Plaintiffs Fight Against Arbitration in Amazon List Price Class Action

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A plaintiff has asked the 9th U.S. Circuit Court of Appeals to review a district court’s decision to enforce an arbitration agreement in a class action lawsuit accusing Amazon.com Inc. of using deceptive list prices.

Plaintiff Allen Wiseley says that he initially filed the Amazon pricing class action lawsuit on behalf of a Class of California consumers, and that under California law, Amazon’s arbitration law is unconscionable. However, Wiseley says that the district court erred by relying on a choice-of-law provision in its Conditions of Use contract, and applied Washington law.

“The court’s reliance was premised on its erroneous holding that there is no difference between California’s and Washington’s unconscionability laws,” Wiseley says. “Because the district court found no difference, it declined to conduct any conflict-of-laws analysis, and applied Washington law without regard for California.”

The district court held that the arbitration clause was enforceable under Washington law. However, Wiseley argues that the district court failed to acknowledge the states’ different standards for unconscionability by not conducting a conflict-of-laws analysis.

Wiseley states that “a proper conflict-of-laws analysis unavoidably results in the application of California law to this case, as Washington law is contrary to fundamental California policies and California has an immeasurably greater interest than Washington in this California-only class action.” He claims that Amazon’s arbitration clause is unenforceable under California law.

“This Court should reverse the decision below and apply California law—not Washington law—in order to revoke the temporary swindler’s license enjoyed by Amazon at the expense of Californians,” Wiseley urges.

Wiseley initially filed the Amazon class action lawsuit in California state court in December 2014, alleging violations of California’s False Advertising Law, Consumer Legal Remedies Act and Unfair Competition Law. He alleges that Amazon misleads consumers by suggesting that the products offered on Amazon.com are less expensive than comparable products on the market.

“In reality, Amazon’s ‘list’ prices are the highest price that a product has ever been sold for by Amazon, regardless of when that price was last available or advertised, or the prices are completely fictitious,” Wiseley alleges.

Amazon subsequently sought to remove the class action lawsuit to federal court, and it was eventually transferred to the U.S. District Court for the Southern District of California.

According to the Amazon class action lawsuit, consumers are not informed about the company’s Conditions of Use until they are close to completing a purchase. The notice is allegedly in a much smaller font than any of the other material terms related to the transaction.

“There is no box to be checked or button to be selected that affirmatively states the customer’s agreement to Amazon’s COU,” Wiseley claims. “Rather the transaction is completed merely by a customer selecting the ‘Place your order’ button.”

According to the Amazon class action lawsuit, the “Place your order” button is located both at the top and the bottom of the “Review your order” page, but the notice of the COU is allegedly not placed near either of these buttons. Therefore, Wiseley alleges that many customers are unaware that they have agreed to Amazon’s COU when they make a purchase.

Wiseley is represented by Jeffrey R. Krinsk, William R. Restis, David J. Harris and Trenton R. Kashima of Finkelstein & Krinsk LLP.

The Amazon List Price Class Action Lawsuit is Wiseley, et al. v. Amazon.com Inc., Case No. 15-56799, in the U.S. Court of Appeals for the Ninth Circuit.