Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`
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`Plaintiffs,
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`v.
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`No. 2:22-cv-800-BJR
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`ORDER GRANTING DEFENDANTS’
`MOTION TO DISMISS
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`JAMES GRAY and SCOTT HORTON,
`individually and on behalf of others similarly
`situated,
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`AMAZON.COM, INC., a Delaware
`corporation, and AMAZON.COM SERVICES
`LLC, a Washington limited liability company
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`
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`Defendants.
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`I.
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`INTRODUCTION
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`Plaintiffs James Gray and Scott Horton (“Plaintiffs”) brought this putative class action
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`against Defendants Amazon.com, Inc. and Amazon.com Services LLC (together, “Amazon” or
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`“Defendants”), asserting various claims arising from Amazon’s alleged use of voice data collected
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`through its Alexa digital assistant software for purposes of targeted advertising. Presently before
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`the Court is Defendants’ motion to dismiss Plaintiffs’ Complaint pursuant to Rule 12(b)(6) of the
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`Federal Rules of Civil Procedure. Dkt. 37. Having reviewed the pleadings, the record of the case,
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`and the relevant legal authorities, the Court GRANTS the motion. The Court’s reasoning is set
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`forth below.
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`ORDER - 1
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 2 of 19
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`II.
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`BACKGROUND1
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`A.
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`Factual Background
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`1.
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`Alexa
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`Amazon’s Alexa is a voice-activated digital assistant software that runs on various devices
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`sold by Amazon – including the family of “Echo” smart speakers – and other companies with
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`which Amazon partners. Compl. ¶¶ 15-17. Alexa-enabled devices, all of which contain a
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`microphone, perform a wide range of functions that are prompted by users’ voiced commands and
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`questions, such as turning on a television program, obtaining the day’s weather forecast, and
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`making purchases from Amazon.com. Id. ¶¶ 18-19. To interact with Alexa, a user must first say
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`the “wake word” – which is “Alexa” – before speaking aloud their inquiry or command (e.g., “what
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`is the weather in Seattle tomorrow?”). Id. ¶ 18. Alexa will then respond with an audible answer
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`or by performing the user’s command. Id. For example, to place an order for orange juice on
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`Amazon.com, a user may say, “Alexa, order more orange juice.” Id. ¶ 19. Today, there are more
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`than 40 million Alexa-enabled devices operating within the United States. Id. ¶¶ 16, 20.
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`2.
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`Terms Governing Alexa’s Use
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`In addition to the Alexa Terms of Use (the “Alexa Terms”), which contain the primary
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`terms and conditions governing Alexa’s use (Declaration of Brian Buckley (Buckley Decl., Dkt.
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`38), Ex. A), Amazon relies on numerous other policies to set forth terms addressing specific
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`aspects of Alexa and Alexa-enabled devices. Compl. ¶ 35.2 Plaintiffs point to the “Alexa and
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`Alexa Device FAQs” (the “Alexa FAQs”) and the Amazon Device Terms of Use (the “Amazon
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`1 The facts recited below are taken from Plaintiffs’ Complaint (“Compl.,” Dkt. 1). For the purposes of the present
`motion, the Court takes the factual allegations in the Complaint as true.
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`2 While Plaintiffs do not identify them all, the Complaint alleges that “Amazon purports to bind Alexa users to terms
`and conditions in at least 13 separate documents.” Compl. ¶ 35 (emphasis removed).
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`ORDER - 2
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 3 of 19
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`Device Terms”) as explaining, in part, the features and functionality of Alexa and Alexa-enabled
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`devices. The Alexa FAQs state, in relevant part:
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`Alexa uses your voice recordings and other information, including from third-party
`services, to answer your questions, fulfill your requests, and improve your
`experience and our services. We associate your requests with your Amazon
`account to allow you to review your voice recordings, access other Amazon
`services (e.g. so you can ask Alexa to read your Kindle books and play audiobooks
`from Audible), and to provide you with a more personalized experience.
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`Id. ¶ 36. Similarly, the Amazon Device Terms explain:
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`Your Amazon Device may have features that allow you to access Alexa voice
`services or otherwise use your voice to perform certain tasks, such as check the
`weather, add a calendar entry, perform a search, or operate other connected
`products. When you use voice services, we may process your voice input and other
`information (such as location) in the cloud to respond to your requests and to
`improve your experience and our products and services.
