unwarranted deductions of fact, or 10 unreasonable inferences.’” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 11 (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 12 B. New Jersey & New York Law

13 Sherk brings an independent cause of action for unjust enrichment under New Jersey and 14 New York law on behalf of herself and a putative class. To prevail on a claim for unjust 15 enrichment under New Jersey law, a plaintiff “must demonstrate that [defendant] ‘received a 16 benefit and that retention of that benefit without payment would be unjust.’” Plastic Surgery 17 Ctr., P.A. v. Aetna Life Ins. Co., 967 F.3d 218, 240 (3d Cir. 2020) (quoting Thieme v. Aucoin- 18 Thieme, 227 N.J. 269, 151 A.3d 545, 557 (2016)). Whereas “[t]he basic elements of an unjust 19 enrichment claim in New York require proof that (1) defendant was enriched, (2) at plaintiff's 20 expense, and (3) equity and good conscience militate against permitting defendant to retain what 21 plaintiff is seeking to recover.” Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 306 22 (2d Cir. 2004) (citing Clark v. Daby, 300 A.D.2d 732, 751 N.Y.S.2d 622, 623 (2002)); see also

23 Donachy v. Intrawest U.S. Holdings, Inc., 2012 WL 869007, at *8 (D.N.J. Mar. 14, 2012) (under 24 1 both New Jersey and New York law “a finding of unjust enrichment requires that there be some 2 injustice”).3 3 C. Analysis 4 The Court’s analysis turns on whether the circumstances Sherk alleges, if proved, would 5 show Sherk conferred a benefit upon Audible and Audible’s retention of that benefit is unjust. 6 As the Court reads the parties’ briefing, injustice, or wrongdoing on Audible’s part, could be 7 found (1) after enrollment when Sherk alleges Audible was aware of the “nonconsensual” 8 enrollees but still charged them and (2) during enrollment when the alleged “nonconsensual” 9 enrollment occurred. See Dkt. # 39 at 10. 10 As to the first issue, Sherk argues that there was an unjust enrichment because “Audible 11 knew, or should have known, for years that it was charging consumers for unknown, unwanted, 12 and unused monthly Audible memberships.” Dkt. # 38 at 3; see also Dkt. # 1 at 2. But the only

13 fact Sherk alleges to support this conclusory allegation is that she never used her membership. 14

15 3 New Jersey law seems to possibly require plaintiff to “also show ‘that it expected remuneration from [defendant] at the time it performed or conferred [that] benefit on [defendant] and that the failure of 16 remuneration enriched [defendant] beyond its contractual rights.” Plastic Surgery Ctr., P.A., 967 F.3d at 240. In her supplemental brief, Sherk has identified caselaw that may obviate the need to make this additional allegation. See McLaren v. UPS Store, Inc., 2025 WL 3238934, at *12 (D.N.J. Nov. 20, 2025) 17 (citing Matusow v. Izanec, 2021 WL 3417934, at *23 (N.J. Super. Ct. App. Div. Aug. 5, 2021) (“a party must show either the expectation of remuneration or the conferral of a benefit and, in either circumstance, 18 ‘that the retention of that benefit without payment would be unjust.’”) (emphasis in original)); but see Katz v. Ambit Ne., LLC, 2023 WL 2570147, at *3 (D.N.J. Mar. 20, 2023) (dismissing, in part, because 19 “Plaintiff denies having noticed any relationship with Defendant during the relevant time period, which suggests Plaintiff could not have expected remuneration from Defendant when he paid”). In its 20 supplemental briefing, Audible says Sherk is effectively trying to assert a standalone tort claim rather than quasi-contract claims as required under both New Jersey and, to a lesser extent, New York law. Dkt. # 44 21 at 7-9; see Cafaro v. HMC, 2008 WL 4224801, at *12 (D.N.J. Sept. 8, 2008) (New Jersey “does not recognize unjust enrichment as an independent tort cause of action”); Mandarin Trading Ltd. v. 22 Wildenstein, 16 N.Y.3d 173, 182, 944 N.E.2d 1104 (2011) (dismissing because of a “lack of allegations that would indicate a relationship between the parties, or at least an awareness by [plaintiff] of [defendant]’s existence. Although privity is not required for an unjust enrichment claim, a claim will not 23 be supported if the connection between the parties is too attenuated.”). Because Sherk has not had a chance to respond and the Court has determined dismissal is appropriate regardless, it need not consider 24 the question now. 1 The Court assumes Audible knew this as it seems plausible that Audible would track use of its 2 product. See Iqbal, 556 U.S. at 679 (determining the plausibility threshold is a “context-specific 3 task that requires the reviewing court to draw on its judicial experience and common sense”).

