Nicosia v. Amazon.Com, Inc.

834 F.3d 220 (2nd Cir. 2016)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P is an Amazon (D) customer. P used the D's website to purchase 1 Day Diet (One Day Diet) Best Slimming Capsule 60 Pills ('1 Day Diet'), a weight-loss drug containing sibutramine. Sibutramine is a Schedule IV stimulant that was withdrawn from the market in October 2010 by the Food and Drug Administration because its association with cardiovascular risks and strokes outweighed its limited weight loss value. The FDA advised physicians to stop prescribing sibutramine and to advise patients to cease its consumption due to its risks, including 'major adverse cardiovascular events.' P did not know that 1 Day Diet contained sibutramine and he did not have a doctor's prescription. Sibutramine was not listed as an ingredient on D’s website or on the 1 Day Diet packaging, and D sold the product without requiring a prescription. It was only revealed in November 2013 by the FDA that 1 Day Diet contained sibutramine. D has since stopped selling 1 Day Diet but never notified P that 1 Day Diet contained the stimulant or offered to refund his purchases. As of the filing of the complaint in July 2014, D continued to sell other weight loss products identified by the FDA as containing undisclosed amounts of sibutramine. P brought this putative class action below against D, alleging that Amazon had sold and was continuing to sell weight-loss products containing sibutramine to its customers in violation of the CPSA, 15 U.S.C. §§ 2051-89, and state consumer protection laws. P alleged additional claims for breach of implied warranty and unjust enrichment. The complaint sought both damages and an injunction to prohibit D from further sale of products containing sibutramine. D informed the district court that it intended to move to dismiss the complaint on the ground that P was subject to D's mandatory arbitration provision. The district court stayed discovery pending resolution of D's anticipated motion to dismiss. D moved to dismiss the complaint. D did not move to compel arbitration but instead argued that the complaint should be dismissed 'in favor of individual arbitration' for failure to state a claim because P had agreed to arbitration. The motion was granted. The district court relied on the Order Page and the 2012 Conditions of Use as well as D's assertion that P created an Amazon account in 2008 by signing on through the Registration Page, and used that account to make his purchases of 1 Day Diet. The court concluded that P was given reasonable notice of the conditions of use given: (1) the conspicuousness of the hyperlink to the 2012 Conditions of Use on the Order Page; and (2) the fact that P signed up for an Amazon account via the Registration Page in 2008, which required assent to the 2008 Conditions of Use that named King County as the forum for suit but provided that the conditions were subject to change. The court concluded that questions as to the validity of the agreement as a whole had to be submitted to arbitration. P appealed.