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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 1 of 14
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`THE HONORABLE BARBARA J. ROTHSTEIN
`
`UNITED STATES DISTRICT COURT
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`WESTERN DISTRICT OF WASHINGTON
`
`AT SEATTLE
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`MARY AND MATTHEW STREET,
`
`
`Plaintiffs,
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`v.
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`
`
`
`
`
`AMAZON.COM SERVICES, LLC, a
`Delaware Limited Liability Company, and
`AMAZON DIGITAL SERVICES, LLC, a
`Delaware Limited Liability Company,
`
`
`Defendants.
`
` Case No.: 2:21-cv-00912-BJR
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`MOTION TO DISMISS
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`Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants Amazon.com Services, LLC and
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`Amazon Digital Services, LLC respectfully request that the Court dismiss Plaintiffs’ First
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`Amended Class Action Complaint (“FAC”) for failure to state a claim. Pursuant to the Court’s
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`Standing Order for Civil Cases, the parties’ counsel conferred to determine whether Amazon’s
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`motion could be avoided; because it is Amazon’s position that the Streets’ claims all fail as a
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`matter of law, and cannot be salvaged by amendment, the parties were unable to agree on any
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`middle ground that would obviate this Motion.
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`INTRODUCTION
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`Mary and Matthew Street are longtime Amazon customers. They use an Amazon device
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`called the Echo Dot smart-speaker, which the Streets connect to the internet using Wi-Fi or to
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`other devices using Bluetooth. Like most consumers, the Streets have undoubtedly experienced
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`the frustration of situations when their devices lose connection or fail to function properly.
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
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`
`- 1 -
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 2 of 14
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`
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`In September 2019, Amazon publicly announced development of Amazon Sidewalk.
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`Sidewalk is a program that allows low-cost, low-bandwidth, low-power devices—think lights,
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`sensors, pet-trackers—to extend their range by borrowing very small amounts of bandwidth from
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`more powerful Wi-Fi-connected devices. For example, a motion sensor at the end of a long
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`driveway might briefly connect to a neighbor’s Sidewalk-enabled device in order to transmit
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`data. The goal of the program is to enable small “neighbor-created networks” that allow a
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`variety of low-cost devices to perform better. Sidewalk costs the consumer nothing, and the
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`program is entirely voluntary: users may disable Sidewalk on their devices at any time.
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`In June 2021, after nearly two years of extensive publicity and media attention, Amazon
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`launched Sidewalk. Less than a month later, the Streets filed this lawsuit. They seek to
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`represent a nationwide class of every person who has purchased and used a Sidewalk-enabled
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`Echo device. The Streets claim that “Amazon is building an unprecedented national wireless
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`network but making its consumers foot the bill.” FAC ¶ 1. Even if that were true (it is not), the
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`Streets have no viable legal claim because they have suffered no harm. The Streets acknowledge
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`that they can simply turn off Sidewalk (and presumably have done so in light of their claims).
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`And they do not allege any actual harm; they allude to the “potential for overage charges” for
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`excess internet use, but do not allege that such overages have actually occurred (nor is there any
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`credible risk of overages given how little bandwidth Sidewalk uses). Because each of the
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`Streets’ three causes of action requires some form of harm, the Complaint should be dismissed.
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`BACKGROUND
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`In September 2019, Amazon publicly announced that it was developing Sidewalk.
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`See Declaration of Brian Buckley (“Buckley Decl.”), filed in support of this Motion, Ex. A.1
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`
`1 It is well-established that the Court can take judicial notice of press releases and media
`coverage, not for the truth of the statements in those media but for notice purposes. Rule 201 of
`the Federal Rules of Evidence allows the court to judicially notice facts that are not subject to
`reasonable dispute. Fed. R. Evid. 201(b), (d). Facts are not subject to reasonable dispute if they
`“can be accurately and readily determined from sources whose accuracy cannot reasonably be
`questioned.” Fed. R. Evid. 201(b)(2). The court “must take judicial notice if a party requests it
`and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2). Courts
`routinely take judicial notice of publicly available documents such as corporate press releases
`and facts in published news articles. See, e.g., Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458-
`59 (9th Cir. 1995) (taking judicial notice of facts presented in newspaper article); In re Wash.