4 But still, without more, Audible’s knowledge of Sherk’s membership use (or lack thereof) does 5 not plausibly give rise to the inference that Audible knew or should have known that Sherk’s 6 membership was unknown and unwanted; let alone, an inference that Audible’s retention of 7 payment for unused services was unjust.4 Dkt. # 1 at 10. The pleadings do not allege Sherk had 8 any problems disenrolling or that Audible continued charging her once they were made aware 9 her membership was unwanted. See Dkt. # 1 at 10-11. 10 There are plenty of lawful (and more plausible) reasons for why a membership may go 11 unused. Nguyen v. Mercer Island Boys Basketball Booster Club, 2023 WL 8449379, at *5 12 (W.D. Wash. Dec. 6, 2023) (“Where the facts alleged are consistent with both lawful and 13 unlawful conduct, they do not raise a plausible inference of liability.”). While all reasonable 14 inferences are drawn in Sherk’s favor, without a factual allegation showing how Audible knew 15 these enrollees were unknown and unwanted, no inference can be drawn from the fact Audible 16 knew memberships were not being used. Donachy, 2012 WL 869007, at *9 (“Where, as here, 17 Plaintiffs have failed to aver allegations sufficient to support the underlying conduct on which 18 the unjust enrichment claim is based, there is no injustice and Plaintiffs’ unjust enrichment claim 19 must be dismissed.”). 20 21

22 4 The Court agrees with Audible that Sherk cannot use a complaint from ongoing litigation in Fed. Trade Comm’n v. Amazon.com, Inc., 735 F. Supp. 3d 1297 (W.D. Wash. 2024), as a factual showing 23 for what Audible knew or should have known, and so to the extent that Sherk relies on the complaint for factual allegations, the Court will disregard them. Dkt. # 39 at 10-11; see Metro. Creditors’ Tr. v. 24 Pricewaterhousecoopers, LLP, 463 F. Supp. 2d 1193, 1198 (E.D. Wash. 2006). 1 As to the second issue, Audible says Sherk’s complaint fails because Sherk does not 2 “allege facts showing that Audible enrolled customers without consent in the first place.” Dkt. # 3 39 at 10. The Court agrees. Sherk alleges that:

4 Audible targeted Amazon account holders for enrollment in a subscription to an Audible membership through a process that was not clear to these consumers. 5 Many Amazon account holders, including Plaintiff, had no idea that they were enrolled in a paid membership to Audible or knew of Audible’s relationship to 6 Amazon until they later saw the monthly charges from Audible on their payment method stored with Amazon . . . Audible did not adequately disclose 7 Nonconsensual Enrollment in a monthly Audible membership. Nonconsensual Enrollees did not receive clear and conspicuous written materials from Audible 8 confirming enrollment or notifying them of monthly charges.

9 Dkt. # 1 at 3. 10 While the Complaint does not specifically allege what this unclear “process” was, based 11 on the online forum posts quoted in the Complaint, it can be inferred that enrollees became 12 members without their knowledge when they signed up for Amazon Prime and other services on 13 Amazon’s website. See Dkt. # 1 at 4-7. But there are no similar allegations specific to Sherk.5 14 See Tingley v. Ferguson, 47 F.4th 1055, 1069 (9th Cir. 2022) (“[A] party ‘must assert [their] own 15 legal rights and interests, and cannot rest [their] claim to relief on the legal rights or interests of 16 third parties’”). 17 Sherk “does not know the details of how she was enrolled in the monthly Audible 18 subscription” nor does she allege to have signed up for Prime or another Amazon service around 19 the time she was enrolled in Audible. Dkt. # 1 at 10. She knows that she never enrolled through 20 21 22

5 Further, Sherk’s alleges Audible made it difficult to unsubscribe and “often” continued to 23 charge enrollees on payment methods on file with Amazon even when enrollees tried to unsubscribe. Dkt. # 1 at 3. But she does not allege that she had trouble disenrolling or that she had any problem of 24 continued charges after disenrollment. See Dkt. # 1 at 10-11. 1 Audible’s website or app.6 She also alleges she “never affirmatively authorized Audible to 2 enroll her,” but even taking this as a factual rather than conclusory statement, without more does 3 not support a plausible inference of unjust enrichment. Sherk does not allege that she did not 4 authorize Amazon to enroll her or, if she did, why that enrollment might still be unjust. See 5 Mandarin Trading Ltd., 16 N.Y.3d at 182 (holding “there are no indicia of an enrichment that 6 was unjust where the pleadings failed to indicate a relationship between the parties that could 7 have caused reliance or inducement”); see also Twombly, 550 U.S. at 557 (“a conclusory 8 allegation of [a necessary underlying fact] at some unidentified point does not supply facts 9 adequate to show illegality”). 10 As Sherk says, she did not need to assert the exact mechanism of how she became a 11 member for her allegations to be plausible, as it seems likely that these facts are only in “the 12 possession and control of the defendant.” Soo Park v. Thompson, 851 F.3d 910, 928 (9th Cir.

