Plaintiff Ekin (“Dr. Ekin” or “Plaintiff”) · 2014. 2. 24. · Amazon promised Dr. Ekin, like all Prime Program Members, free shipping on his Prime-Eligible purchases, and

COMPLAINT – CLASS ACTION – 1 [Case No. 2:14-cv-00244]

SIRIANNI YOUTZ SPOONEMORE HAMBURGER

999 THIRD AVENUE, SUITE 3650 SEATTLE, WASHINGTON 98104

TEL. (206) 223-0303 FAX (206) 223-0246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DR. A. CEMAL EKIN, individually and on behalf of similarly situated individuals,

Plaintiff,

v.

AMAZON SERVICES LLC, a Nevada limited liability company,

Defendant.

NO. 2:14-cv-00244 COMPLAINT – CLASS ACTION JURY DEMAND

I. PARTIES

1.1 Plaintiff Ekin. A. Cemal Ekin, Ph.D. (“Dr. Ekin” or “Plaintiff”) is a

resident of the state of Rhode Island. Dr. Ekin, individually and on behalf of a class of

persons and/or entities similarly situated, brings this action for damages and such

other relief as may be available against Defendant.

1.2 Defendant Amazon. Amazon Services LLC (“Amazon” or “Defendant”)

is a Nevada limited liability company headquartered in Seattle, Washington. It, and

Amazon.com and affiliates, form the world’s largest online retailer.

II. JURISDICTION AND VENUE

2.1 Jurisdiction. This Court has subject matter jurisdiction by virtue of

diversity of citizenship. 28 U.S.C. 1332. Plaintiff is a citizen and resident of Rhode

Island. Defendant is a Nevada limited liability company headquartered in the state of

Case 2:14-cv-00244 Document 1 Filed 02/19/14 Page 1 of 9




TEL. (206) 223-0303 FAX (206) 223-0246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Washington. It is wholly owned by Amazon.com, Inc., a Delaware corporation

headquartered in the state of Washington. The amount in controversy exceeds $75,000

exclusive of interest and costs.

2.2 Venue. Under the Terms and Conditions of Plaintiff’s and each proposed

class member’s Amazon Prime Program membership agreement, which incorporates

Amazon’s Conditions of Use agreement:

Any dispute … in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in any state or federal court in King County, Washington…. [That court shall have] exclusive jurisdiction and venue.

III. FACTUAL ALLEGATIONS

3.1 The Amazon Prime Program. Throughout the class period, purchasers on

Amazon.com could join the Amazon Prime Program (“Prime Program”) by paying

Amazon a $79 annual membership fee. In return, Amazon agreed that “Prime

Program Members” would receive free shipping for items: (a) purchased from third-

party vendors that participate in the Prime Program; and (b) designated on the relevant

website as . Until February 22, 2011 (the end of the class period), free shipping

on items designated as Prime-Eligible was the exclusive benefit of Prime Program

membership. The term “Prime-Eligible” refers to all goods for sale on the relevant

website that are designated .

3.2 Amazon’s Agreement that Shipping Charges Would Not Be Included in

Prices of Items Offered as Prime Eligible. In return for the annual $79 Prime Program

membership fee, Amazon promised and agreed with Prime Program Members: (a) to

provide free shipping on any and all Prime Program Member purchases of Prime-

Eligible items; and (b) that shipping charges would not be included in the prices of

items offered for sale as Prime Eligible.





TEL. (206) 223-0303 FAX (206) 223-0246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3.3 Third-Party Vendor Participants. Fulfillment by Amazon (“FBA”) is a

service offered by Amazon to third-party vendors. Under FBA, the third-party vendor

pays Amazon certain fees. In return, Amazon warehouses goods, fills orders, boxes

and ships, provides customer service and handles returns, and provides payment

collection on third-party-owned goods sold on Amazon.com and other websites.

Third-party vendors who participate in the FBA are referred to as “FBA Vendors.”

Amazon allows and encourages FBA Vendors to list items for sale as Prime-Eligible,

thus promising that the items would be sold without charging for shipping.

3.4 Amazon Induces FBA Vendors to Mark Up the Prices of Prime-Eligible

Items to Include Shipping Charges. During the class period: (a) Amazon advised FBA

Vendors to include the amount they would have charged for shipping in their item

prices in order to maximize total revenue and profit margins; and (b) FBA Vendors

increased their prices to Prime Program Members by the amount they charged others

for shipping without revealing that a portion of those prices was for shipping fees.

Amazon disguised this price increase by giving priority to FBA Vendors, showing their

items first in the results of a Prime Member’s product search.

