Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 1 of 16
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`
`
`
`Case No. 2:22-cv-01600
`
`PLAINTIFF’S OPPOSITION TO
`AMAZON’S MOTION FOR
`CONSOLIDATION
`
`v.
`
`THOMAS DOROBIALA,
`
`
`
`
`AMAZON.COM, INC., a Delaware
`corporation,
`
`
`
`
`
`Plaintiff,
`
`
`
`Defendant.
`
`
`
`
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION FOR
`CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 2 of 16
`
`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ...............................................................................................................1
`
`BACKGROUND .................................................................................................................2
`
`III.
`
`ARGUMENT .......................................................................................................................4
`
`A.
`
`B.
`
`Consolidation does not serve the interests of judicial economy because there is
`little factual overlap and no common claim with the other lawsuits. ......................5
`
`Consolidating the claims of the separate plaintiffs’ groups into a single complaint
`creates needless confusion and prejudices the rights of the various classes asserted
`by each plaintiff group. ............................................................................................9
`
`IV.
`
`CONCLUSION ..................................................................................................................11
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - i
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 3 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Almeida v. Barr,
`2020 U.S. Dist. LEXIS 64537 (W.D. Wash. Apr. 10, 2020) .................................................4, 7
`
`Anderson Living Tr. v. WPX Energy Production, LLC,
`297 F.R.D. 622 (D.N.M. 2014) ..................................................................................................9
`
`Bedrock Masonry, Inc. v. Innovative Construction & Design Ltd.,
`2020 WL 4196036 (E.D. Wash. July 21, 2020).........................................................................8
`
`Cascade Yarns, Inc. v. Knitting Fever, Inc.,
`2013 WL 6008308 (W.D. Wash 2013) ......................................................................................8
`
`De Coster v. Amazon,
`2022 U.S. Dist. LEXIS 9960 (W.D. Wash. Jan. 19, 2022) ..................................................5, 10
`
`Ekin v. Amazon Services, LLC,
`2014 WL 12028588 (W.D. Wash. May 23, 2014).....................................................................8
`
`Fairhaven Health, LLC v. BioOrigyn, LLC,
`2021 U.S. Dist. LEXIS 241794 (W.D. Wash. Dec. 17, 2021).................................................10
`
`Gray v. Suttell & Associates,
`2010 WL 11437034 (E.D. Wash. Dec. 29, 2010) ......................................................................8
`
`Harry & David v. ICG Am., Inc.,
`2010 U.S. Dist. LEXIS 92961 (D. Or. Sept. 7, 2010)..........................................................9, 11
`
`Jackson v. Berkey,
`2020 U.S. Dist. LEXIS 72786 (W.D. Wash. Apr. 24, 2020) .....................................................7
`
`Marlow v. Hotchkiss,
`2015 WL 5254250 (E.D. Wash. Sept. 9, 2015) .........................................................................8
`
`Pecznick v. Amazon.com, Inc.,
`2022 WL 4483123 (W.D. Wash. Sept. 27, 2022) ......................................................................8
`
`Pierce v. County of Orange,
`526 F.3d 1190 (9th Cir. 2008) ...................................................................................................4
`
`Rittmann v. Amazon.com, Inc.,
`2019 WL 2994634 (W.D. Wash. July 9, 2019) .........................................................................8
`
`Tashiro-Townley v. Bank of New York Mellon,
`2016 U.S. Dist. LEXIS 85642 (W.D. Wash. June 30, 2016) .....................................................7
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - ii
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 4 of 16
`
`
`
`Terwilleger v. Grays Harbor Cty.,
`2019 WL 2118776 (W.D. Wash May 14, 2019) ........................................................................9
`
`Ultimate Timing, L.L.C. v. Simms,
`2010 U.S. Dist. LEXIS 55831 (W.D. Wash. May 10, 2010) .....................................................6
`
`Uniloc USA, Inc. v. HTC Am., Inc.,
`2018 WL 2059565 (W.D. Wash. May 3, 2018) .........................................................................9
`
`OTHER AUTHORITIES
`
`Fed. R. Civ. P. 12(g)(2)..................................................................................................................10
`
`Fed. R. Civ. P. 30(d)(1)..................................................................................................................10
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - iii
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 5 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`I.