`FENWICK & WEST LLP
`MOTION TO DISMISS
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`1191 SECOND AVENUE, 10TH FLOOR
`CASE NO.: 2:21-CV-00912-BJR
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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 3 of 14
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`
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`As Amazon explained in that announcement, many devices in our homes rely on Wi-Fi and
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`Bluetooth connections to operate, but those connections only extend so far. That leaves spaces
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`in and around homes for low-cost devices like sensors and lights that can benefit from low-
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`power, low-bandwidth connections. Sidewalk extends the working range of such devices by
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`allowing more powerful Wi-Fi connected devices, like some models of Echo smart-speakers and
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`Ring devices, to share small amounts of bandwidth with Sidewalk-enabled devices nearby. Id.
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`A year later, in September 2020, Amazon updated the public on Sidewalk’s progress.
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`See Buckley Decl., Ex. B. Amazon explained: “Operated by Amazon at no charge to customers,
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`Amazon Sidewalk uses Bluetooth Low Energy (BLE), the 900 MHz spectrum, and other
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`frequencies to simplify new device setup, extend the low-bandwidth working range of devices,
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`and help devices stay online and up-to-date even if they are outside the range of home Wi-Fi.”
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`Id. As Amazon explained further: “Customers will be able to access Sidewalk using two types
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`of devices operating on the network: Sidewalk Bridges and Sidewalk-enabled devices. Sidewalk
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`Bridges, including select Ring Floodlight Cams and Ring Spotlight Cams, are devices that
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`provide connections to Sidewalk. Sidewalk-enabled devices [such as smart lights at the end of
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`your driveway] connect to Sidewalk Bridges to access the network.” Id. Amazon also
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`announced that certain models of Amazon Echo devices would be equipped to act as Sidewalk
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`Bridges. Id.
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`The Streets’ FAC also references an Amazon website—maintained by Ring, which is
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`wholly owned by Amazon—that explains how Sidewalk functions. See FAC, ¶ 25, n.92 (citing
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`Support Center, Amazon Sidewalk, https://support.ring.com/hc/en-us/articles/360032492292-
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`Mut., Inc. Sec., Derivative & ERISA Litig., 259 F.R.D. 490, 495 (W.D. Wash. 2009). Further,
`Plaintiffs themselves cite repeatedly to media coverage of Sidewalk in support of arguments they
`make in the FAC. See, e.g., FAC ¶ 3, n.1.
`2 Under the “incorporation by reference” doctrine, the Court can consider documents “whose
`contents are alleged in a complaint and whose authenticity no party questions, but which are not
`physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). See
`also Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (incorporating by reference complete
`copies of websites where the complaint included only excerpts because “[i]n evaluating the
`context in which the statement appeared, we must take into account ‘all parts of the
`communication that are ordinarily heard or read with it’”) (internal citations omitted).
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
`
`
`- 3 -
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 4 of 14
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`
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`Amazon-Sidewalk-Information (last visited October 27, 2021)). See Buckley Decl., Ex. C. As
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`that website explains, “Sidewalk works by sharing a little bit of your internet bandwidth with
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`your neighbors.” Id. The site also explains that Sidewalk is completely voluntary, costs users
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`nothing to enjoy, does not slow down users’ Internet connections, and “is designed with multiple
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`layers of privacy and security to secure data traveling on the network.” Id. (This negates the
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`Streets’ wholly unsupported and conclusory allegation that Sidewalk poses an “increased risk to
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`the security of their personal data.” FAC ¶ 6).
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`On June 8, 2021, Sidewalk officially launched. FAC ¶ 5. Leading up to the launch, there
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`was substantial media attention and coverage regarding Sidewalk’s functionality. Some of that
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`coverage had a negative slant, wrongly suggesting that Sidewalk was “stealing” customers’
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`internet bandwidth. See, e.g., Associated Press, Own an Echo? Amazon may be helping itself to
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`your bandwidth, N.Y. POST (June 9, 2021), https://nypost.com/2021/06/09/own-an-echo-
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`amazon-may-be-helping-itself-to-your-bandwidth/ (Buckley Decl., Ex. D); Brenda Stolyar, How
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`to check if Amazon Alexa is stealing your internet bandwidth for Sidewalk, MSN.COM (Dec. 6,
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`2020), https://www.msn.com/en-us/news/technology/how-to-check-if-amazon-alexa-is-stealing-
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`your-internet-bandwidth-for-sidewalk/ar-BB1bGj8s (Buckley Decl., Ex. E). But there was
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`positive coverage too, highlighting the benefits of a free, shared, low-power network to make
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`low-cost devices operate more efficiently. See, e.g., Josephine Wolff, Amazon Wants to Connect
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`Your Smart Speaker and Doorbell With Your Neighbor’s. It’s Actually Pretty Cool!, SLATE (June
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`3, 2021), https://slate.com/technology/2021/06/amazon-sidewalk-mesh-network-experiment-
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`privacy.html (Buckley Decl., Ex. F); Michael Bizzaco, Amazon Sidewalk is coming soon.