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`Id. ¶ 38.
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`The Alexa Terms expressly incorporate the Amazon.com Privacy Notice (the “Privacy
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`Notice”),3 which describes Amazon’s practices of collecting and using personal information across
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`its services and products. Buckley Decl., Ex. B. That notice, which is discussed in greater detail
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`below, states in its preamble: “We know that you care how information about you is used and
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`shared, and we appreciate your trust that we will do so carefully and sensibly.” Compl. ¶ 113;
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`Buckley Decl., Ex. B at 1. The Privacy Notice also states that Amazon “use[s] your personal
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`information to display interest-based ads for features, products, and services that might be of
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`interest to you.” Buckley Decl., Ex. B. at 2 (emphasis added).4
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`3 The Alexa Terms’ preamble states that the Alexa Terms and the Privacy Notice, among other policies, comprise the
`“Agreement” to which users must agree as a condition to using Alexa. Buckley Decl., Ex. A at 1. That preamble
`further directs users to review the Privacy Notice before using Alexa. Id. (“Before using Alexa, please read … the []
`Privacy Notice ….”).
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`4 Plaintiffs do not object to the Court’s consideration, pursuant to the “incorporation by reference” doctrine, of exhibits
`submitted by Defendants reflecting Amazon webpages containing full versions of the Alexa Terms and the Privacy
`Notice. Buckley Decl., Exs. A-B; see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a document
`is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively
`ORDER - 3
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 4 of 19
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`3.
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`Amazon’s Public Statements Concerning its Use of Voice Recordings
`and Plaintiffs’ Allegations as to Subsequent Revelations
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`Plaintiffs allege that Amazon, over the course of several years, has consistently denied that
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`it collects and uses Alexa users’ voice data in order to serve targeted advertisements to them.
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`Plaintiffs point, specifically, to three separate statements, made by Amazon spokespersons
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`between 2017 and 2019 in response to media reports about Alexa, that Amazon does “not use
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`customers’ voice recordings for targeted advertising.” Compl. ¶ 26 (2017 statement to local news
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`station); id. ¶ 27 (2018 statement responding to New York Times article); id. ¶ 28 (2019 statement
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`responding to NBC report). Plaintiffs also point to a 2020 on-air CNBC interview, during which
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`Amazon’s Senior Vice President of Devices and Services stated, in response to a question about
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`whether Amazon was using Alexa-generated data for advertising purposes, that Amazon was “not
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`experimenting with [targeted advertising] yet.” Id. ¶ 29.
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`Plaintiffs claim that, contrary to Amazon’s repeated denials, Amazon has been employing
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`Alexa-captured voice data in its Demand Side Platform (“DSP”), which Plaintiffs allege is a
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`service Amazon offers to third-party advertisers that “leverage[s] all of the data Amazon collects
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`about its customers in order to sell targeted advertising … based on that data.” Compl. ¶¶ 45-50.5
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`Plaintiffs allege that the truth was revealed by a research paper entitled, Your Echoes are Heard:
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`Tracking, Profiling, and Ad Targeting in the Amazon Smart Speaker Ecosystem (the “Research
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`Paper”), that was published in April 2022 by a group of university researchers. See Umar Iqbal,
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`et al., Your Echos are Heard: Tracking, Profiling, and Ad Targeting in the Amazon Smart Speaker
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`to the document or the document forms the basis of the plaintiff's claim.”). Plaintiffs do object, on the other hand, to
`the Court’s consideration of an exhibit reflecting a separate Amazon webpage, entitled “Interest-Based Ads,” that
`describes Amazon’s practices as to interest-based advertising. See Buckley Decl., Ex. C. The Court need not
`determine whether that exhibit may properly be considered given that it is not necessary to grant Defendants’ motion.
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`5 According to Plaintiffs, Amazon, through its DSP, auctions off advertising space – both on Amazon’s platforms and
`on third-party websites – to advertisers through an assortment of ad exchanges. Compl. ¶¶ 50-68.