`
`INTRODUCTION
`
`Plaintiff Thomas Dorobiala objects to Amazon’s motion to consolidate the instant action
`
`with Nicholas v. Amazon.com, Inc., No. 2:22-cv-01616-RSM (“Nicholas action”), and Daly v.
`
`Amazon.com, Inc., No. 2:22-cv-00910-RSM (“Daly action”), because consolidation does not
`
`serve any valid purpose. Amazon’s superficial depiction of the allegations of dark patterns as the
`
`common thread among the three complaints ignores the fact that Plaintiff seeks to represent a
`
`different class, challenges different conduct, and seeks different remedies than the plaintiffs in
`
`the Nicholas and Daly actions. Amazon does not identify any common claims or factual issues
`
`that warrant consolidation to preserve judicial resources, nor is consolidation needed to prevent
`
`10
`
`inconsistent rulings, given that the same Court already presides over all three cases. By contrast,
`
`11
`
`consolidating the claims of three disparate plaintiff groups into a single complaint obscures the
`
`12
`
`logical structures of their respective actions, jeopardizes the representation of the respective
`
`13
`
`classes they assert and the prosecution of their respective claims, and senselessly forces a
`
`14
`
`leadership battle among their respective counsel.
`
`15
`
`Specifically, in the instant action Plaintiff relies on Amazon’s contractual choice of law
`
`16
`
`provision and seeks to recover damages on behalf of a single national class under the
`
`17
`
`Washington Consumer Protection Act caused by Amazon’s implementation of dark patterns in
`
`18
`
`the online cancelation procedure for Prime subscriptions. Plaintiff would be substantially
`
`19
`
`prejudiced in his defense of dispositive motions, class certification, and at trial if, instead of
`
`20
`
`defending a single claim on behalf of a single class of consumers injured by a single course of
`
`21
`
`conduct, he was forced to defend seven classes, thirteen claims, varying monetary remedies, and
`
`22
`
`requests for injunctive relief based on a broader set of actions concerning Amazon’s advertising,
`
`23
`
`enrollment, credit card charging, and cancelation procedures for 11 subscription services from
`
`24
`
`Amazon and an indefinite number of products available through Amazon’s Subscribe and Save
`
`25
`
`program. Equally, Plaintiff would be prejudiced in discovery, where instead of having a
`
`26
`
`presumptive right to take up to 10 depositions or serve up to 26 interrogatories to obtain the
`
`27
`
`testimony he needs to pursue his case, he would have to vie with the other plaintiffs’ groups,
`
`28
`
`who would also rely on those presumptive limitations to support their collective claims.
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - 1
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 6 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Further, consolidation is not needed to coordinate discovery between the related cases.
`
`For example, the parties could stipulate to the same protective and ESI orders. They could ensure
`
`cooperation among parties seeking to depose the same witness by stipulating to a common
`
`protocol, and they could minimize duplicative discovery by stipulating that documents produced
`
`in one action would be treated as if produced in the related actions. These practices would
`
`streamline the discovery process without jeopardizing the prosecution of the respective cases of
`
`the three plaintiffs’ groups.
`
`II.
`
`BACKGROUND
`
`The instant action, filed on November 9, 2022, alleges that Amazon intentionally
`
`10
`
`implements dark patterns in the design of its online Prime cancellation procedure to impede
`
`11
`
`Prime members’ efforts to cancel their membership. Plaintiff relies on the Norwegian Consumer
`
`12
`
`Council’s January 2021 report determining that Amazon employs dark patterns in the wording,
`
`13
`
`graphic design, and redundancies to make its online cancellation process for Prime subscriptions
`
`14
`
`needlessly difficult, time-consuming, and frustrating to users, as well as Amazon’s own internal
`
`15
`
`assessment that implementing the deceptive design decreased Prime cancellation by as much as
`
`16
`
`14%. Compl. at ¶¶ 5, 7 (ECF No. 2). Whereas Amazon continues to employ dark patterns in its
`
`17
`
`Prime cancellation process here in the United States, Amazon conceded to European regulators’
`
`18
`
`demands that it shorten its lengthy Prime cancellation process from six clicks to two and that it
`
`19
`
`remove the deliberate misdirection that Amazon employs in its cancellation process to distract or
`
`20
`
`dissuade Prime members from cancelling. Id. ¶ 22. Plaintiff seeks to represent a national class of
`
`21
`
`Prime subscribers who incurred subscription fees when they fell prey to Amazon’s use of dark
`
`22
`
`patterns in its online cancellation process. Id. ¶ 41. Plaintiff further relies on the choice of law
`
`23
`
`provision of Amazon’s terms of use for its Prime members, which provides that Washington law
`
`24
`
`governs Amazon’s conduct with respect to all Prime members nationwide. Id. ¶ 49. He alleges
`
`25
`
`that Amazon’s conduct violates the Washington’s Consumer Protection Act (“WCPA”) and
`
`26
`
`seeks to enjoin it from further use of dark patterns in the Prime cancellation process and to
`
`27
`
`recover fees that Amazon charged class members who attempted—clicked on at least two
`
`28
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - 2
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 7 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`webpages in the cancellation process—but were unable to complete their cancellation. Id. ¶¶ 41,
`
`58.