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`Here’s how it will improve smart home devices, DIGITALTRENDS.COM (May 25, 2021),
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`https://www.digitaltrends.com/home/amazon-sidewalk-and-what-it-means-for-you/
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`(Buckley Decl., Ex. G); Kim Lyons & Russell Brandom, Amazon will launch a new location-
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`tracking mesh network system later this year, THE VERGE (Sept. 21, 2020),
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`https://www.theverge.com/2020/9/21/21448926/amazon-sidewalk-ring-echo-tile-wifi-mesh-ble-
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`location-tracking (Buckley Decl., Ex. H).
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
`
`
`- 4 -
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`

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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 5 of 14
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`The media coverage also explained to consumers that Sidewalk is entirely voluntary,
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`and many articles offered instructions on how to opt out. See, e.g., Laurel Wamsley, Your
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`Amazon Echo Will Share Your Wireless Network With Neighbors, Unless You Opt Out, NAT’L.
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`PUB. RADIO (June 4, 2021), https://www.npr.org/2021/06/02/1002590964/your-amazon-echo-
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`will-share-your-wi-fi-network-with-neighbors-unless-you-opt-out (Buckley Decl., Ex. I);
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`Barbara Krasnoff, How to opt out of (or into) Amazon’s Sidewalk network, MSN.COM (June 1,
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`2021), https://www.msn.com/en-us/news/technology/how-to-opt-out-of-or-into-amazon-e2-80-
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`99s-sidewalk-network/ar-AAKBENZ (Buckley Decl., Ex. J).
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`That extensive media coverage evidently reached the Streets. On July 8, 2021, exactly
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`30 days after Sidewalk launched, the Streets filed this lawsuit. They allege that in October 2018
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`they bought an Echo Dot third generation smart speaker for their home. FAC ¶ 12. They note
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`the benefits of Sidewalk, namely that “Sidewalk works by sharing a little bit of your internet
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`bandwidth with your neighbors. By combining it with bandwidth donated by others in the
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`neighborhood, Sidewalk creates a low-bandwidth, low-power network that can be used by
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`neighbors to help one another in new ways.” Id. ¶ 26. The Streets also acknowledge that they
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`and other consumers are free to opt out of Sidewalk at any time. Id. ¶ 30. Yet, with knowledge
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`of how Sidewalk functions, the Streets continue to use and enjoy their Echo device. Id. ¶ 49.
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`In the FAC, the Streets assert three causes of action against Amazon: (1) violation of the
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`Washington Consumer Protection Act (“CPA”); (2) theft of telecommunication services under
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`RCW § 9A.56.268; and (3) unjust enrichment. As explained below, those claims all fail for
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`various reasons, including that the Streets do not allege that they have been harmed.
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`ANALYSIS
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`At the pleading stage, Rule 12(b)(6) allows the Court to dispense with spurious or
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`legally flawed complaints before the parties begin the expensive and burdensome discovery
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`process, particularly in a putative class action like this one. To survive a Rule 12(b)(6) motion, a
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`complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
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`Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim only has “facial plausibility when the
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
`
`
`- 5 -
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`

`

`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 6 of 14
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`
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`plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`A claim is properly dismissed where, under the applicable law, “the allegations in a
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`complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S.
