In re Amazon Subscription Services Litigation

Opinion

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 MARK DALY, ELENA NACARINO, Case No. C22-910RSM 10 SUSAN SYLVESTER, and MICHAEL 11 SONNENSCHEIN, individually and on ORDER GRANTING IN PART AND behalf of all others similarly situated, DENYING IN PART DEFENDANT’S 12 MOTION TO CONSOLIDATE AND 13 Plaintiffs, GRANTING DEFENDANT’S MOTION TO SUPPLEMENT 14 v.

15 AMAZON.COM, INC. and AMAZON.COM 16 SERVICES LLC,

17 Defendants.

19 I. INTRODUCTION 20 This matter comes before the Court on Defendants Amazon.com, Inc. and Amazon.com 21 Services LLC (collectively, “Amazon”)’s “Motion to Consolidate Cases.” (Dkt. #25). Amazon 22 has also filed a Motion to Supplement, Dkt. #33, to consolidate a fourth related action, Adams v. 23 Amazon.com, Inc., Case No. 2:23-cv-00913-RSM. (“Adams”). Plaintiffs in the instant case 24 25 (“Daly”), Plaintiff in related case Dorobiala v. Amazon.com, Inc., Case No. 2:22-cv-01600-RSM 26 (“Dorobiala”), and Plaintiff in related case Nicholas v. Amazon.com, Inc., Case No. 2:22-cv- 27 1616-RSM (“Nicholas”) have all filed oppositions to Amazon’s Motion. Daly, Dkt. #26; 28 Dorobiala, Dkt. #11; Nicholas, Dkt. #44. Plaintiffs in Daly, Dorobiala, and Nicholas have also 1 2 all filed oppositions to Amazon’s Motion to Supplement. Daly, Dkt. #35; Dorobiala, Dkt. #14; 3 Nicholas, Dkt. #46. Plaintiff in Adams has not responded. 4 II. BACKGROUND 5 A. Daly Action 6 On September 21, 2022, Plaintiffs filed a First Amended Complaint for a putative class 7 8 action challenging Amazon’s automatic renewal policies and cancellation practices regarding 9 twelve Amazon subscription services, including Amazon Prime, Kindle Unlimited, Amazon 10 Music Unlimited, Amazon Prime Video Channels, Amazon Prime Video, Amazon Prime Book 11 Box, Amazon Kids+, Audible, ComiXology Unlimited, and Amazon Subscription Boxes. Daly, 12 13 Dkt. #14. Plaintiffs allege that Amazon uses “dark pattern” tactics, “luring customers into 14 enrolling” in subscriptions and making it “exceedingly difficult and unnecessarily confusing for 15 consumers to cancel their Amazon subscriptions.” See id. at ¶¶ 1, 7, 26-33, 130-31, 149-51. 16 Plaintiffs Nacarino and Daly specifically encountered issues through an Amazon Prime free trial. 17 Id. at ¶10-11. Plaintiffs allege that they suffered economic injury because of Amazon’s 18 19 cancellation practices. Id. at ¶¶ 130-31, 149-51. Under various California and Oregon statutes, 20 Plaintiffs seek damages, restitution, declaratory relief, injunctive relief, and attorneys’ fees for 21 Amazon’s alleged violations of California’s and Oregon’s Automatic Renewal Laws. Id. at ¶ 9. 22 B. Dorobiala Action 23 On November 9, 2022, the Dorobiala Plaintiff filed a putative Class Action Complaint 24 25 against Amazon challenging its cancellation practices regarding Amazon Prime. Daly, Dkt. #26- 26 2 at ¶¶ 5-6. This Plaintiff alleges that Amazon’s “dark patterns” tactics caused him to be 27 “confused by the process” of cancelling, making it difficult for him to cancel at all. Id. at ¶¶ 5- 28 6, 56. Specifically, the Dorobiala Plaintiff raises claims against Amazon’s allegedly difficult 1 2 and deceptive cancellation process. Id. Plaintiff asserts these claims pursuant to the Washington 3 Consumer Protection Act (“WCPA”). Id. at 50-58. 4 C. Nicholas Action 5 On August 25, 2022, the Nicholas Plaintiff filed a putative Class Action Complaint 6 against Amazon in the Circuit Court of Cook County, Illinois, which was removed by Amazon 7 8 to the U.S District Court for the Norther District of Illinois on September 26, 2022. Daly, Dkt. 9 #26-1. The case was transferred to this Court on November 10, 2022. Id. This Plaintiff also 10 alleges that Amazon’s cancellation process is “overly difficult and time-consuming,” using “dark 11 patterns” to induce customers to sign up for subscriptions but making cancellation difficult 12 13 through a “labyrinth of menus and icons” to frustrate the process. Id. at 1-4, 16-31, 32-36. 