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`ORDER - 4
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 5 of 19
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`Ecosystem, ALEXAECHOS.COM, https://arxiv.org/pdf/2204.10920.pdf (rev. May 11, 2022). The
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`researchers conducted a series of experiments in which they exposed different “interest personas”
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`(i.e., simulated persons having unique interests, such as fashion) to Alexa through separate Echo
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`devices, and then observed, among other things, the advertisements displayed to each of them
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`relative to those displayed to simulated “control personas.” Id. While the Research Paper does
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`not find any evidence that Amazon is sharing voice recordings or transcripts thereof with
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`advertisers, it concludes that “Amazon processes voice data to infer user interests and uses it to
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`serve targeted ads on-platform (Echo devices) as well as off-platform (web).” Id. at 1, 11-12, 16.
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`Following the Research Paper’s publication, Amazon issued a press statement outlining its
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`use of transaction data generated through Alexa for purposes of targeted advertising. Compl. ¶ 32.
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`The statement explained, by way of example:
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`[S]imilar to what you’d experience if you made a purchase on Amazon.com or
`requested a song through Amazon Music, if you ask Alexa to order paper towels or
`to play a song on Amazon Music, the record of that purchase or song play may
`inform relevant ads shown on Amazon or other sites where Amazon places ads.
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`Id. Thus, Defendants’ position is that Amazon uses the records of Alexa users’ transactions to
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`inform advertisements displayed to them, but does not use recordings of Alexa users’ questions or
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`commands – i.e., their “voice recordings” – for that purpose.
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`B.
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`Procedural Background
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`Plaintiffs, both of whom own and use Alexa-enabled devices, filed this lawsuit on June 8,
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`2022 as a class action on behalf of “[a]ll persons residing in the United States who are registered
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`users of an Alexa-Enabled Device and have been served targeted advertisements by Amazon
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`through its DSP.” Compl. ¶ 94. On August 12, 2022, Defendants moved to dismiss the Complaint
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`pursuant to Rule 12(b)(6) of the Rules of Federal Procedure. Plaintiffs opposed the motion
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`(Dkt. 41 (Opp.”)), and Defendants replied (Dkt. 43 (“Rep.”)).
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`ORDER - 5
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 6 of 19
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`III.
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`STANDARD OF REVIEW
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`A motion to dismiss for failure to state a claim under Rule 12(b)(6) is properly granted if
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`the complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief
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`that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must plead “factual content that allows the
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`court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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`“A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by
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`lacking sufficient facts alleged under a cognizable legal theory.” Woods v. U.S. Bank N.A., 831
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`F.3d 1159, 1162 (9th Cir. 2016). When considering a motion to dismiss under Rule 12(b)(6),
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`courts must accept the factual allegations in the complaint as true and construe such allegations in
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`the light most favorable to the plaintiff. Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 886-
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`87 (9th Cir. 2018).
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`IV. DISCUSSION
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`Plaintiffs assert numerous causes of action arising from what Plaintiffs allege is Amazon’s
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`unauthorized use of Alexa-captured “voice data”6 for purposes of targeted advertising.
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`Specifically, Plaintiffs assert claims for (1) breach of the implied covenant of good faith and fair
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`dealing; (2) violation of Washington’s Consumer Protection Act, RCW § 19.86 et seq.;
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`(3) intrusion upon seclusion; and (4) infringement of personality rights in violation of
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`6 Defendants take issue with Plaintiffs’ use of the term “voice data,” arguing that it is a “vague term” that potentially
`captures both “voice recordings” – which, according to Defendants, is a more commonly used term encompassing the
`content of what users say to Alexa – as well as transaction records (e.g., purchases made or songs played) that are
`ultimately derived from what users say to Alexa. Mot. at 8; Rep. at 2. For the purposes of this motion, the Court will
`use the term, “voice data,” to mean anything directly reflecting the content of what users utter to their Alexa-enabled
`devices, and not the transaction records derived from those utterances.
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`ORDER - 6
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 7 of 19
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`Washington’s Personality Rights Act, RCW § 63.60.010 et seq. Compl. ¶¶ 103-165. The Court
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`will review each claim in turn.
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`A.