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`at 558. While the Court must “accept factual allegations in the complaint as true and construe
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`the pleadings in the light most favorable to the nonmoving party,” Manzarek v. St. Paul Fire &
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`Marine Insurance Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (citation omitted), mere “‘labels and
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`conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal,
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`556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Legal conclusions are insufficient but
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`rather must be supported by factual allegations, Kwan v. SanMedica International, 854 F.3d
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`1088, 1096 (9th Cir. 2017), and “conclusory allegations of law and unwarranted inferences are
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`insufficient to defeat a motion to dismiss,” Benavidez v. County of San Diego, 993 F.3d 1134,
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`1145 (9th Cir. 2021) (quoting Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004)).
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`Importantly—and particularly relevant here—a plaintiff must present “more than an
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`unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678.
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`I.
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`The Streets Have Not Adequately Alleged A CPA Claim.
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`To state a claim under the CPA, a plaintiff must establish (1) an unfair or deceptive act
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`or practice, (2) occurring in trade or commerce, (3) public interest impact, (4) injury to Plaintiffs’
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`business or property, and (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title
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`Ins. Co., 105 Wash. 2d 778, 780, 719 P.2d 531 (1986). “If any element is not satisfied, there can
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`be no successful CPA claim.” Robinson v. Avis Rent A Car Sys., Inc., 106 Wash. App. 104, 114,
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`22 P.3d 818 (2001); accord Nguyen v. Doak Homes, Inc., 140 Wash. App. 726, 733, 167 P.3d
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`1162 (2007). Here, the FAC fails to adequately plead a violation of Washington’s CPA because
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`the Streets have not alleged either an injury to “business or property” or an “unfair or deceptive
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`[] practice[].” See RCW §§ 19.86.020, 19.86.090.
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`A.
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`Plaintiffs Suffered No Cognizable Injury Under The CPA.
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`To recover under the CPA, “a plaintiff must suffer [an] injury to his ‘business or
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`property.’” Keyes v. Bollinger, 31 Wash. App. 286, 295, 640 P.2d 1077 (1982). The injury to
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
`
`
`- 6 -
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 7 of 14
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`business or property is “a crucial element of a CPA claim.” Cousineau v. Microsoft Corp., 992
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`F. Supp. 2d 1116, 1128 (W.D. Wash. 2012). Mere allegations of “possible injury” to business or
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`property at “some undefined point in the future” do not suffice. Alvarez v. Target Corp., No. 13-
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`CV-0150-TOR, 2013 WL 4734123, at *7 (E.D. Wash. July 10, 2013). Instead, a plaintiff must
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`show “specific facts demonstrating that” the plaintiff “actually sustained injury.” Cousineau,
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`992 F. Supp. 2d at 1128; see also Hangman, 105 Wash. 2d at 792 (holding that the “injury
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`involved need not be great, but it must be established”).
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`The FAC omits “specific facts demonstrating” that the Streets “actually sustained injury.”
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`They do not allege that their Echo device shared any of their internet bandwidth with another
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`Sidewalk-enabled device, much less that they actually incurred an overage charge as a result.
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`At most, the Streets claim that Sidewalk “creat[es] the potential for overage charges.” FAC ¶ 29
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`(emphasis added). The Streets claim that the FAC is based on their “personal knowledge as to
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`their own experiences” (id. at 1), but those unspecified “experiences,” whatever they might be,
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`do not include suffering any actual harm on account of Sidewalk. An entirely theoretical,
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`inchoate risk of future harm is plainly insufficient to state a CPA claim.
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`The court in Cousineau dismissed a CPA claim for a comparable failure to allege injury.
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`There, a smartphone user claimed that Microsoft violated the CPA by transmitting geolocation
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`data from the smartphone even after she disabled that function. 992 F. Supp. 2d at 1128. The
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`plaintiff claimed that the unwanted transmission “caused a diminution” in her data plan. Id.
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`But she failed to allege that she had a finite data plan that exposed her to overage charges, which
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`left the allegations “too nebulous to demonstrate” that she “actually sustained injury.” Id. The
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`Streets’ allegations suffer from the same fatal flaw: they do not allege that their home internet
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`plan with Comcast imposes any bandwidth or data cap. See FAC ¶ 13. And the FAC suffers
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`from a more glaring and fundamental deficiency. The Streets claim that Amazon diminished
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`“the value of their personal Internet bandwidth” (id. ¶ 55), whatever that means, without ever
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`alleging that their bandwidth was used to transmit any Sidewalk traffic at all. Absent such an
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`allegation, Plaintiffs plainly fail to allege any actual injury under the CPA.
