`
`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 1 of 17
`
`
`
`Jedediah Wakefield (CSB No. 178058)
`jwakefield@fenwick.com
`Matthew Becker (CSB No. 291865)
`mbecker@fenwick.com
`Esther D. Galan (CSB No. 335763)
`egalan@fenwick.com
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Telephone: 415.875.2300
`Facsimile: 415.281.1350
`
`Brian D. Buckley (admitted pro hac vice)
`bbuckley@fenwick.com
`FENWICK & WEST LLP
`1191 Second Avenue, 10th Floor
`Seattle, WA 98101
`Telephone: 206.389.4510
`Facsimile: 206.389.4511
`
`Janie Yoo Miller (CSB No. 312715)
`jmiller@fenwick.com
`FENWICK & WEST LLP
`228 Santa Monica Boulevard, Suite 300
`Santa Monica, CA 90401
`Telephone: 310.434.5400
`Facsimile: 650.938.5200
`
`Counsel for Defendant
`AMAZON.COM, INC.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`Plaintiff,
`
`JULIA HECK, on behalf of herself and all others
`similarly situated,
`
`
`v.
`
`AMAZON.COM, INC.,
`
`Defendant.
`
`
` Case No.: 4:22-cv-03986-JSW
`
`DEFENDANT AMAZON.COM, INC.’S
`NOTICE OF MOTION AND MOTION
`TO DISMISS CLASS ACTION
`COMPLAINT
`
`Date:
`Friday, September 23, 2022
`Time:
`9:00 a.m.
`Judge:
`Hon. Jeffrey S. White
`Courtroom 5
`
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 2 of 17
`
`
`
`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that on September 23, 2022 at 9:00 a.m., or as soon thereafter as
`counsel may be heard, in the courtroom of the Honorable Jeffrey S. White, located at Courtroom
`5, 1301 Clay Street, Oakland, CA 94612, Defendant Amazon.com, Inc. will and hereby does move
`the Court for an order dismissing Plaintiff’s Complaint, and all causes of action it contains, under
`Federal Rule of Civil Procedure 12(b)(6) for failure to plead facts sufficient to state a claim upon
`which relief may be granted.
`This Motion is based on this Notice of Motion; Amazon’s Memorandum of Points and
`Authorities; Amazon’s Request for Judicial Notice; the concurrently filed Declaration of Jedediah
`Wakefield and exhibits attached thereto; the papers on file in this action; any Reply which Amazon
`may file in support of this Motion and its Request for Judicial Notice; and any evidence and
`argument presented to the Court.
`
`
`Dated: August 5, 2022
`
`FENWICK & WEST LLP
`
`By: /s/ Jedediah Wakefield
`Jedediah Wakefield
`
`
`Counsel for Defendant
`AMAZON.COM, INC.
`
`
`
`AMAZON’S MOTION TO DISMISS
`
`i
`
`Case No.: 4:22-cv-03986-JSW
`
`
`
`
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 3 of 17
`
`
`
`TABLE OF CONTENTS
`
`Page
`MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1
`I.
`INTRODUCTION .............................................................................................................. 1
`II.
`STATEMENT OF FACTS ................................................................................................. 2
`A.
`Plaintiff and Her Claims.......................................................................................... 2
`B.
`Amazon and Audible Do Not Claim That An Audible Membership Is Free.......... 2
`LEGAL STANDARD ......................................................................................................... 4
`ARGUMENT ...................................................................................................................... 5
`A.
`Plaintiff’s Complaint Fails to Give Amazon Fair Notice Of The Basis For
`Her Claims. ............................................................................................................. 5
`Plaintiff Fails to State a Claim Under The CLRA. ................................................. 6
`1.
`Plaintiff Fails to Identify Any Misrepresentations. ..................................... 6
`2.
`Plaintiff Fails to Allege Reliance. ............................................................... 8
`Plaintiff Fails to State A Claim Under The UCL. ................................................... 9
`C.
`CONCLUSION ................................................................................................................. 12
`
`
`B.
`
`III.
`IV.
`
`V.