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`Claim for Breach of the Implied Covenant of Good Faith and Fair Dealing
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`“Under Washington law, [t]here is in every contract an implied duty of good faith and fair
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`dealing that obligates the parties to cooperate with each other so that each may obtain the full
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`benefit of performance.” Rekhter v. State, Dep’t of Soc. & Health Servs., 180 Wash. 2d 102, 112-
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`13, 323 (Wn. Sup. Ct. 2014) (citation and quotation marks omitted); see 134th Street Lofts, LLC
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`v. iCap Northwest Opportunity Fund, LLC, 15 Wash. App. 2d 549, 566 (Wn. Ct. App. 2020) (“The
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`implied duty of good faith and fair dealing protects a party’s justified expectations in entering the
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`agreement.”). That duty, however, does not create “a free-floating duty of good faith unattached
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`to the underlying legal document,” but instead “exists only in relation to performance of a specific
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`contract term.” Badgett v. Sec. State Bank, 116 Wash. 2d 563, 570 (Wn. Sup. Ct. 1991). Moreover,
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`the duty cannot “contradict express terms in a contract,” and cannot be used to “interpret[] …
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`contractual provisions in a manner that expands the scope of their plain meaning.” 134th Street
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`Lofts, 15 Wash. App. 2d at 564-65.
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`Plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing is
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`premised on the theory that Amazon, by using Alexa-captured voice data to inform targeted
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`advertising – a practice alleged to have been revealed by the Research Paper – breached “both the
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`spirit and letter of the bargain that Alexa users agreed to” through the various policies governing
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`Alexa’s use. Opp. at 8-9; see Compl. ¶¶ 116-20. Plaintiffs point, specifically, to two aspects of
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`those policies that, they contend, implied a duty to refrain from the alleged advertising practice.
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`The first is the descriptions of Alexa’s functionality, as set forth in the Alexa FAQs and the
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`Amazon Device Terms (see supra at 3), and the second is Amazon’s stated commitment to privacy
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`ORDER - 7
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 8 of 19
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`in the Privacy Notice’s preamble. See Compl. ¶ 113 (“We know that you care how information
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`about you is used and shared, and we appreciate your trust that we will do so carefully and
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`sensibly.”). According to Plaintiffs, those policies’ omission of any reference to advertising, and
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`expressed privacy commitment, conveyed “promises that Amazon only uses Alexa users’ voice
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`data
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`in
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`connection with
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`the
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`execution
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`of Alexa
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`functions.”
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` Compl.
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`¶ 117. Defendants, in moving to dismiss the claim, argue that the portions of the policies to which
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`Plaintiffs refer do not create a duty on Amazon’s part not to engage in targeted advertising. To
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`the contrary, the Privacy Notice, in fact, disclosed it. Mot. at 5-6.
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`The Court finds that the applicable policies do not create any implied duty on Amazon’s
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`part to refrain from using Alexa-captured voice data to inform targeted advertisements. The
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`Privacy Notice preamble, to start, simply expresses a generic aspiration to use information
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`“carefully and sensibly.” The Alexa FAQs and the Amazon Device Terms, for their part, simply
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`describe Alexa’s general features and functionality, and neither state nor imply that such
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`descriptions set forth an exhaustive list of functions limited to fulfilling users’ requests (e.g.,
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`ordering orange juice). See supra at 3.7 Indeed, those descriptions’ additional (and broad)
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`reference to improving Amazon’s services indicates that fulfilling users’ requests is not the only
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`contemplated use of their voice data. See Compl. ¶ 36 (Alexa FAQs stating that “Alexa uses []
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`voice recordings … to answer [users’] questions, fulfill [users’] requests, and improve [users’]
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`experience and our services.” (emphasis added)); id. ¶ 38 (Amazon Device Terms stating that
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`Amazon “may process [users’] voice input … to respond to [their] requests and to improve [their]
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`7 Although the Court questions whether the Alexa FAQs is adequately alleged by Plaintiffs to have been binding in
`the absence of any allegation or explanation as to how it constitutes or becomes a part of a contract, see, e.g., Mills v.
`Bank of Am., N.A., No. 3:14-cv-05238, 2014 WL 4202465, at *5 (W.D. Wash. Aug. 22, 2014) (rejecting plaintiff’s
`“novel claim” that website FAQ was incorporated into contract), the Court assumes that it is given that Defendants do
`not dispute it.
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`ORDER - 8
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 9 of 19
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`experience and [Amazon’s] products and services.” (emphasis added)). Plaintiffs’ attempt to read
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`into these policies a specific promise not to use voice data for advertising purposes would, in effect,
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`create a “free-floating duty” untethered to the language of the policies. See Badgett, 116 Wash.
