Dismissal of Class Action Against Amazon Affirmed in the Eleventh Circuit

In this putative class action, plaintiffs sought to recover from Amazon for its decision to terminate its Rapid Delivery service for Amazon Prime members at the beginning of the COVID pandemic.  The District Court ruled that Amazon had no duty to provide the service and dismissed the claims with prejudice.  In Marquez v. Amazon.Com, Inc., the Eleventh Circuit affirmed the dismissal of the complaint.

At the heart of the case was the beating black heart of consumer contracts: terms of service (ToS).  In the case of Amazon, the ToS involve some bootstrapping, because Prime customers agree that by agreeing to the Prime ToS, they also all of the "terms, conditions, limitations and requirements" that can be found in a list of hyperlinks.  In addition, Amazon reserved to itself the right to change its ToS, and continued use of the service constituted acceptance of the new terms.

The District Court granted Amazon's motion to dismiss, finding that plaintiffs had failed to allege that Amazon had a duty to provide unqualified rapid delivery service.   Applying Washington state law, the Eleventh Circuit took a different path.  It assumed that Amazon made a contractual promise to provide rapid delivery service. Even if that is so, however, Amazon retained considerable discretion to suspend that service, and the ToS provided that all Amazon services were provided on an "as available" basis.   The COVID epidemic required that Amazon transfer its resources elsewhere, and thus it could rightfully claim that rapid delivery services were not "available." 

Amazon's ability to exercise broad discretion in the provision of services does not render its promises illusory.  Plaintiffs still received benefits from the Prime memberships.  Nor did the exercise of such discretion render the contract unconscionable.  In order to prove procedural unconscionability plaintiffs had to show that: the contract was one of adhesion, plaintiffs had no reasonable opportunity to understand the terms, and key provisions were hidden "in a maze of fine print."  The Court found that plaintiffs had alleged facts sufficient to satisfy only the first prong.  The terms were not substantively  unconscionable, because Washington's standard for substantive unconscionability requires that terms be "monstrously harsh" or "shock the conscience."  Amazon had a lot of discretion, but plaintiffs could cancel their memberships at any time.  Hardly monstrous.

The district court found that there could be no breach of the duty of good faith and fair dealing because Amazon had no contractual obligation to provide rapid delivery service.  The Eleventh Circuit found that there was a contractual obligation, but the contract gave Amazon extremely broad discretion.  Given the breadth of the discretion, plaintiffs could not argue that Amazon exercised its discretion in bad faith. 

After dispensing with plaintiffs' statutory claims, the Court turned to unjust enrichment.  Here, plaintiffs incorporated their breach of contract claim into their unjust enrichment claim.  While parties can claim both breach of contract and unjust enrichment in the alternative, the Court found that plaintiffs had not done so here.  Given that this dismissal amounted to a basic pleading error, dismissal of the unjust enrichment claim with prejudice seems a bit harsh, but it probably doesn't matter.  This lawsuit was doomed.

Both the District Court and the Eleventh Circuit opinions evidenced some hostility to plaintiffs who were upset that they were not receiving their super-rapid deliveries of Tiger King t-shirts, sour dough bread makers, and other fripperies designed to keep the economically comfortable amused during the pandemic.  Amazon was scrambling to make important deliveries of basic foodstuffs to people who could not leave their homes in a pandemic.  It's just a shame that the Court used the occasion to write a very broad defense of some pretty terrible uses of terms of service.

I probably shouldn't reference Karl Marx twice in one week on this blog, but something that he and Engels wrote in The German Ideology in 1845 strikes me as pertinent here.  They argued that the ideas of the ruling class, in any age, are the ruling ideas applied to all of society, even though they serve only the interests of the ruling class.  The courts in this case could have said that Amazon had discretion, and it exercised that discretion appropriately in this situation.  Instead, they said that Amazon can do whatever it wants and there's nothing Prime subscribers can do about it because the subscribers were "on notice" through hyperlinks that linked to other hyperlinks that provided that Amazon could change its terms with or without notice.  Okay, I concede that Marx's concept of class doesn't map well onto our 21st-century society.  However, only ideology, German or otherwise, explains how courts could think that treating as binding provisions, heaped up in hyperlink after hyperlink, has anything to do with knowing consent to contractual terms.