14 Plaintiff alleges injury because of these alleged unlawful practices and asserts these claims as 15 violations of the WCPA, the Illinois Automatic Contract Renewal Act (“IACRA”), the Illinois 16 Consumer Fraud and Deceptive Business Practices Act (“ICFA”), and common law claims for 17 fraud and unjust enrichment. Id. at ¶¶ 32-43. However, Plaintiff specifically asserts these claims 18 19 due to Amazon’s cancellation practices concerning its “Subscribe & Save” subscription program. 20 Id. at ¶¶ 1-4, 16-31, 17-30, 43. 21 D. Adams Action 22 On February 27, 2023, the Adams Plaintiff filed a putative Class Action Complaint in the 23 U.S. District Court for the Western District of Virginia. Daly, Dkt. #34-1. On June 14, 2023, 24 25 the Virginia District Court ordered this case transferred to this Court, placing emphasis on its 26 similarities to pending actions here: 27 Most notably, three similar and related cases—one of which was filed by plaintiff’s 28 lawyers—are already pending in the Western District of Washington before the same district judge. As the district court noted in Gonzalez v. Homefix Custom 1 Remodeling, Corp., it is “generally in the interest of justice if a decision not to 2 transfer would lead to courts rending inconsistent judgment on the same issue.” 2023 WL 3115585 at *6 (E.D. Va. Apr. 26, 2023) (citing Cont’l Grain Co. v. Barge 3 FBL-585, 364 U.S. 19, 26 (1960) (simultaneous similar cases in different districts “leads to the wastefulness of time, energy and money that 1404 was designed to 4 prevent.”). 5 Adams, Dkt. # 22 at 3. 6 As the Virginia District Court noted, Plaintiffs’ counsel also aided in filing this Adams 7 8 action. Id. This Complaint is very similar to the Daly Complaint, containing similar snapshots 9 and arguments. Daly, Dkt. #34-1; Dkt. #14. As Amazon mentions, the first paragraphs of these 10 Complaints are nearly identical, and the Adams Complaint also alleges violations concerning the 11 same twelve Amazon subscription services as Daly. Id.; Dkt. #14. The Adams Plaintiff alleges 12 13 that Amazon uses “dark patterns” to “lure consumers into enrolling” in subscriptions and makes 14 it deceptively difficult for consumers to cancel their trials or subscriptions. Id. at ¶¶ 34-43, 59, 15 75, 87, 124. The Adams Plaintiff alleges injury because she did not know she was enrolled in an 16 automatic renewal program and struggled to cancel this subscription, resulting in unauthorized 17 charges. Id. at ¶¶ 84, 92, 95. This Plaintiff asserts these claims for violations of Virginia’s 18 19 Consumer Protection Act (“VCPA”) and Virginia Automatic Renewal Law (“Virginia ARL”). 20 Id. at 104. 21 E. Court Order in Daly 22 On October 14, 2022, Amazon filed a Motion to Dismiss the Daly Complaint. Dkt. #20. 23 On February 26, 2024, this Court granted in part and denied in part Amazon’s Motion. Dkt. #37. 24 25 The Court dismissed with prejudice Plaintiffs’ California Consumer Legal Remedies Act claims 26 pertaining to Amazon subscription services not specified in Plaintiffs’ Pre-suit Notice Letter 27 (ComiXology, Blink, Prime Video Channels, and BookBox). Id. The Court also concluded that 28 Amazon’s automatic renewal terms met the requirements of Oregon’s and California’s ARLs. 1 2 Id. However, the Court ultimately concluded that Plaintiffs had made a prima facie showing of 3 alleged violations concerning Amazon’s cancellation processes. Id. 4 III. ANALYSIS 5 A. Legal Standard 6 Federal Rule of Civil Procedure 42(a) provides this Court with broad discretion to 7 8 consolidate cases that involve common questions of law and fact. See Pierce v. County of 9 Orange, 526 F.3d 1190, 1203 (9th Cir. 2008). In determining whether consolidation is warranted, 10 courts look to the existence of common questions of law or fact and weigh the interests of judicial 11 economy against any delay or prejudice that might result. See In re Adams Apple, Inc., 829 F.2d 12 13 1484, 1487 (9th Cir. 1987). The moving party has the burden of showing that consolidation is 14 appropriate. EEOC v. Lowe’s, 2008 U.S. Dist. LEXIS 135184 at *6 (W.D. Wash. Aug. 14, 2008). 