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`2d at 570.
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`Moreover, the use of voice data for advertising purposes is contemplated in the applicable
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`policies. The Alexa Terms – which expressly incorporate the Privacy Notice (see supra at 3 n.3)
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`– state that Amazon “processes and retains [users’] Alexa Interactions, such as [their] voice
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`inputs,” and that Amazon will handle “information about [users’] use of Alexa [and] Alexa
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`Interactions … in accordance with the [] Privacy Notice.” Buckley Decl., Ex. A at 1, 3. The
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`Privacy Notice, in turn, states – in a section entitled, “For What Purposes Does Amazon Use Your
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`Personal Information?” – that Amazon “use[s] your personal information to display interest-based
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`ads for features, products, and services that might be of interest to you.” Buckley Decl., Ex. B
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`at 2 (emphasis added).8 The Privacy Notice makes sufficiently clear that voice data falls within
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`the scope of “personal information.” In particular, the first page of that policy explains that the
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`“personal information” collected by Amazon includes “information about [users’] interaction with
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`content and services available through Amazon Services,” and a list of “Examples of Information
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`Collected” includes “voice recordings when you speak to Alexa” and information provided “when
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`you … talk to or otherwise interact[s] with our Alexa Voice service.” Id., Ex. B at 1, 5. Defendants
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`deny that Amazon is, in fact, collecting and processing Alexa-captured voice data in order to
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`inform interest-based advertisements. According to Defendants, Amazon only gleans information
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`8 In a separate section entitled, “What about Advertising?” the Privacy Notice further explains that Amazon
`“provide[s] ad companies with information that allows them to serve you with more useful and relevant Amazon ads,”
`and directs users to a separate Amazon webpage that explains “how to opt-out of interest-based advertising.” Buckley
`Decl., Ex. B at 3.
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`ORDER - 9
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 10 of 19
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`from Alexa users’ transactions (e.g., records of purchases made or songs played), much the same
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`as any individual’s transactions on a website. However, even assuming the truth of Plaintiffs’
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`allegations that Amazon is using voice data for advertising purposes, that use would be
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`contemplated in – and permitted by – the applicable policies.
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`Plaintiffs argue that the disclosures contained in the Privacy Notice are, regardless of their
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`contents, irrelevant because Plaintiffs were not on notice of the Alexa Terms or the Privacy Notice,
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`and those policies are therefore not binding on them. Opp. at 6-7. Plaintiffs contend that they
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`could not have been on notice of the Privacy Notice, in particular, because it is posted on a webpage
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`separate from where “any user would most obviously expect to find such information,” and is
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`accessible only by hyperlink. Opp. at 6. Plaintiffs’ notice argument lacks merit. The Complaint
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`extensively references the Alexa Terms and the Privacy Notice, and premises Plaintiffs’ claim on
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`Amazon’s alleged breach of the Privacy Notice. See, e.g., Compl. ¶¶ 37, 113. Nowhere do
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`Plaintiffs allege that they did not find these policies or otherwise lacked notice of them. See, e.g.,
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`In re Nexus 6P Prod. Liab. Litig., 293 F. Supp. 3d 888, 944 (N.D. Cal. 2018) (rejecting argument
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`that plaintiffs lacked notice of disclaimer because they “acknowledge[d] the existence of [the]
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`disclaimer and the manner in which it is presented” and “do not otherwise allege that they did not
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`see or understand the disclaimer”).
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`Moreover, Plaintiffs have each registered four Alexa-enabled devices and used them
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`extensively for years. See Compl. ¶¶ 84-86, 89-91. Plaintiffs cannot now credibly claim that they
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`were left unable to find the Alexa Terms, the primary policy governing Alexa’s use, or the Privacy
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`Notice as expressly incorporated therein. See, e.g., Garner v. Amazon.com, Inc., No. 21-cv-0750,
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`2022 WL 1443680, at *7 (W.D. Wash. May 6, 2022) (“Plaintiffs apparently activated their [Alexa]
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`devices, thereby indicating consent to the recording of future communications.”); Wilcosky v.