`
`
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`ii
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 4 of 17
`
`
`
`TABLE OF AUTHORITIES
`
`PAGE(S)
`
`CASES
`Arnold v. Hearst Magazine Media, Inc.,
`No. 19-cv-1969-WQH-MDD, 2020 WL 3469367 (S.D. Cal. June 25, 2020) ..........................10
`Arroyo v. AJU Hotel Silicon Valley LLC,
`No. 20-cv-08218-JSW, 2021 WL 2350813 (N.D. Cal. Mar. 16, 2021) ......................................2
`Balistreri v. Pacifica Police Dep’t,
`901 F.2d 696 (9th Cir. 1990) .......................................................................................................4
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ..........................................................................................................4, 5, 10
`Cel-Tech Comm., Inc. v. L.A. Cellular Tel. Co.,
`20 Cal. 4th 163 (1999) ................................................................................................................9
`Doe v. Epic Games, Inc.,
`435 F. Supp. 3d 1024 (N.D. Cal. 2020) ......................................................................................8
`Eidmann v. Walgreen Co.,
`522 F. Supp. 3d 634 (N.D. Cal. 2021) ........................................................................................9
`Hadley v. Kellogg Sales Co.,
`243 F. Supp. 3d 1074 (N.D. Cal. 2017) ............................................................................4, 6, 11
`Hale v. Sharp Healthcare,
`183 Cal. App. 4th 1373 (2010) ...................................................................................................6
`Herskowitz v. Apple Inc.,
`940 F. Supp. 2d 1131 (N.D. Cal. 2013) ......................................................................................4
`In re Apple Processor Litig.,
`No. 18-cv-00147-EJD, 2022 WL 2064975 (N.D. Cal. June 8, 2022) .........................................5
`Kearns v. Ford Motor Co.,
`567 F.3d 1120 (9th Cir. 2009) .................................................................................................4, 8
`Kwikset Corp. v. Super. Ct.,
`51 Cal. 4th 310 (2011) ..............................................................................................................11
`McKee v. Audible, Inc.,
`No. CV 17-1941-GW(EX), 2017 WL 7388530 (C.D. Cal. Oct. 26, 2017) ..........................3, 10
`Orshan v. Apple Inc.,
`No. 5:14-CV-05659-EJD, 2018 WL 1510202 (N.D. Cal. Mar. 27, 2018) .................................6
`Rojas-Lozano v. Google, Inc.,
`159 F. Supp. 3d 1101 (N.D. Cal. 2016) ......................................................................................8
`Rutter v. Apple Inc.,
`No. 21-CV-04077-HSG, 2022 WL 1443336 (N.D. Cal. May 6, 2022) ....................................11
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`iii
`
`Case No.: 1:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 5 of 17
`
`
`
`TABLE OF AUTHORITIES
`(CONTINUED)
`
`PAGE(S)
`
`CASES
`Turnier v. Bed Bath & Beyond Inc.,
`517 F. Supp. 3d 1132 (S.D. Cal. 2021) .....................................................................................10
`Vess v. Ciba-Geigy Corp. USA,
`317 F.3d 1097 (9th Cir. 2003) .....................................................................................................4
`Warner v. Tinder, Inc.,
`105 F. Supp. 3d 1083 (C.D. Cal. 2015) ..................................................................................7, 9
`Warth v. Seldin,
`422 U.S. 490 (1975) ....................................................................................................................9
`Yastrab v. Apple Inc.,
`No. 5:14-CV-01974-EJD, 2015 WL 1307163 (N.D. Cal. Mar. 23, 2015) .......................4, 7, 11
`STATUTES
`Cal. Bus. & Prof. Code § 17200 ...................................................................................................2, 9
`Cal. Bus. & Prof. Code § 17600 .......................................................................................................2
`Cal. Bus. & Prof. Code § 17602(a) .................................................................................................10
`Cal. Civ. Code § 1750 .......................................................................................................................2
`Cal. Civ. Code § 1761(a) ..................................................................................................................8
`Cal. Civ. Code § 1770 ...................................................................................................................6, 8
`Fed. R. Civ. P. 8 ...................................................................................................................... passim
`Fed. R. Civ. P. 9 ...................................................................................................................... passim
`Fed. R. Civ. P. 12 ..............................................................................................................................4
`
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`iv
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 6 of 17
`
`
`
`I.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`Plaintiff Julia Heck is a member of Amazon Prime, a service that provides free shipping
`from amazon.com, along with other benefits. She was charged a monthly subscription fee for
`Audible, a service that provides online access to audiobooks. The crux of her Complaint is that
`because Amazon lists “Free Titles at Audible” among “other benefits” of a Prime membership,
`consumers are duped into believing that the Audible service is “free” for Prime members. On that
`basis, Plaintiff asserts claims for violations of the California Consumers Legal Remedies Act and
`California Unfair Competition Law, on her own behalf and on behalf of a putative class. But Ms.