`
`Plaintiff’s action was preceded by the Nicholas action, filed on August 25, 2022, in
`
`Illinois state court. That action alleges that Amazon applies dark patterns also in the enrollment
`
`and cancellation process for consumers who purchase products on a subscription basis through
`
`Amazon’s Subscribe and Save Program and that Amazon’s disclosures in its advertising and
`
`enrollment of that program fail to comply with Illinois’ automatic renewal law (“ARL”) and
`
`consumer protection statute. Am. Compl. ¶¶ 13, 32, 62-80, Nicholas, No. 2:22-cv-01616-RSM
`
`(W.D. Wash. December 5, 2022), ECF No. 35 (hereafter “Nicholas Am. Compl.”). The Nicholas
`
`10
`
`Plaintiff initially sought only to represent an Illinois class, but upon removal to federal court, she
`
`11
`
`amended her complaint on December 5, 2022, to include a WCPA claim, common law fraud,
`
`12
`
`and unjust enrichment on behalf of a national class of Subscribe & Save subscribers who clicked
`
`13
`
`on at least two webpages in an unsuccessful attempt to complete the Subscribe & Save online
`
`14
`
`cancellation process. Id. ¶¶ 51-61, 81-94.
`
`15
`
`The Daly action, filed on June 29, 2022, preceded both actions. The intent and purpose of
`
`16
`
`the Daly action is very different from the instant action, as evidenced by the fact that neither
`
`17
`
`party even mentions Amazon’s use of dark patterns in their briefing on Amazon’s motion to
`
`18
`
`dismiss. See Daly, ECF Nos. 20, 22, and 23. Rather, the Daly Plaintiffs seek to recover damages
`
`19
`
`on behalf of a national class and California and Oregon subclasses of subscribers to one or more
`
`20
`
`of 11 Amazon subscriptions on grounds that these class members were deceived by Amazon’s
`
`21
`
`failure to obtain adequate consent to charge their credit card under Amazon’s automatic renewal
`
`22
`
`policy or to disclose that its subscription is free to consumers only if they cancel before the next
`
`23
`
`billing period. Am. Compl. at ¶¶ 3-8, Daly, No. 2:22-cv-00910-RSM (W.D. Wash. Sept. 21,
`
`24
`
`2022), ECF No. 14 (hereafter “Daly Am. Compl.”).
`
`25
`
`In Amazon’s motion to dismiss it frankly acknowledges that the “crux” of the Daly
`
`26
`
`complaint is not the use of dark patterns in the Prime online cancellation process, but that
`
`27
`
`“Amazon’s disclosures” in its advertising and enrollment of 11 “subscription services allegedly
`
`28
`
`fail to comply with California’s and Oregon’s Automatic Renewal Laws (Cal. Bus. & Prof. Code
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - 3
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 8 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`§§ 17600 et seq., Or. Rev. Stat. § 646A.295) (together “ARLs”), and Oregon’s Free Offer Law
`
`(Or. Rev. Stat. § 646.644) (“FOL”), and therefore Amazon also is purportedly liable under
`
`various common law misrepresentation and statutory consumer protection theories.” Mot. to
`
`Dismiss 1st Am. Compl. at 1, Daly, No. 2:22-cv-00910-RSM (W.D. Wash. Oct. 14, 2022), ECF
`
`No. 20 (hereafter “Daly MTD”). The Daly Plaintiffs rely on allegations of Amazon’s use of dark
`
`patterns in its online cancelation processes not as an independent basis for recovery but as
`
`supplemental allegations in support of their California and Oregon ARL claims. See Daly Am.