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`ORDER - 10
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 11 of 19
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`Amazon.com, Inc., 517 F. Supp. 3d 751, 766 (N.D. Ill. 2021) (plaintiff consented to the Alexa
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`Terms by registering his Alexa-enabled devices). Contrary to Plaintiffs’ argument that the Privacy
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`Notice was “obscured” and “segregated” through hyperlinks, the Alexa Terms’ preamble
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`prominently references and links to the Privacy Notice, and expressly states that it is integral to
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`the terms governing Alexa’s use. See supra at 3 n.3; see also Buckley Decl., Ex. A
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`at 1 (“Before using Alexa, please read these Alexa Terms of Use, including the … Privacy
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`Notice”). In sum, given Plaintiffs’ registration and extensive use of their Alexa-enabled devices,
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`the Alexa Terms’ express and conspicuous incorporation of the Privacy Notice, and the absence
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`of any allegation that Plaintiffs lacked notice of those policies, Plaintiffs are held to have received
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`notice of them.9
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`Accordingly, the Court finds that Plaintiffs fail to allege adequately that Amazon had an
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`implied contractual duty to refrain from using Alexa users’ voice data for advertising purposes. In
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`light of Amazon’s authorization to do so – as set forth in the Alexa Terms, incorporating the
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`Privacy Notice – any such implied duty would “contradict express terms in a contract.” 134th
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`Street Lofts, 15 Wash. App. 2d at 564. Therefore, the Court will dismiss Plaintiffs’ claim that
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`Defendants breached the implied covenant of good faith and fair dealing.
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`9 Plaintiffs also argue that the versions of the Alexa Terms and the Privacy Notice submitted by Defendants – both of
`which were in effect on the date the Complaint was filed – “do not apply to Plaintiffs’ claims because they … went
`into effect long after Plaintiffs first registered their Alexa devices.” Opp. at 5-6. This argument lacks merit. As an
`initial matter, Plaintiffs also cite to the versions in effect when the Complaint was filed – i.e., not when they registered
`their devices (see, e.g., Compl. ¶ 110 n.21) – and they point to nothing in Defendants’ submitted versions that differs
`from any earlier version. Moreover, the Alexa Terms expressly provide that users’ “continued use of Alexa” after any
`modifications to that agreement “constitutes [their] acceptance of the terms” therein. Buckley Decl., Ex. A at 3. Given
`Plaintiffs’ alleged continued use of Alexa (see Compl. ¶¶ 84-86, 89-91), they would not be bound solely by policies
`in effect when they registered their devices. See Miracle-Pond v. Shutterfly, Inc., No. 19-cv-04722, 2020 WL
`2513099, at *6 (N.D. Ill. May 15, 2020) (plaintiff “indicated her acceptance to the modified Terms of Use by
`continuing to use [company’s website] products”).
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`ORDER - 11
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 12 of 19
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`B.
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`Claim for Violation of Washington’s Consumer Protection Act
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`Plaintiffs assert a claim under Washington’s Consumer Protection Act (“CPA”), premised
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`on allegations that Amazon has deceived Alexa users into believing that Amazon was using their
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`voice data only for limited purposes, and that those limited purposes did not include advertising.
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`See, e.g., Opp. at 10; Compl. ¶ 126. To prevail on a CPA claim, “the plaintiff must prove (1) an
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`unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public
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`interest, (4) injury to a person’s business or property, and (5) causation.” Panag v. Farmers Ins.
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`Co. of Washington, 166 Wash. 2d 27, 37 (Wn. Sup. Ct. 2009). Defendants contend that the
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`Complaint’s allegations fail to establish the first and fifth elements. Mot. at 6-11.
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`1. Whether Rule 9(b) Applies to Plaintiffs’ CPA Claim
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`Before reviewing whether Plaintiffs adequately allege a CPA violation, the Court addresses
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`the parties’ dispute as to whether the heightened pleading standard applicable to fraud claims, set
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`forth in Rule 9(b) of the Federal Rules of Civil Procedure, applies to Plaintiffs’ claim. See Mot.