`Heck does not claim that she ever saw, much less relied on, any claim about “Free Titles” on
`Audible. Her Complaint also refers to an enrollment process that is “likely to deceive reasonable
`consumers,” but Plaintiff never states that she used any such enrollment process. And she also
`claims that Amazon makes it difficult for customers to cancel Audible subscriptions, and limits
`refunds when they do, but she never claims that she had any difficulty cancelling an Audible
`subscription, or that she sought or was denied a refund. The Complaint quotes online complaints
`by others, but it does not allege how—or even whether—Plaintiff was deceived or injured.
`These conclusory allegations fail to meet even the most basic requirements of Rule 8(a): to
`provide a short, plain statement showing that Plaintiff is entitled to relief. And because both causes
`of action sound in fraud, they are subject to the heightened pleading standards of Rule 9(b).
`Plaintiff’s threadbare allegations come nowhere near meeting that standard.
`Moreover, the Complaint also cites and relies on—and therefore incorporates by
`reference—Amazon webpages that make clear that Amazon in fact offers “free titles” to Prime
`members as part of a free trial, after which users agree to pay a clearly disclosed monthly
`subscription fee. The Complaint does not allege, nor could it, that those webpages somehow
`deceive consumers into believing that Audible is a free service.
`In sum, the Complaint identifies no misrepresentations by Amazon or injury to Plaintiff,
`and the only representation by Amazon that it does identify is demonstrably true. Accordingly,
`Amazon respectfully asks the Court to dismiss the Complaint in its entirety.
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`1
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 7 of 17
`
`
`
`II.
`
`STATEMENT OF FACTS
`A.
`Plaintiff and Her Claims.
`Plaintiff Julia Heck is a California resident. She alleges that she was an Amazon Prime
`member who was charged for an Audible subscription without her consent. Compl. ¶ 7. Plaintiff
`alleges that she was charged a total of $59.80 between April and July of 2021. Id. She seeks to
`represent a class of “[a]ll persons in California who were charged for Audible services from May
`13, 2018 to the date of judgment, and did not stream or download any content from Audible during
`the subscription period or after the free trial subscription period.” Id. ¶ 28. Her Complaint asserts
`claims for violation of California’s Consumers Legal Remedies Act (Cal. Civ. Code §§1750 et seq.)
`(“CLRA”) and Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200 et seq.) (“UCL”),
`predicated on a violation of California’s Automatic Renewal Law (Cal. Bus. & Prof. Code §§ 17600
`et seq.) (“ARL”).
`While the Complaint refers generally to Amazon and its alleged promotion of Amazon
`Prime benefits, Plaintiff does not allege that she saw any advertising or promotion about Audible,
`by Amazon or anyone else. She also does not allege when, where, how, or even whether she signed
`up for Audible, what disclosures she saw, or what written acknowledgments or reminders she
`received from Audible after enrollment.
`B.
`Amazon and Audible Do Not Claim That An Audible Membership Is Free.
`Amazon is a provider of e-commerce and digital services. Compl. ¶ 1. Amazon also offers
`subscriptions to services such as free delivery with Amazon Prime, and access to stream or
`download audiobook and other spoken-audio content with Audible. Id. ¶ 4; Declaration of Jedediah
`Wakefield (“Wakefield Decl.”), Ex. 1 (Prime Membership Benefits Page).1 Audible is a wholly
`owned subsidiary of Amazon. Compl. ¶ 4.
