Amazon Weight Loss Drug Class Action Lawsuit Appeal Filed

The plaintiff in a class action lawsuit accusing Amazon.com of selling dangerous diet drugs has asked an appellate court to revive the case.

In December 2014, plaintiff Dean Nicosia filed the weight loss drug class action lawsuit on behalf of Amazon.com consumers who purchased diet drugs containing sibutramine. Nicosia alleged that Amazon knowingly allowed sibutramine-containing supplements to be sold by third party resellers, placing him and other consumers in danger.

Sibutramine is a weight loss drug was originally marketed by Abbott Laboratories under the brand name Meridia. In 2010 the U.S. Food and Drug Administration issued a safety announcement recommending against the continued prescription and use of sibutramine after studies showed a 16 percent risk of major cardiovascular events including heart attack and stroke.

As a result of the FDA safety warning, Amazon banned the sale of sibutramine-containing products from its website shortly after the FDA announcement that same year.

The Amazon class action lawsuit was dismissed from court in February of 2015 after U.S. District Judge Sandra L. Townes found that Nicosia was bound by the Terms and Conditions on the Amazon site requiring mandatory arbitration.

Nicosia has now brought forth an appeal to the dismissal of the Amazon class action lawsuit, alleging that Amazon is continuing to allow sibutramine-containing supplements in newly listed products on their site and is failing to perform due diligence in ensuring that these supplements are not allowed to be sold on their site.

In his appeal to bring back the Amazon class action lawsuit, Nicosia continues to question his agreement of consenting to Amazon’s mandatory arbitration. He argues that the small font indicating Amazon’s “Conditions of Use” was not sufficient enough to alert consumers of their agreement to arbitration.

Niscosia also asserts that the court viewed the type of clicking to give consent to the terms and conditions incorrectly. The court preciously considered the type of consent a “clickwrap.” In a clickwrap, customers actively click to agree to the terms and conditions. The terms and conditions in a clickwrap are placed directly in front of the user to indicate agreement.

Nicosia believes that Amazon instead used a “browse-wrap” agreement. In this type of agreement, there is a hyperlink to another page that contains the terms and conditions, but the user has to click the link to view them. The consent process is more passive and users are not required to visit the hyperlinked page to agree to the terms and conditions.

Browse-wrap agreements are generally seen as less legally enforceable versus the clickwrap agreements that are more clear in obtaining consent.

Nicosia seeks to require Amazon to contact past buyers of the sibutramine-containing products and wants reasonable measures to be taken to stop Amazon from selling such products. The court did not rule on Amazon’s sale of the products previously, as the class action lawsuit was dismissed and sent to arbitration.

Nicosia is represented by Joseph S. Tusa of Tusa PC, Peter D. St. Phillip Jr. and Scott V. Papp of Lowey Dannenberg Cohen & Hart PC, Gregory Duncan of the Law Offices of Gregory S. Duncan and Timothy G. Blood and Paula M. Roach of Blood Hurst & O’Reardon LLP.

The Amazon Weight Loss Drug Class Action Lawsuit is Nicosia v. Amazon.com Inc., Case No. 15-0423, in the U.S. Court of Appeals for the Second Circuit.