15 B. Motion to Consolidate Nicholas and Dorobiala 16 First, Amazon seeks to consolidate with Nicholas. Daly, Dkt. #25. Both cases involve 17 putative class actions concerning Amazon’s alleged “dark patterns,” automatic renewal 18 19 subscription services, and frustrating cancelation practices. Both Daly and Nicholas also include 20 common claims for fraud and unjust enrichment. Thus, there is an overlap of law and the general 21 type of facts one would expect in this type of case. However, a close review of the pleadings 22 reveals a distinction. Plaintiffs in the instant case allege that Amazon violated Oregon’s and 23 California’s ARLs through misrepresentations and difficult cancellation processes with 24 25 Amazon’s subscription offerings such as Prime, see Daly, Dkt. #14; Plaintiff in Nicholas alleges 26 violations of WCPA, IACRA, ICFA through misrepresentations and difficult cancellation 27 processes regarding Amazon’s “Subscribe & Save” products. See Dkt. #26-1. In this Court’s 28 previous Order, Dkt. #37, the Court relied on Plaintiff’s prima facie showing that the Amazon 1 2 Checkout Pages, Acknowledgment Emails, and cancellation processes were similar regarding 3 Amazon Automatic Renewal subscription offerings like Amazon Prime, Audible, Kindle 4 Unlimited, etc. Upon review of the Complaint in Nicholas, the “Subscribe & Save” products are 5 different from these distinctive Amazon subscriptions. These are different products and issues. 6 Amazon is huge; it may get accused of violating similar laws many times a year, in many different 7 8 ways, and not all of these actions can or should be consolidated. It is not clear that judicial 9 economy would be served by consolidating Nicholas and Daly. The Court finds that Amazon 10 has failed to meet its burden of demonstrating enough common questions of fact and orders that 11 Amazon’s Motion to Consolidate with Nicholas to the instant case is DENIED. 12 13 Second, the Court finds that Amazon has met its burden of demonstrating enough 14 common questions of fact pertaining to Dorobiala. Plaintiffs argue that consolidating Dorobiala 15 with this case would be premature. Dkt. #30 at 5. This argument is now moot, however, due to 16 the Court’s recent Order on Amazon’s Motion to Dismiss. Dkt. #37. Plaintiffs also argue that 17 consolidation is improper because the facts and laws are different and would result in prejudice 18 19 and unnecessary delay. Dkt. #30 at 6-10. Plaintiffs argue that the Dorobiala Plaintiff “asserts 20 garden variety consumer protections claims for deceptive conduct under Washington law, 21 seeking actual damages that would undoubtedly be lesser than the statutory damages available 22 under Oregon law, and the plaintiff does not seek equitable restitution.” Id. at 7. Damages, 23 however, are not controlling here, and Plaintiffs cite no law otherwise. In Dorobiala, as opposed 24 25 to Nicholas, the Plaintiff asserts damages due to Amazon’s deceptive cancellation practices 26 related to Amazon’s Prime automatic renewal subscription. The cause of action, facts, and 27 allegations are similar, if not identical, to those made by Plaintiffs in Daly. Furthermore, 28 Plaintiffs’ argument that Daly differs from Dorobiala due to Plaintiffs’ allegations resulting from 1 2 exposure to the Checkout Page fails as well. Dkt. #30 at 8. As this Court concluded in its 3 previous Order, Plaintiffs’ argument that Amazon’s Checkout Page disclosures violated 4 Oregon’s and California’s ARLs failed, but Plaintiffs’ claims concerning Amazon’s disruptive 5 or difficult cancellation policies prevailed, including practices and policies related to Amazon 6 Prime. Dkt. #37. These Amazon Prime cancellation practices are the same alleged violations in 7 8 Dorobiala. The Court finds that consolidating these two cases that are factually similar, 9 containing overlapping claims and products, will not increase the complexity of the case or 10 prejudice the involved parties, and it will benefit the judicial economy of all the cases. Therefore, 11 the Court finds that Amazon has met its burden of demonstrating enough common questions of 12 13 fact and orders Amazon’s Motion to Consolidate with Dorobiala is GRANTED. 