3.5 Raising Prime-Eligible Item Prices by Shipping Charges Increases

Amazon’s FBA Fees and Allows Amazon to Capture its Shipping Costs. Amazon

charges FBA Vendors a “referral fee,” which is a percentage of the price of the Prime-

Eligible item. Increasing an FBA item price by an amount equal to normal shipping

charges—as recommended by Amazon—results in (a) a higher referral fee paid by FBA

Vendors to Amazon; and (b) the direct and immediate recovery by Amazon, in whole

or in part, of its cost of “free” shipping, contrary to its contractual obligations to Prime

Program Members, and contrary to FTC guidelines, which read:





TEL. (206) 223-0303 FAX (206) 223-0246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

(b) Meaning of “Free.”

(1) (W)hen the purchaser is told that an article is “Free” to him if another article is purchased, the word “Free” indicates that he is paying nothing for that article and no more than the regular price for the other. Thus, a purchaser has a right to believe that the merchant will not directly and immediately recover, in whole or in part, the cost of the free merchandise or service by marking up the price of the article which must be purchased….

16 C.F.R. § 251.1(b)(1) (underlining added).

3.6 Dr. Ekin’s Prime Program Membership. From December 2008 through

December 2010, Dr. Ekin was an Amazon Prime Program Member and paid the annual

membership fee of $79 to Amazon. In return for the $79 annual membership fee,

Amazon promised Dr. Ekin, like all Prime Program Members, free shipping on his

Prime-Eligible purchases, and that the prices of Prime-Eligible items would not be

increased by the inclusion of shipping charges.

3.7 Amazon’s Breach of Obligation to Dr. Ekin and Other Prime Program

Members. Because Amazon induced FBA Vendors to include shipping charges in the

prices of FBA Prime-Eligible items, Dr. Ekin and other Prime Program Members did

not receive the promised benefits. Instead, Amazon’s FBA pricing program resulted in

Prime-Eligible items being routinely offered for sale through FBA Vendors at prices

inflated by shipping charges as described above, despite Amazon’s free shipping

promise.

3.8 Resulting Harm to Dr. Ekin and Other Prime Program Members.

Dr. Ekin and other Prime Program Members were harmed and deceived by Amazon’s

activity because they paid the $79 annual Prime Program membership fee solely for the

benefit of free shipping. However, the prices of FBA items offered to them as Prime

Program Members were routinely inflated to include shipping charges.





TEL. (206) 223-0303 FAX (206) 223-0246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

IV. APPLICABLE LAW

4.1 Washington Law. The applicable Amazon-prepared agreements with

Prime Program Members provide that Washington law applies to any and all claims of

Prime Program Members, including Plaintiff and each proposed class member.

V. CLASS ACTION ALLEGATIONS

5.1 The Class. Plaintiff brings this suit as a class action on behalf of himself

and all other United States residents similarly situated as members of a proposed

plaintiff class (“Class”) pursuant to Rule 23(b)(3). The Class is defined as follows:

All persons and entities residing in the United States who became Amazon Prime members at any time from October 24, 2007 until February 22, 2011, and paid one or more $79 annual Prime membership fees during that Class period.

Excluded from this Class are: (a) defendant, any entity in which defendant has a controlling interest or which has a controlling interest in defendant; (b) defendant’s employees, agents, predecessors, successors or assigns; (c) the judge and staff to whom this case is now or hereafter assigned, and any member of the judge’s immediate family; and (d) plaintiff’s counsel and their immediate families.

5.2 Numerosity. Upon information and belief, the Class consists of well over

one million members and is so numerous that individual joinder is impracticable.

5.3 Commonality and Predominance. Common questions of law and fact

predominate over any questions affecting only individual Class members. Some of the

common legal and factual questions include: (a) whether shipping charges were

routinely included in the prices of FBA Prime-Eligible items; (b) whether the routine

inclusion of shipping charges in the prices of FBA Prime-Eligible items constitutes a

breach of Amazon’s promise to Prime Program Members that shipping charges would

not be included in the prices of items offered for sale as FBA Prime-Eligible;

(c) whether Washington law applies to the claims of all Class members; and





TEL. (206) 223-0303 FAX (206) 223-0246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

(d) whether Amazon’s activity was unfair and deceptive in trade or commerce,

adversely impacting the public interest.

5.4 Typicality. For the following non-inclusive reasons, Plaintiff’s claims are

typical of those of the Class members. (a) Plaintiff, like all Class members, became an

Amazon Prime Program Member during the period that the Terms and Conditions

governing his Amazon Prime Program membership provided that: (i) disputes

involving an “aggregate total claim for relief sought on behalf of one or more parties

exceeds $7,500 shall be adjudicated in any state or federal court in King County,

Washington …”; and (ii) “the laws of the state of Washington … will govern … any

dispute of any sort that might arise between you and Amazon…”; and (b) Amazon

continually breached its promise to Plaintiff and Prime Program Members that

shipping charges would not be included in the prices of items offered for sale as FBA

Prime-Eligible. Shipping charges were, throughout the Class period, routinely

included in the prices of FBA Prime-Eligible items.