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
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`
`- 7 -
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`FENWICK & WEST LLP
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`SEATTLE, WASHINGTON 98101
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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 8 of 14
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`The Streets’ only additional allegation of injury is a passing reference to the value of
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`their “time spent learning about” and “disabling” Sidewalk. See id. But Washington law is clear
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`that only injuries to business or property, not personal injuries, are cognizable under the CPA.
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`See Keyes, 31 Wash. App. at 295. Specifically, “mental distress, embarrassment, and
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`inconvenience,” without more, are not compensable under the Consumer Protection Act. Gragg
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`v. Orange Cab Co., 942 F. Supp. 2d 1111, 1118 (W.D. Wash. 2013) (emphasis added). The time
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`the Streets spent reading about and disabling Sidewalk is not compensable harm for CPA
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`purposes; if anything, it reinforces that the Streets saw the extensive coverage about Sidewalk
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`and took steps to avoid any real harm.
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`The context and timing of the Streets’ lawsuit also suggest that they planned the suit
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`before Sidewalk launched, further undermining any notion that they were harmed. Notably,
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`according to public sources, it appears that the Streets are both lawyers.3 The FAC references
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`and relies on a Washington Post article discussing the upcoming launch of Sidewalk (which, as
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`set forth above, had been very widely publicized). FAC ¶ 3, n.1. The Sidewalk program
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`launched on June 8, 2021. Id. ¶ 5. Just a week later, on June 16, 2021, the Streets or their
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`lawyers accessed the Amazon website describing how Sidewalk works, including the fact that it
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`is entirely voluntary and users are free to opt out. See id. ¶ 25 n.9 (noting the website was last
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`accessed June 16, also suggesting it might have been accessed earlier). The Streets then filed
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`this lawsuit just three weeks later, on July 8. At a minimum, if the Streets suffered any harm at
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`all—which they conspicuously do not allege—it had to occur in the week between June 8 and
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`June 16, after which date they would have known to simply disable the Sidewalk feature on their
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`Echo device. But given how quickly the Streets apparently engaged lawyers, investigated their
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`claims, and prepared and filed a complaint, it is plausible and reasonable to conclude that the
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`Streets and their counsel were well aware that Sidewalk was coming; knew how to disable it and
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`3 See https://www.foleymansfield.com/professionals/mstreet/ (last visited October 27, 2021)
`(identifying “Mary J. Street” as an attorney in the Miami office of Foley & Mansfield) (Buckley
`Decl., Ex. K); https://downslawgroup.com/attorneys/matthew-street/ (last visited October 27,
`2021) (identifying “Matthew Street” as an attorney with “The Downs Law Group,” which has its
`“Main Office” in Miami’s Coconut Grove neighborhood) (Buckley Decl., Ex. L).
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
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`- 8 -
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 9 of 14
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`in fact did so (see id. ¶ 55, alleging “time spent disabling the Sidewalk function”); and now fail
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`to plead any bandwidth overages or other cognizable harm because they did not in fact suffer
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`any. In all events, whether this is a lawyer-driven lawsuit not genuinely aimed at addressing any
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`actual harm is ultimately irrelevant; the fact that the Streets have not alleged any actual harm
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`defeats their CPA claim.
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`B.
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`Amazon Did Not Commit Any “Unfair or Deceptive Acts.”
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`The Streets’ failure to allege any actual injury dooms their CPA claim. But they also fail
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`to adequately allege any unfair or deceptive acts or practices by Amazon. Although the CPA
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`does not define an unfair or deceptive act, “implicit in that term is ‘the understanding that the
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`actor misrepresented something of material importance.’” Stephens v. Omni Ins. Co., 138 Wash.
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`App. 151, 166, 159 P.3d 10 (2007) (internal quotations omitted) (emphasis in original). The
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`FAC does not allege such a misrepresentation, and the public sources the Streets themselves rely
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`on undermine that claim.
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`Plaintiffs’ CPA claim sounds in fraud and therefore is subject to the heightened pleading
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`standards of Fed. R. Civ. P. 9(b). Rule 9(b) requires that when fraud is alleged, “a party must
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`state with particularity the circumstances constituting fraud.” Id. To satisfy Rule 9(b), a fraud
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`claim must be accompanied by “the who, what, when, where, and how” of the misconduct.