`Along with free delivery services, Amazon Prime members receive additional benefits such
`as shopping deals, video streaming from Amazon Prime Video, and music services from Amazon
`
`1 Amazon has concurrently filed a Request for Judicial Notice in which it asks the Court to take
`judicial notice of Amazon webpages cited in the Complaint. On a motion to dismiss, the Court
`may consider “document[s] whose contents are alleged in the complaint” or “documents [that] are
`proper subjects of judicial notice.” Arroyo v. AJU Hotel Silicon Valley LLC, No. 20-cv-08218-
`JSW, 2021 WL 2350813, at *2 (N.D. Cal. Mar. 16, 2021) (alteration in original) (citation omitted).
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`2
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 8 of 17
`
`
`
`Music. Compl. ¶ 2; Wakefield Decl., Ex. 1. The Complaint alleges that Amazon lists “Free Titles
`at Audible” as one of the Prime membership benefits. In support of that claim, the Complaint cites
`and includes a link to an Amazon Prime benefits description page, which contains a long list of
`benefits with hyperlinks to pages providing more information about them. Compl. ¶¶ 2-3. What
`Amazon actually says on that page is the following: “Free Titles at Audible: Prime members are
`invited to start an Audible Premium Plus trial with 2 credits that can be used on any titles.”
`Wakefield Decl. ¶ 4, Ex. 1. Thus, Amazon says that Prime members can get two free credits for
`titles on Audible as part of trial, but Amazon never tells Prime members that an Audible
`membership is free, as the Complaint wrongly suggests. See Compl. ¶ 4.
`A Prime member seeing this who wants to explore more information about Audible can
`click on the “Free Titles at Audible” hyperlink, which takes the user to an Audible webpage offering
`“One Month Free.” Wakefield Decl. ¶¶ 4-5, Ex. 2. There, Audible promotes one month of Audible
`for free (which normally comes with 1 free credit), stating “Amazon Prime Members Get More …
`Prime members get any 2 titles free with an Audible Premium Plus trial.” Id. The webpage also
`provides answers to Frequently Asked Questions such as “How does the free trial work?” and “How
`much does Audible cost?” Immediately below buttons stating “Try for $0.00” and “Try Audible
`Premium Plus free,” Audible states “$14.95 a month after 30 days. Cancel anytime.” Id. In other
`words, Amazon Prime members do get “free titles” as part of a free trial, but they must pay a
`membership fee if they want to continue their subscription after that trial period.
`All of these disclosures and explanations—which appear in webpages incorporated into the
`Complaint—rebut the central thesis of Plaintiff’s Complaint: that Amazon advertises Audible as
`“free” when it is not. Nor does the Complaint state why such disclosures would fail to meet the
`requirements of California’s ARL. But in all events, Plaintiff herself does not claim to have used
`this sign-up process, or to have seen or relied on any of the disclosures it provides. Indeed, the
`Complaint contains no allegation that Plaintiff read or saw anything about Audible. Accordingly,
`as discussed below, she fails to plead any valid claim.
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`3
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 9 of 17
`
`
`
`III. LEGAL STANDARD
`The Rule 12(b)(6) standard is well-known and well-established. A motion to dismiss under
`Rule 12(b)(6) should be granted where there is either a lack of a legally cognizable theory or the
`absence of sufficient facts alleged under a cognizable theory. Balistreri v. Pacifica Police Dep’t,
`901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss, a complaint must present factual
`allegations sufficient to raise a right to relief beyond mere speculation. Bell Atl. Corp. v. Twombly,
`550 U.S. 544, 555 (2007) (citation omitted); see also Fed. R. Civ. P. 8. The Complaint must include
`enough facts to state a claim that is “plausible on its face.” Twombly, 550 U.S. at 547. Importantly
`here, “‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
`statements, do not suffice’ to state a claim.” Yastrab v. Apple Inc., No. 5:14-CV-01974-EJD, 2015
`WL 1307163, at *2 (N.D. Cal. Mar. 23, 2015) (alteration in original) (quoting Ashcroft v. Iqbal,
`556 U.S. 662, 663 (2009)). “Mere ‘conclusory allegations of law and unwarranted inferences are
`insufficient to defeat a motion to dismiss.’” Herskowitz v. Apple Inc., 940 F. Supp. 2d 1131, 1137
`(N.D. Cal. 2013) (quoting Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 1981)).