5.5 Adequacy. Plaintiff will fairly and adequately represent the Class

because his interests are not adverse to those of the Class and he suffered harm similar

to that suffered by the Class he seeks to represent. He has retained experienced

counsel competent in class action litigation. The interests of the Class will be fairly and

adequately protected by Plaintiff and his counsel. Neither Plaintiff nor undersigned

counsel has any interest that may inhibit or obstruct the vigorous pursuit of this action.

5.6 Class Form Superior to All Other. This class action is superior to the

other available means for the fair and efficient resolution of the claims of Plaintiff and

the proposed Class members. The relief sought per individual member of the Class is

small relative to the burden and expense of prosecuting claims against Amazon. It

would be virtually impossible for the Class members to seek redress on an individual

basis. Given the similar nature of Class members’ claims and the contractual provision





TEL. (206) 223-0303 FAX (206) 223-0246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

designating the laws of the State of Washington as governing, a nationwide class could

be managed by this court. A significant economy of scale exists in concentrating the

litigation in this forum.

5.7 Individual Prosecution Unlikely and Unreasonable. Plaintiff and his

counsel are not aware of any interest that members of the Class would have in

individually controlling the prosecution of separate actions, especially given: (a) the

relatively small size of each individual claim; and (b) the cost, expense and difficulty of

litigating against one of the largest companies in the United States. Plaintiff and his

counsel are not aware of any actions already commenced on behalf of members of the

Class alleging similar claims or seeking similar relief.

VI. CAUSE OF ACTION: BREACH OF CONTRACT

6.1 Incorporation. The preceding paragraphs are re-alleged and

incorporated herein.

6.2 Amazon’s Breach of Its Contractual Obligation to Prime Program

Members. The routine inclusion and encouragement of inclusion of shipping charges

in the prices of FBA Prime-Eligible items constitutes a breach of Amazon’s promise to

Prime Program Members that shipping charges would not be included in the prices of

items offered for sale as FBA Prime-Eligible, and violates Amazon’s agreement that

shipping would be “free.”

6.3 Loss and Causation. As a direct result of Amazon’s breach, Plaintiff and

the Class members were harmed by Amazon’s conduct, and Amazon was unjustly

benefited at the expense and to the detriment of Plaintiff and the Class members.

VII. SECOND CAUSE OF ACTION: VIOLATIONS OF WASHINGTON CONSUMER PROTECTION ACT

7.1 Incorporation. The preceding paragraphs are re-alleged and

incorporated herein.





TEL. (206) 223-0303 FAX (206) 223-0246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7.2 Washington Consumer Protection Act Violations.

7.2.1 Amazon had a statutory duty to refrain from unfair or deceptive

acts or practices in trade and commerce.

7.2.2 Amazon’s conduct, described above, was unfair and deceptive in

trade and commerce.

7.2.3 Amazon’s unfair and deceptive conduct in trade and commerce,

described above, impacted the public interest, and Plaintiff and the Class he seeks to

represent were proximately harmed as a result.

7.3 Consumer Protection Act Relief. The Washington Consumer Protection

Act entitles Plaintiff and Class members to actual damages and other relief, such as

attorneys’ fees, costs and treble damages, as provided for in RCW 19.86.

VIII. RELIEF REQUESTED

Plaintiff requests the following relief:

8.1 Class Certification. Certification of the action as a class action and

appointment of Plaintiff as Class representative and his counsel of record as Class

counsel;

8.2 Damages. An award of actual/compensatory damages in an amount to

be proven, and consisting of, among other things, a refund of all annual Prime Program

membership fees paid during the Class period;

8.3 CPA Damages. Treble damages as provided under the Washington

Consumer Protection Act;

8.4 Attorneys’ Fees and Costs. The costs of bringing this suit, and reasonable

attorneys’ fees and costs for prosecuting it;

8.5 Interest. Pre- and post-judgment interest on all amounts as permitted by

law; and





TEL. (206) 223-0303 FAX (206) 223-0246

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8.6 Other Relief. All further relief, of any type or nature, that this Court

determines is just, equitable or necessary.

IX. JURY DEMAND

9.1 Plaintiff respectfully demands a trial by jury.

DATED: February 19, 2014.