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`Nemykina v. Old Navy, LLC, 461 F. Supp. 3d 1054, 1059 (W.D. Wash. 2020). It is not necessary
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`for a plaintiff to specifically label a cause of action as “fraud”; cases that are “grounded in fraud”
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`or “sound in fraud” still must satisfy the Rule 9(b) requirements. Fid. Mortg. Corp. v. Seattle
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`Times Co., 213 F.R.D. 573, 575 (W.D. Wash. 2003). Any claim relying on a “unified course of
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`fraudulent conduct” is, by definition, “grounded in fraud.” See, e.g., Hoefs v. Sig Sauer Inc., No.
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`3:20-cv-05173-RBL, 2020 WL 3488155, at *1 (W.D. Wash. June 26, 2020); see also Nemykina,
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`461 F. Supp. 3d at 1058 (“While not all claims brought under the Washington CPA must be pled
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`with the specificity prescribed by Rule 9(b), CPA claims that allege and depend upon a ‘unified
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`course of fraudulent conduct’ as the basis of the claims ‘sound in fraud,’ and must be averred
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`with particularity.”).
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
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`
`- 9 -
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 10 of 14
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`The Streets’ CPA claim plainly rests on allegations of a “unified course of fraudulent
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`conduct.” They allege that Amazon “falsely claim[s]” and “misrepresents that its consumers
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`are voluntarily sharing and donating their Internet bandwidth,” FAC ¶¶ 50, 51, which the Streets
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`characterize as “unfair, deceptive, and/or fraudulent business practices,” id. ¶ 6 (emphasis
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`added). They also allege that Amazon “fails to disclose” that “Internet service providers charge
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`fees when their customers exceed their bandwidth” and “that its use of customer bandwidth may
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`result in such overcharge fees.” Id. ¶ 51. Because the Streets “specifically allege” that Amazon
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`engaged in “fraudulent conduct” by intentionally misrepresenting and omitting material
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`information about Sidewalk to steal customers’ bandwidth, their claims are subject to the
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`heightened pleading standards of Rule 9(b). Goodman v. HTC Am., Inc., No. C11-1793MJP,
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`2012 WL 2412070, at *16 (W.D. Wash. June 26, 2012).
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`The Streets fail to plead fraud with the requisite particularity. Nowhere in the FAC do
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`they plead the “who, what, when, where, and how” of Amazon’s alleged misrepresentations or
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`omissions. They include no specifics to support the claim that they were deceived. Nor do they
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`allege what they saw, how or when they encountered any alleged misrepresentations, or how that
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`influenced their decision-making. See Minnick v. Clearwire US, LLC, 683 F. Supp. 2d 1179,
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`1188 (W.D. Wash. 2010) (dismissing CPA claim based on false misrepresentations where
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`“[n]one of the Plaintiffs identify the relied-upon statements”); Donohue v. Apple, Inc., 871 F.
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`Supp. 2d 913, 924 (N.D. Cal. 2012) (finding that “[a] plaintiff asserting causes of action for
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`fraudulent misrepresentation under the UCL, CLRA or WCPA must allege that he was exposed
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`to a particular representation that is claimed to be deceptive”; dismissing CPA claim for
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`plaintiff’s failure to allege that he relied on alleged misrepresentation in making his purchase).
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`The Streets’ conclusory allegations do not give “notice of the particular conduct” so that Amazon
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`“can defend against the charge.” Hoefs, 2020 WL 3488155, at *4 (dismissing misrepresentation
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`claim as not adequately pled). The Streets’ vague and unsupported allegation about the
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`purported risk of “bandwidth overages” also cannot support a claim. There are dozens of ISPs
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`across the U.S., each with their own terms of use, and undoubtedly some with bandwidth caps
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
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`- 10 -
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`

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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 11 of 14
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`and some without. More to the point, the Streets have not plausibly alleged that there is any real
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`risk of Sidewalk causing overages given the tiny amount of bandwidth it uses. FAC ¶ 27.