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`at 7-8; Opp. at 9-10. The Court agrees with Defendants that it does. “While not all claims brought
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`under the Washington CPA must be pled with the specificity prescribed by Rule 9(b), CPA claims
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`that allege and depend upon a ‘unified course of fraudulent conduct’ as the basis of the claims
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`‘sound in fraud,’ and must be averred with particularity.” Nemykina v. Old Navy, LLC, 461
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`F. Supp. 3d 1054, 1058 (W.D. Wash. 2020) (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d
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`1097, 1103 (9th Cir. 2003)). Accordingly, “[f]ederal courts have concluded that Rule 9(b) applies
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`to [CPA] claims alleging that the defendant intentionally misled the public.” Cole v. Keystone RV
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`Co., LLC, No. 18-cv-5182, 2018 WL 4051805, at *2 (W.D. Wash. Aug. 24, 2018).
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`As Plaintiffs explain in their opposition brief, their CPA claim is based on the theory that
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`Amazon “misleadingly represented” and “created a false impression,” through its policies’
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`ORDER - 12
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`

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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 13 of 19
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`disclosures and public statements to the press, that Amazon was “only using Alexa users’ voice
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`data for limited purposes which did not include advertising.” Opp. at 10. As such, Plaintiffs’
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`claim, which is premised on an alleged scheme to mislead the public through various channels,
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`“depend[s] upon a ‘unified course of fraudulent conduct’ as the basis of the claim[],” and therefore
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`must be pled consistent with Rule 9(b)’s heightened pleading standard. See Nemykina, 461 F.
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`Supp. 3d at 1058. Accordingly, for Plaintiffs’ CPA claim to survive Defendants’ motion, the
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`Complaint “must state with particularity the circumstances” constituting the unfair or deceptive
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`practice. Fed. R. Civ. P. 9(b); see Hernandez v. Johnson & Johnson, No. 4:20-cv-05136, 2021
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`WL 320612, at *5 (E.D. Wash. Jan. 8, 2021) (noting that, applying Rule 9(b), plaintiff’s CPA
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`claim “must be accompanied by the who, what, when, where, and how of the misconduct charged.”
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`(quoting Vess, 317 F.3d at 1106)).
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`2. Whether Plaintiffs Plead an Unfair or Deceptive Practice
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`In order to establish a “deceptive” act or practice, the plaintiff must show that the
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`defendant’s act or practice “had the capacity to deceive a substantial portion of the public.” Panag,
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`166 Wash. 2d at 47, 50 (“Deception exists if there is a representation, omission or practice that is
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`likely to mislead a reasonable consumer” (citation and quotation marks omitted)). It is possible
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`that an act or practice is “unfair without being deceptive.” Klem v. Washington Mut. Bank, 176
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`Wash. 2d 771, 786 (Wn. Sup. Ct. 2013). To prevail on such a theory, the plaintiff must establish
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`that the act or practice “causes or is likely to cause substantial injury to consumers which is not
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`reasonably avoidable by consumers themselves and is not outweighed by countervailing benefits
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`[to consumers or to competition].” Alpert v. Nationstar Mortg. LLC, No. 15-cv-1164, 2019 WL
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`1200541, at *6 (W.D. Wash. Mar. 14, 2019) (quoting Klem, 176 Wash. 2d at 786).
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`ORDER - 13
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`Case 2:22-cv-00800-BJR Document 48 Filed 01/27/23 Page 14 of 19
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`Plaintiffs do not adequately allege that Amazon engaged in an unfair or deceptive practice
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`through its policies’ disclosures. As discussed above, the applicable policies do not conceal
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`Amazon’s use of Alexa-captured voice data for advertising purposes, but instead contemplate that
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`very practice. See supra at 8-10. The Court finds that Amazon’s disclosures are not “likely to
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`mislead a reasonable consumer” in the manner alleged by Plaintiffs, and therefore are not
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`deceptive. See Panag, 166 Wash. 2d at 50; see also Minnick v. Clearwire US, LLC, 683 F. Supp.
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`2d 1179, 1186 (W.D. Wash. 2010) (“Where there is no factual dispute as to what each party did,
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`whether the conduct constitutes an unfair or deceptive act can be decided ... as a question of law.”
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`(citation and quotation marks omitted)). The Court also finds that Amazon’s disclosures are not
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`“unfair” insofar as consumers could “reasonably avoid” the injury Plaintiffs allege resulted from
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`those disclosures.10 See Alpert, 2019 WL 1200541, at *6. “An injury is reasonably avoidable if
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`consumers have reason to anticipate the impending harm and the means to avoid it, or if consumers
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`are aware of, and are reasonably capable of pursuing, potential avenues toward mitig