By s/ Stephen J. Sirianni By s/ Chris R. Youtz By s/ Richard E. Spoonemore By s/ Eleanor Hamburger By s/ Charles D. Sirianni Stephen J. Sirianni (WSBA #6957) Chris R. Youtz (WSBA #7786) Richard E. Spoonemore (WSBA #21833) Eleanor Hamburger (WSBA # 26478) Charles D. Sirianni (WSBA #40421)

999 Third Avenue, Suite 3650 Seattle, WA 98104 Tel. (206) 223-0303 Fax (206) 223-0246 [email protected] [email protected] [email protected] [email protected] [email protected]

Co-counsel for Plaintiff

—and—

DAVID M. SIMMONDS

By s/ David M. Simmonds David M. Simmonds (WSBA # 6994)

c/o SIRIANNI YOUTZ SPOONEMORE HAMBURGER Co-counsel for Plaintiff


mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

CIVIL COVER SHEET

(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b)(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

(c) (Firm Name, Address, and Telephone Number) (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

PTF DEF PTF DEF(U.S. Government Not a Party) or

and(Indicate Citizenship of Parties in Item III)

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

PERSONAL INJURY PERSONAL INJURY

PROPERTY RIGHTS

LABOR SOCIAL SECURITY PERSONAL PROPERTY

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITSHabeas Corpus:

IMMIGRATIONOther:

V. ORIGIN (Place an “X” in One Box Only)

(specify)

VI. CAUSE OF ACTION(Do not cite jurisdictional statutes unless diversity)

VII. REQUESTED IN COMPLAINT:

CLASS ACTION DEMAND $JURY DEMAND:

VIII. RELATED CASE(S) IF ANY (See instructions):

FOR OFFICE USE ONLY

Case 2:14-cv-00244 Document 1-1 Filed 02/19/14 Page 1 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

I.(a) Plaintiffs-Defendants.

(b) County of Residence.

(c) Attorneys.

II. Jurisdiction.

. ; NOTE: federal question actions take precedence over diversity cases.

III. Residence (citizenship) of Principal Parties.

IV. Nature of Suit.

V. Origin.

VI. Cause of Action. Do not cite jurisdictional statutes unless diversity.

VII. Requested in Complaint.

VIII. Related Cases.

Date and Attorney Signature.


United States District Court for the

Western District of Washington

Civil Action No.

Defendant

Plaintiff

SUMMONS IN A CIVIL ACTION

A lawsuit has been filed against you.

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.

You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

To: (Defendant's name and address)

v.

AO440 - WAWD (Revised 10/11) Summons in a Civil Action

) ) ) ) ) ) ) ) ) ) ) )

Within days after service of this summons on you (not counting the day you received it) - or days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal

Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address is:


AO440WAWD (Revised 10/11) Summons in a Civil Action (Page 2)

Additional information regarding attempted service, etc.

PROOF OF SERVICE

This section should not be filed with the court unless required by Fed.. R. Civ. P. 4(1)

This summons for (name of individual and title, if any)

was received by me on (date)

I personally served the summons and complaint on the individual at (place)

I left the summons and complaint at the individual's residence or usual place of abode with (name)

I served the summons and complaint on (name of individual)

I returned the summons unexecuted because

Other (specify)

on (date)

; or

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual's last known address; or

on (date) ; or

My fees are $ for travel and $ for services, for a total of $ .

.

I declare under penalty of perjury that this information is true.

Date:

Server's signature

Printed name and title

Server's address

; or

who is designated by law to accept service of process on behalf of (name of organization)


Plaintiff: DR. A. CEMAL EKIN,individually and on behalf of similarly situated individualsDate: 02/19/2014b_County_of_Residence_of: Kent County, Rhode IslandFirmName: Sirianni Youtz Spoonemore Hamburger999 Third Avenue, Suite 3650Seattle, WA 98104Basis of Jurisdiction: 4.DiversityNature of Suit: 190CauseofAction: 28 U.S.C. 1332Brief Description: Class action alleging breach of consumer contract (seeking in excess of $75,000 exclusive of interest and costs)CHECK_IF_THIS_IS_A_CLASS: 1Demand: JUDGE: Sig: Stephen J. Sirianni (WSBA #6957)Defendant: AMAZON SERVICES LLC, a Nevada limited liability companyCounty_of_Residence_of_Fi: Attorneys: 7: 8: 11: 112: 15: 16: 9: 10: 113: 14: 17: 18: CHECK_YES_only_if_demand1: YesDOCKET_NUMBER:

Documents

Plaintiff Ekin (“Dr. Ekin” or “Plaintiff”) · 2014. 2. 24. · Amazon promised Dr. Ekin, like all Prime Program Members, free shipping on his Prime-Eligible purchases, and