`Claims sounding in fraud must meet the heighted pleading standard of Rule 9(b).
`“Averments of fraud must be accompanied by ‘the who, what, when, where, and how of the
`misconduct charged.’” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)
`(citation omitted); see Fed. R. Civ. P. 9(b). Rule 9(b) applies not only to fraud claims but also to
`any claims that sound in fraud, such as CLRA and UCL claims explicitly or implicitly premised on
`a fraud theory. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (holding CLRA
`and UCL claims to Rule 9’s heightened pleading standard); Yastrab, 2015 WL 1307163, at *3
`(holding that CLRA and UCL claims premised on alleged misrepresentations must satisfy Rule
`9(b)); Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1094 (N.D. Cal. 2017) (applying Rule
`9(b) requirements to CLRA and UCL claims based on allegedly deceptive product labeling).
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`4
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 10 of 17
`
`
`
`IV. ARGUMENT
`
`A.
`
`Plaintiff’s Complaint Fails to Give Amazon Fair Notice Of The Basis For Her
`Claims.
`
`is premised on alleged
`the Complaint
`further below, because
`As discussed
`“misrepresentations” and “deceptive acts” (See, e.g., Compl. ¶¶ 45, 55), the claims sound in fraud
`and are subject to Rule 9(b)’s heightened pleading standard. But the Complaint fails to meet even
`Rule 8(a)’s requirement to state a short and plain statement showing that Plaintiff is entitled to
`relief.
`The Complaint is completely devoid of any detail about Plaintiff’s connection to Audible,
`the disclosures she saw either for an Amazon Prime or an Audible subscription, or how they could
`give rise to her claims. A complaint must “give the defendant fair notice of what the … claim is
`and the grounds on which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S.
`41, 47 (1957)); see Fed. R. Civ. P. 8(a); see also In re Apple Processor Litig., No. 18-cv-00147-
`EJD, 2022 WL 2064975, at *3 (N.D. Cal. June 8, 2022) (quoting Twombly, 55 U.S. at 555). This
`Complaint here falls short of that standard. It consists of conclusory statements with no factual
`support. See, e.g., Compl. ¶ 5 (“Inadvertent Audible membership is not adequately disclosed to the
`Prime members.”). And it merely parrots claims elements, without explaining how they map to
`any representations or disclosures that Plaintiff relied on or even saw. Id. ¶ 57. The Complaint also
`contains no allegation that Amazon charged Plaintiff for Audible, instead stating vaguely that
`“Plaintiff’s [sic] was improperly charged” for an Audible subscription. Id. ¶ 7. The Complaint
`therefore leaves Amazon and the Court to guess at what Plaintiff’s claim really is and the grounds
`on which it rests.
`Compounding this lack of clarity, the few allegations Plaintiff provides contradict each
`other. On the one hand, she suggests that Prime members have no idea that they were signed up
`for Audible. Id. ¶¶ 14-15 (“Prime members have no idea how they were signed up for Audible until
`they later see Audible’s monthly charges”). On the other hand, she claims she would not have
`signed up had she known the price. Id. ¶ 58 (“Had Defendant’s [sic] made clear that Plaintiff and
`the Class members were going to be charged $14.95 for their Audible accounts, Plaintiff and the
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`5
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 11 of 17
`
`
`
`Class members would not have spent $14.95 per month for the accounts.”). Plaintiff cannot have
`it both ways, and Amazon should not have to guess which allegations it faces.
`The Complaint’s conclusory allegations cannot satisfy even the Rule 8 pleading standard.
`On this basis, the Complaint should be dismissed.
`B.
`Plaintiff Fails to State a Claim Under The CLRA.
`The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or
`practices.” Cal. Civ. Code § 1770. To plead a CLRA claim, a plaintiff must allege that a defendant
`engaged in conduct prohibited by Section 1770, and that the defendant’s conduct caused the
`plaintiff harm. Id.; see also Hale v. Sharp Healthcare, 183 Cal. App. 4th 1373, 1387 (2010).