13 2017). But Sherk’s reliance on Heck v. Amazon.com to support this proposition ultimately fails. 14 In Heck, this Court found: 15 Plaintiff has pleaded sufficient additional facts about the circumstances by which she became subscribed to Audible and her choice of “FREE No-Rush Shipping” 16 to put Defendants on notice of their particular conduct at issue and render the claims plausible. Plaintiff alleges that she never signed up for Audible, and yet 17 found out that she was subscribed, and her credit card had been charged for four months. 18 2024 WL 248712, at *3-4 (W.D. Wash. Jan. 23, 2024).7 Similar to the plaintiff in Heck, the 19 Sherk alleges she never signed up for Audible and only discovered the membership later. But in 20

21 6 The Court denies Audible’s request for judicial notice. The link to Amazon’s website is a live site that can be changed at any time and does not speak to Sherk’s experience when she was enrolled in Audible in 2020. See Fed. R. Evid. 201(b); cf. Heinz v. Amazon.com Inc., 2024 WL 2091108, at *3 22 (W.D. Wash. May 8, 2024) (taking judicial notice of images capturing Amazon’s conditions of use “as they appeared” on relevant dates of use). 23 7 On this issue, the two other cases Audible cites are inapt. Audible says that “similar conclusory allegations in Viveros and McCarthy were insufficient to survive motions to dismiss.” Dkt. # 37 at 11. 24 1 Heck, plaintiff alleged facts and submitted exhibits showing her purchases on Amazon and 2 opting into an Amazon program that she alleged caused her enrollment in Audible without her 3 knowledge. Sherk’s barebones statement that she “does not know the details of how she was

4 enrolled in the monthly Audible subscription” do not give rise to the same inference of 5 wrongdoing or injustice that might support a claim for unjust enrichment. See Dkt. # 1 at 10; see 6 Donachy, 2012 WL 869007, at *8-9. 7 Sherk’s reading of the caselaw that the pleading standard can be satisfied “simply by 8 alleging that the defendant received and unjustly retained a benefit at the expense of the 9 plaintiffs” is incorrect as it misses a key element—a complaint must be supported by factual 10 allegations that would support a finding for each element of the claim, not just conclusory 11 recitations of the claim inserting the parties names.8 Dkt. # 38 at 15; Twombly, 550 U.S. at 555 12 (“[A] plaintiff’s obligation to provide the ‘grounds’ of [their] ‘entitle[ment] to relief’ requires 13 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 14 will not do.”); Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a 15 16 This mischaracterizes the cases. In Viveros, for the claims Audible points to, the court dismissed because Audible’s disclosures complied with California state law, not because the plaintiff’s complaint contained 17 conclusory allegations. Viveros v. Audible, Inc., 2023 WL 6960281, at *7-8 (W.D. Wash. Oct. 20, 2023). In McCarthy, the court found that the plaintiff failed to state a claim for unjust enrichment because the 18 allegations were insufficient to establish the underlying causes of action for statutory violations of deceptive practices and false advertising, but the court made no finding—or even suggestion—of 19 conclusory allegations in the pleadings. McCarthy v. Amazon.com, Inc., 2023 WL 5793316, at *4 (W.D. Wash. Sept. 7, 2023), aff’d, 2024 WL 4589081 (9th Cir. Oct. 28, 2024). 20 8 Sherk claims this minimal showing would satisfy Federal Rules of Civil Procedure Rule 9(b)’s heightened pleading standard. Dkt. # 38 at 11. Because the complaint does not meet the plausibility 21 standard, the Court need not consider whether Rule 9(b)’s heightened standard applies. Notably, other courts in this District have applied the heightened standard in similar cases. See, e.g., Ferrie v. Woodford 22 Rsch., LLC, 2020 WL 3971343, at *13 (W.D. Wash. July 14, 2020) (finding plaintiff’s “unjust enrichment claim depend[ed] on [their] allegations of intentional concealment of information to establish unjust circumstances; Rule 9(b) therefore applies.”); see also In re Amazon Serv. Fee Litig., 2024 WL 23 3460939, at *5 (W.D. Wash. July 18, 2024), aff’d, No. 24-5176, 2025 WL 2268252 (9th Cir. Aug. 8, 2025) (applying Rule 9(b) where plaintiff alleged defendant “intentionally deceive[d] its customers” 24 “[e]ven though fraud is not a necessary element of the claim”). 1 complaint, they must be supported by factual allegations”). As currently pleaded, it is only “a 2 sheer possibility” that Audible acted unlawfully, and the pleading standard requires more. See 3 || Kwan v. SanMedica Int'l, 854 F.3d 1088, 1096-97 (9th Cir. 2017) (where falsehood was an 4 || essential element of the claim, “the failure to allege specific facts pointing to actual falsehood 5 || constitutes a fatal flaw”). Because the pleadings fail to allege facts to support the claim, the 6 || motion to dismiss must be granted. 7 IV CONCLUSION

9 For all these reasons, the Court GRANTS the motion and DISMISSESS the two claims

10 for unjust enrichment under New Jersey and New York law without prejudice. The Court

GRANTS Plaintiff leave to amend the complaint by April 6, 2026.

Dated this 16th day of March, 2026.

13 14 CTok 4 Chur John H. Chun 15 United States District Judge 16 17 18 19 20 21 22 23 24