`
`Compl. ¶ 216 (dark patterns alleged in support of punitive damages under Oregon’s ARL); id.
`
`¶ 238 (among other deficiencies, Amazon’s online cancellation process fails to satisfy the
`
`10
`
`statutory requirement of offering an easy cancellation method under California’s ARL). And
`
`11
`
`further the Daly Plaintiffs do not claim that the implementation of dark patterns in the
`
`12
`
`cancelation process violates any of the claims asserted on behalf of the national class. Id. ¶ 273
`
`13
`
`(conversion, alleging “charges made by Defendants to Plaintiffs’ and Nationwide Class
`
`14
`
`members’ Payment Methods without authorization); id. ¶ 280 (unjust enrichment, alleging
`
`15
`
`“Defendants’ failure to disclose material terms of the purchase agreement . . . induced Plaintiffs
`
`16
`
`and the Nationwide Class to purchase the Amazon Subscriptions.”); id. ¶ 284 (negligent
`
`17
`
`misrepresentation, “Defendants misrepresented in their advertisements and related statements
`
`18
`
`made in connection with the sign-up and purchase processes for the Amazon Subscriptions . . .
`
`19
`
`material facts concerning billing, cancellation, and automatic payment terms, policies, and
`
`20
`
`requirements.”); accord id. ¶ 292 (fraud).
`
`21
`
`22
`
`III. ARGUMENT
`
`Under Federal Rule of Civil Procedure 42(a), this Court has the discretion to consolidate
`
`23
`
`actions that involve common questions of law and fact. Pierce v. County of Orange, 526 F.3d
`
`24
`
`1190, 1203 (9th Cir. 2008). In determining whether to exercise its discretion, the Court considers
`
`25
`
`whether it would serve the interests of judicial economy or conversely whether delay or
`
`26
`
`prejudice may result from consolidation. Almeida v. Barr, 2020 U.S. Dist. LEXIS 64537, at *4
`
`27
`
`(W.D. Wash. Apr. 10, 2020).
`
`28
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - 4
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 9 of 16
`
`
`
`A.
`
`Consolidation does not serve the interests of judicial economy because there is little
`factual overlap and no common claim with the other lawsuits.
`
`Amazon superficially focuses on the other lawsuits’ common allegations of Amazon’s
`
`use of dark patterns in the design of its online cancelation procedures to impede consumers from
`
`cancelling their subscriptions. But these allegations do not serve as grounds for consolidation
`
`here because each lawsuit presents “different accusations. Amazon is huge; it may get accused of
`
`violating” consumer protection laws “many times a year, in many different ways, and not all of
`
`these actions can or should be consolidated. It is not clear that judicial economy would be served
`
`by throwing everything into a single case.” De Coster v. Amazon, 2022 U.S. Dist. LEXIS 9960,
`
`at *3 (W.D. Wash. Jan. 19, 2022). For example, in De Coster, this Court declined to consolidate
`
`related antitrust cases that both alleged that Amazon coerced third-party sellers to sign up for its
`
`logistics service because one case asserted these allegations in support of a tying claim while the
`
`other asserted it as a demonstration of Amazon’s power over of its sellers in connection with a
`
`price-fixing claim. Id. at *3.
`
`The same reasoning applies here and counsels against consolidation, where allegations
`
`concerning dark patterns serve very different purposes in each of the three lawsuits that make
`
`separate accusations against Amazon. In the instant action, Plaintiff seeks to represent a national
`
`class of Prime subscribers to recover subscription fees incurred each time they unsuccessfully
`
`attempted to cancel their subscriptions online. His core allegations are that Amazon redesigned
`
`its online cancellation procedure for Prime subscriptions so that it includes dark patterns that
`
`force consumers to click through a confusing series of at least six web pages, a design which it
`
`internally acknowledged caused a 14% reduction in Prime membership cancellations. And he
`
`further alleges that while Amazon continues to harm U.S. consumers, it took corrective action in
`
`Europe at the direction of EU regulators by removing dark patterns from its online cancelation
`
`procedure and allowing European Prime subscribers to cancel their subscriptions by clicking on
`
`just two webpages.