`Among the twenty-seven activities deemed unlawful by the CLRA, Plaintiff relies
`specifically on three: (1) “[r]epresenting that goods or services … have … characteristics,
`ingredients, uses, benefits, or quantities that they do not have,” (2) “[r]epresenting that a transaction
`confers or involves rights, remedies, or obligations that it does not have or involve, or that are
`prohibited by law,” and (3) “[r]epresenting that the subject of a transaction has been supplied in
`accordance with a previous representation when it has not.” Cal. Civ. Code §§ 1770(a)(5), (14),
`(16). As discussed below, the core of each of these proscribed activities is a misrepresentation, and
`therefore Plaintiff’s CLRA claim sounds in fraud and is subject to Rule 9(b)’s heightened pleading
`standard. Because Plaintiff fails to identify any specific misrepresentations, or any reliance on her
`part, her claims must be dismissed.
`1.
`Plaintiff Fails to Identify Any Misrepresentations.
`CLRA claims that are premised on alleged misrepresentations sound in fraud and are subject
`to Rule 9(b)’s heightened pleading standard. See Orshan v. Apple Inc., No. 5:14-CV-05659-EJD,
`2018 WL 1510202, at *5–6 (N.D. Cal. Mar. 27, 2018) (dismissing CLRA and UCL claims under
`Rule 9(b) standard where claims were based on alleged misrepresentations); Hadley, 243 F. Supp.
`3d at 1085 (same). Under Rule 9(b), a plaintiff asserting a CLRA claim must provide “‘an account
`of the time, place, and specific content of the false representations as well as the identities of the
`parties to the misrepresentations.’” Orshan, 2018 WL 1510202, at *2 (citation omitted). Here,
`Plaintiff’s claim is premised on alleged misrepresentations that Amazon used to “surreptitiously
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`6
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 12 of 17
`
`
`
`enroll[] its Prime members in a paid subscription to Audible.” Compl. ¶ 4. Plaintiff likewise
`alleges that Amazon’s conduct was “willful, wanton, and fraudulent.” Id. ¶ 47. Thus, because
`Plaintiff’s claims rest on allegations that Amazon made fraudulent representations, Rule 9(b)’s
`heightened pleading standard applies. Accordingly, the Complaint must identify the “who, what,
`where, when, and how” of any misrepresentation. Yastrab, 2015 WL 1307163, at *3.
`The only statement Plaintiff identifies with any particularity is Amazon’s representation
`that Amazon Prime benefits include “Free Titles at Audible.” Compl. ¶ 3. She claims this is false
`because “Prime membership does not include Audible for ‘free,’” and “Audible provides
`downloadable and streaming audio content for a monthly fee.” Id. ¶ 4 (emphases in original). But
`there is nothing false about the “Free Titles at Audible” statement. As Amazon discloses directly
`as part of that statement, “Free Titles at Audible: Prime members are invited to start an Audible
`Premium Plus trial with 2 credits that can be used on any titles.” Wakefield Decl., Ex. 1 at 2
`(emphasis added). Additionally, “Free Titles at Audible” is a hyperlink that leads to an Audible
`webpage at audible.com, which further explains all of this. Id. There, Audible also discloses that
`customers can “[c]ancel anytime.” Id., Ex. 2.
`Thus, Amazon (and Audible) make clear that if a customer chooses to enroll in an Audible
`Premium Plus trial, the customer would be entitled to 2 credits to redeem two titles for free.
`Amazon does not make any statement that an Audible subscription is included with Amazon Prime.
`The representation that customers can get “Free Titles at Audible” is true, and Plaintiff does not
`claim otherwise. Tellingly, Plaintiff does not allege that she did not receive two free credits. Thus,
`to the extent the CLRA claim is based on Amazon’s promotion of “Free Titles at Audible,”—and
`that is the only Amazon representation that the Complaint quotes—it fails to state a claim. See
`Warner v. Tinder, Inc., 105 F. Supp. 3d 1083, 1092 (C.D. Cal. 2015) (rejecting claims that Tinder
`falsely advertised app as “free” even though consumers needed to pay fees for subscriptions to
`Tinder services).