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`But even if Rule 9(b) did not apply here, the Streets still have not alleged sufficient
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`facts to support a CPA claim. Instead, they generalize that Amazon purportedly “enabled the
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`Sidewalk Devices to share consumers’ Internet bandwidth without prior consent” or “adequate
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`notice.” Id. ¶ 50. But the Streets were hardly blindsided when Amazon activated Sidewalk. As
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`noted above, they were exposed to media coverage about the Sidewalk program and reference it
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`in their FAC. Id. ¶ 3, n.1. Within a week of Sidewalk’s launch, the Streets or their lawyers were
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`perusing an Amazon website explaining how to opt out of the feature. Id. ¶ 25, n.9; Buckley
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`Decl., Ex. C. And the Streets allegedly spent time disabling Sidewalk, FAC ¶ 55—while also
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`actively preparing to sue Amazon—so if they suffered any genuine confusion or surprise, it was
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`exceptionally short-lived.
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`To represent a class, of course, the Streets first must have viable claims of their own.
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`See, e.g., Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) (if
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`plaintiff has no claim “she cannot represent others who may have such a claim, and her bid to
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`serve as a class representative must fail”). The Streets have not pled a viable Washington CPA
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`claim because they were neither deceived nor harmed with respect to Sidewalk. As addressed
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`below, their other claims are similarly flawed and must be dismissed.
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`II.
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`The Streets Have Not Adequately Alleged Theft Of Telecommunications Services.
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`The Streets’ second cause of action accuses Amazon of “theft of telecommunication
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`services” under RCW §§ 9A.56.262, .268. That statute was enacted in 1995 but, to Amazon’s
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`knowledge, has never been construed in any civil case.4 Under the plain language of the statute,
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`however, the Streets must prove that Amazon “knowingly and with intent to avoid payment …
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`4 The single unpublished decision that even references RCW 9A.56.262 did so while applying a
`different criminal theft statute. See State v. Grijalva, 183 Wash. App. 1021, 2014 WL 4437680,
`at *2-3 (Sept. 9, 2014) (applying RCW 9A.56.040, the second-degree theft statute). The court’s
`commonsense observation about RCW 9A.56.262—i.e., that “telecommunication services” are
`“services” that are capable of being stolen—has no bearing in this case. The issue here is not
`whether internet bandwidth could potentially be “obtained” illegally. The issue is that Amazon
`did not obtain anything from the Streets in violation of the statute.
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`MOTION TO DISMISS
`CASE NO.: 2:21-CV-00912-BJR
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`- 11 -
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`FENWICK & WEST LLP
`1191 SECOND AVENUE, 10TH FLOOR
`SEATTLE, WASHINGTON 98101
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`Case 2:21-cv-00912-BJR Document 31 Filed 10/29/21 Page 12 of 14
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`[u]se[d] a telecommunication device to obtain telecommunication services without having
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`entered into a prior agreement with a telecommunication service provider to pay for the
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`telecommunication services.” RCW § 9A.56.262. That claim fails for several reasons.
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`First, the Streets do not allege that their Echo device actually shared any of their
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`internet bandwidth with any of their neighbors’ Sidewalk-enabled devices. Without such an
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`allegation, no “telecommunication services” were “obtained” by anyone. If nothing is stolen,
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`there can be no theft.
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`Second, if the Streets’ Echo device did in fact share their internet bandwidth with a
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`neighbor’s Sidewalk-enabled device (which, again, the Streets do not allege), Amazon did not
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`“obtain” that bandwidth, the neighbor did. As Amazon explained, “Sidewalk works by sharing a
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`little bit of your internet bandwidth with your neighbors. By combining it with bandwidth
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`donated by others in the neighborhood, Sidewalk creates a low-bandwidth, low-power network
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`that can be used by neighbors to help one another in new ways.” Buckley Decl., Ex. C. Amazon
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`receives nothing in that voluntary exchange of bandwidth between users.
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`Third, obtaining telecommunications services only violates the statute if it is done
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`“without having entered into a prior agreement with a telecommunication service provider to pay
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`for the telecommunication services.” RCW § 9A.56.262 (emphasis added). The Streets are not a
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`telecommunication service provider. Their provider is Comcast. FAC ¶ 13. If Amazon were
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`truly stealing bandwidth without paying for it, Comcast might have a claim but the Streets
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`plainly would not.
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`Fourth, the statute requires intent. Amazon does not obtain bandwidth “with intent to
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`avoid payment.” Sidewalk users pay their telecommunication service providers for internet
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`bandwidth, and are generally free to share it with family, friends, and guests. As such,