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Nicosia v., Inc.

United States District Court, E.D. New York

February 4, 2015

DEAN NICOSIA, on behalf of himself and all others similarly situated, Plaintiff, --
-- AMAZON.COM, INC., Defendant

Decided February 2, 2015.

For Dean Nicosia, on behalf of himself and all others similarly situated, Plaintiff: Gregory S. Duncan, LEAD ATTORNEY, PRO HAC VICE, Office of Gregory S. Duncan, Charlottesville, VA; Joseph S. Tusa, LEAD ATTORNEY Tusa, P.C., Southhold, NY; Peter D. St. Phillip, Jr. LEAD ATTORNEY, Lowey Dannenberg, et. al., White Plains, NY; Scott Vincent Papp, LEAD ATTORNEY, Lowey Dannenbery Cohen & Hart, P.C., White Plains, NY; Paula M. Roach, Blood Hurst & O'Reardon LLP, San Diego, CA; Timothy G. Blood, Blood Hurst & O'Reardon LLP, San Diego, CA.

For, Inc., Defendant: Gregory T. Parks, PRO HAC VICE, David Abraham Snider, Ezra D. Church, Kevin T. Rover, Regina Schaffer-Goldman, Morgan, Lewis & Bockius LLP, New York, NY.


SANDRA L. TOWNES, United States District Judge.

Plaintiff Dean Nicosia brings this putative class action against, Inc. (" Amazon" or "" ), contending that Amazon has sold and continues to sell weight loss supplements containing sibutramine, a " controlled substance ... [that has] never been permitted for sale without a prescription from a licensed physician ... [and that is] associated with a serious risk of cardiovascular events and strokes," in violation of various federal and state consumer protection laws and in breach of various implied warranties. (Compl. ¶ ¶ 2, 86-175.) Currently before the Court are (1) Amazon's motion to dismiss on the grounds that, inter alia, all of Plaintiff's claims are governed by a mandatory arbitration clause and class action waiver, and (2) Nicosia's motion for a preliminary injunction, in which Nicosia asks this Court to grant the following injunctive relief:

A. Requiring Amazon to comply with the 'special packaging' rules promulgated by the Consumer Product Safety Commission;
B. Preliminarily enjoining Amazon from further distributing any weight loss products that contain sibutramine; and
C. Providing a court-approved remedial notice to all consumers to whom Amazon sold products containing sibutramine, and post the same notice conspicuously on its website.

(PI. PI Br. at 23-24.) Amazon's motion to dismiss is granted because all of Plaintiff's claims are subject to mandatory arbitration and Plaintiff's motion for a preliminary injunction is denied because Plaintiff lacks standing.

Factual Background

Plaintiff Dean Nicosia is a resident of Wilmington, North Carolina. He alleges that " during the class period(s) [he] was a resident of Massapequa, New York." (Compl. ¶ 15.) Plaintiff twice, first on January 30, 2013 and then again on April 19, 2013, purchased diet drugs known as " 1 Day Diet" from a third-party seller on (Compl. ¶ ¶ 7, 54-55.)

Sibutramine is a controlled substance only available by prescription. The United States Food and Drug Administration (" FDA" ) had previously published a press release, on October 8, 2010, stating the " continued availability" of a certain diet drug containing sibutramine " is not justified when you compare the very modest weight loss that people achieve on this drug to their risk of heart attack or stroke," and reporting that the results of a clinical trial " demonstrated a 16 percent increase in the risk of serious heart events, including non-fatal heart attack, non-fatal stroke, the need to be resuscitated once the heart stopped, and death, in a group of patients given sibutramine compared to another given placebo." (Compl. at ¶ ¶ 19-20 (quoting FDA Oct. 8, 2010 Press Release)).

Several months after Plaintiff made his purchases, on November 21, 2013, the FDA issued a " Public Notification" that the 1 Day Diet product contained " hidden" sibutramine. (Compl. ¶ ¶ 58-59.) The FDA's November 21, 2013 Public Notification, which is directed towards the public, not retailers, does not call for any further action by retailers. It states that:

The Food and Drug Administration (FDA) is advising consumers not to purchase or use " 1 Day Diet," a product promoted and for weight loss on various websites and possibly in some retail stores.
FDA laboratory analysis confirmed that " 1 Day Diet" contains sibutramine. ...
Consumers should stop using this product immediately and throw it away. Consumers who have experienced any negative side effects should consult a health care professional as soon as possible. ...
Note: This notification is to inform the public of a growing trend of dietary supplements or conventional foods with hidden drugs and chemicals. These products are typically promoted for sexual enhancement, weight loss, and body building, and are often represented as being " all natural." FDA is unable to test and identify all products marketed as dietary supplements on the market that have potentially harmful hidden ingredients. Consumers should exercise caution before purchasing any product in the above categories.

(Compl. at ¶ 19.)

The label on the container of the 1 Day Diet product did not list sibutramine as an ingredient. (Compl. at ¶ 7.) It is undisputed that neither Plaintiff nor Amazon knew, at the time that Plaintiff made his purchases, that the 1 Day Diet product contained sibutramine.

According to Plaintiff, in making his purchases, he used an online account that he established with on or about June 9, 2008. When setting up his account, Plaintiff checked a box indicating that he agreed with Amazon's " Conditions of Use." The Conditions of Use in effect in June 2008 (the " 2008 Conditions of Use" ) provided, in relevant part, that:

Any dispute relating in any way to your visit to or to products or services sold or distributed on Amazon or through in which the aggregate total claim for relief sought on behalf of one more parties exceeds $7,500 shall be adjudicated in any state or federal court in King County, Washington, and you consent to exclusive jurisdiction and venue in such courts.

(Duncan Decl. in Support of Pl.'s Opp'n to Motion to Dismiss Deck, Ex. C at 7.) The 2008 Conditions of Use also stated, in relevant part: " We reserve the right to make changes to our site, policies, and these Conditions of Use at any time." ( Id. at 8.)[1]

In addition, both times that Plaintiff made the purchases at issue in this litigation on the website, he viewed a checkout screen that provided, on top, a hyperlink to the then-current Conditions of Use and reminded customers that " by placing [an] order," they " agree to's conditions of use." The Conditions of Use in effect as of December 5, 2012 through the period that Plaintiff made both of the purchases as issue in this litigation, (the " 2012 ...

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