`In addition to failing to identify a misrepresentation, Plaintiff’s Section 1170(a)(5) claim
`fails for the additional reason that it requires a misrepresentation regarding goods and services,
`none of which are identified in the Complaint. Under the CLRA, “good” means “tangible chattels
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`7
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 13 of 17
`
`
`
`bought or leased….” Cal. Civ. Code § 1761(a). “Services” means “work, labor, and services for
`other than a commercial or business use.” Id. (1761(b)). An Audible subscription is neither a good
`nor a service within the meaning of the CLRA. See, e.g., Doe v. Epic Games, Inc., 435 F. Supp.
`3d 1024, 1046 (N.D. Cal. 2020) (holding virtual currency is not actionable under the CLRA because
`it is not a “good or service” under the statute); Rojas-Lozano v. Google, Inc., 159 F. Supp. 3d 1101,
`1115–1117 (N.D. Cal. 2016) (reciting cases holding that software is neither a good nor a service
`under the CLRA, and holding same).
`In all events, the Complaint fails to identify any representation concerning “characteristics,
`ingredients, uses, benefits, or quantities” that is false. Cal. Civ. Code § 1770(a)(5). Similarly, it
`does not identify any false representations concerning “rights, remedies, or obligations” under
`Section (a)(14). Id. § 1770(a)(14). Nor does the Complaint identify any previous representation
`“that the subject of a transaction has been supplied in accordance with a previous representation
`when it has not,” as Section (a)(16) requires. Id. § 1770(a)(16). Thus, Plaintiff has not alleged an
`actionable representation under the CLRA, much less with the particularity that Rule 9(b) requires.
`2.
`Plaintiff Fails to Allege Reliance.
`Plaintiff’s CLRA claim fails for the additional reason that she does not allege that she ever
`saw Amazon’s alleged misrepresentations, much less that she relied on them. “To state a claim
`under the CLRA, a plaintiff generally must allege a misrepresentation, reliance, and damages.”
`Doe, 435 F. Supp. 2d at 1046 (emphasis added) (citation omitted). Moreover, the Rule 9(b)
`particularity requirement applies to the circumstances surrounding reliance. See Kearns, 567 F.3d
`at 1125 (holding that the complaint did not meet Rule 9(b) requirements where the plaintiff failed
`to specify when he was exposed to the allegedly fraudulent advertisements, which ones he found
`material, and on which ones he relied). Here, Plaintiff alleges simply that she was “improperly
`charged $14.95 for an Audible subscription she did not agree to” (Compl. ¶ 7), with no
`identification of any representation she saw or relied on.
`Plaintiff does not allege that she purchased an Amazon Prime membership because of
`Amazon’s “Free Titles” statement. See generally Compl. To the extent that she hopes to rely on
`another customer’s experience with an Audible subscription (see, e.g., id. ¶¶ 17-26), her claim must
`
`AMAZON’S MOTION TO DISMISS
`
`
`
`8
`
`Case No.: 4:22-cv-03986-JSW
`
`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
`27
`28
`
`
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 4:22-cv-03986-JSW Document 19 Filed 08/05/22 Page 14 of 17
`
`
`
`be dismissed. Plaintiffs who seek to serve as class representatives must allege and ultimately prove
`that they personally have been injured, “not that injury has been suffered by other, unidentified
`members of the class to which they belong and which they purport to represent.” Warth v. Seldin,
`422 U.S. 490, 502 (1975).
`to state facts showing reliance on any alleged
`Because Plaintiff has failed
`misrepresentations, the CLRA claim should be dismissed.
`C.
`Plaintiff Fails to State A Claim Under The UCL.
`Plaintiff’s UCL claim fails for reasons similar to the CLRA claim. First, as discussed above,
`the Complaint does not allege that Plaintiff signed up for an Audible subscription or that she ever
`saw any of Amazon’s disclosures. The lack of factual support related to her own Audible
`enrollment is fatal to her claims under the ARL, and therefore to the “unlawful” prong of the UCL.
`Second, Plaintiff’s failure to allege facts related to seeing or relying on any of Amazon’s disclosures
`also violates the causation and resulting injury requirement of the UCL. And, as with the CLRA
`claim, th