14 C. Supplemental Motion to Consolidate Adams 15 Lastly, Amazon seeks to Consolidate with Adams. Dkt. #33. Plaintiff in Adams asserts 16 that Amazon failed to comply with Virginia’s ARL. Dkt. #34-1. Plaintiffs in the instant case 17 argue this is dissimilar because the Daly Plaintiffs assert violations of Oregon’s and California’s 18 19 ARL, not Virginia’s. Dkt. #35 at 2. However, Virginia’s ARL is practically identical to both 20 Oregon’s and California’s ARLs. Va. Code §§ 59.1-207.45, 59.1-204.46; Cal. Bus. & Prof. Code 21 §§ 17601, 17602; ORS §§ 646A.293, 646A.295. On further review, the Court finds no case law 22 pertaining to Virginia ARL in disagreement with this Court’s analysis of ARLs in its previous 23 order, Dkt. #37. Both Adams and Daly allege violations of ARLs pertaining to Amazon 24 25 subscriptions, including Prime. Adams, Daly, and Dorobiala all allege frustrations in attempting 26 to cancel Amazon subscriptions and bring claims based on these similar cancellation practices. 27 In fact, Plaintiffs in Daly relied on these substantial similarities in refuting Amazon’s dismissal 28 arguments. See Dkt. #22 at 4, 7, 10-11, 13, 23. Again, due to the Court’s previous Order, Dkt. 1 2 #37, Plaintiffs’ arguments of prematurity are now moot. Furthermore, both Daly and Adams are 3 filed by the same attorney, containing substantially similar arguments, products, and complaints 4 that are brought pursuant to substantially identical ARLs. Plaintiffs do not note a single, relevant 5 distinction between these laws. See Dkt. #35 at 2-3. The Court finds that consolidating these 6 cases that are factually similar, containing overlapping claims and products, and almost identical 7 8 statutes will not increase the complexity of the case or prejudice the involved parties, and it will 9 benefit the judicial economy of all the cases. Therefore, the Court finds that Amazon has met its 10 burden of demonstrating enough common questions of fact and orders Amazon’s Motion to 11 Supplement to consolidate with Adams is GRANTED. 12 13 IV. CONCLUSION 14 Having considered Defendant Amazon’s Motions, Plaintiffs’ Opposition, and the 15 remainder of the record, the Court FINDS and ORDERS: 16 1. Defendant Amazon’s “Motion to Consolidate Cases,” Dkt. #25, is DENIED IN 17 PART. Nicholas v. Amazon.com, Inc., Case No. 2:22-cv-1616-RSM, shall not be 18 19 consolidated with the instant case. 20 2. Defendant Amazon’s “Motion to Consolidate Cases,” Dkt. #25, is GRANTED IN 21 PART. Related case Dorobiala v. Amazon.com, Inc., Case No. 2:22-cv-01600-RSM, 22 shall be consolidated under Case No. 2:22-cv-00910-RSM. The case schedule for 23 Case No. 2:22-cv-00910-RSM shall govern. 24 25 3. Defendant Amazon’s “Motion to Supplement Pending Motion to Consolidate to Add 26 Fourth Related Action,” Dkt. #33, is GRANTED. The related case Adams v. 27 Amazon.com, Inc., Case No. 2:23-cv-00913-RSM, shall be consolidated under Case 28 No. 2:22-cv-00910-RSM. The case schedule for Case No. 2:22-cv-00910-RSM shall 1 2 govern. 3 4. Plaintiffs must file a consolidated complaint consistent with this Court’s previous 4 Order, Dkt. #37, within thirty (30) days of the date of this Order. Defendants have 5 forty-five (45) days thereafter to file an answer or a motion challenging the 6 consolidated complaint. 7 8 5. The Clerk is directed to amend the caption of the consolidated action to reflect In re 9 Amazon Subscription Services Litigation, Case No. 2:22-cv-00910-RSM (W.D. 10 Wash.). 11

12 13 DATED this 28th day of February, 2024. 14 15 A 16 17 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 18

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