`
`Whereas Amazon’s use of dark patterns in its online Prime cancellation procedure is the
`
`core issue in the instant case, it is, for several reasons, of only tangential importance in the Daly
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - 5
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 10 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`case. First, Prime is just one of 11 subscription services asserted in the Daly action. Second, as
`
`Amazon candidly recognized in its motion to dismiss, “[t]he thrust of [the Daly] Plaintiffs’ FAC
`
`is” not that Amazon used dark patterns to prevent them from canceling their subscriptions, but
`
`that “Amazon violated [automatic renewal laws and free offer laws] by allegedly violating
`
`certain statutory formatting and disclosure requirements” when class members signed up for
`
`Prime and other 10 subscriptions at issue in that lawsuit. Daly MTD at 14. Third, none of the
`
`Daly Plaintiffs’ claims on behalf of the national class even references Amazon’s cancellation
`
`policies, let alone its implementation of dark patterns. Daly Am. Compl. ¶¶ 273, 280, 284, 292.
`
`The only claims that rely on the design of Amazon’s online cancellation process are the Oregon
`
`10
`
`and California class claims for violations of those states’ automatic renewal law claims, where
`
`11
`
`these allegations serve as supplemental bases for Amazon’s liability under those statutes and are
`
`12
`
`dependent upon Amazon’s failure to comply with ARL disclosures. Id. ¶¶ 216, 238. Judicial
`
`13
`
`economy is also not served by consolidation of the Daly case with the instant case because
`
`14
`
`Amazon did not even challenge the Daly Plaintiffs’ allegations of its use of dark patterns or
`
`15
`
`move to dismiss any claims on that basis, and indeed neither party even mentions this practice in
`
`16
`
`the briefing on that motion.
`
`17
`
`The Daly Plaintiffs, moreover, do not allege violations of Washington law, so there are
`
`18
`
`no overlapping legal claims between the two lawsuits to justify consolidation. See Ultimate
`
`19
`
`Timing, L.L.C. v. Simms, 2010 U.S. Dist. LEXIS 55831, at *7 (W.D. Wash. May 10, 2010)
`
`20
`
`(declining to consolidate cases proceeding respectively under Washington and Indiana laws
`
`21
`
`despite overlapping factual allegations because of the “potential for confusion if a jury were
`
`22
`
`asked to apply different substantive law to purportedly parallel agreements”). The potential for
`
`23
`
`jury confusion is amplified here because the Daly Plaintiffs seek different remedies. The instant
`
`24
`
`action seeks to recover the fees Amazon charged class members after their failed attempts to
`
`25
`
`cancel their Prime subscriptions, treble damages, and an order enjoining Amazon’s use of dark
`
`26
`
`patterns in the Amazon Prime cancellation process and ordering Amazon to simplify its
`
`27
`
`cancellation process as it has done in Europe. Compl. at ¶ 41 and Prayer for Relief. By contrast,
`
`28
`
`the Daly Plaintiffs seek to recover restitution, compensatory damages, statutory damages, and
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - 6
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 11 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`punitive damages arising from recurring charges since the inception of class members’
`
`subscriptions to 11 different services. See, e.g., Daly Am. Compl. ¶¶ 187, 208, 213, 242, 288,
`
`and Prayer for Relief.
`
`And while it is true that both the instant case and the Nicholas action allege that Amazon
`
`violated the WCPA, this does not justify consolidation because the actions challenge different
`
`conduct. “Whether an injury occurred [under the WCPA] depends on the facts” asserted.
`
`Tashiro-Townley v. Bank of New York Mellon, 2016 U.S. Dist. LEXIS 85642, at *8 (W.D. Wash.
`
`June 30, 2016). The Plaintiff in the instant action and the Nicholas Plaintiff rely on different facts
`
`to support their respective WCPA claims. Unlike the instant action, the Nicholas action does not
`
`10
`
`include any allegations that members of its putative class were harmed by the Prime online
`
`11
`
`cancellation process. Rather, the Nicholas Plaintiff seeks to represent an entirely different class
`
`12
`
`of consumers who order products through Amazon’s Subscribe and Save feature on a
`
`13
`
`subscription basis and paid for products unnecessarily because dark patterns Amazon
`
`14
`
`implemented in the enrollment and online cancellation procedure for that program impeded their
`
`15
`
`cancellations. Indeed, Amazon highlighted differences between each of its subscriptions in its
`
`16
`
`motion to dismiss the Daly action, when it argued that its subscription services are so starkly
`
`17
`
`different from one another that a “context-specific analysis” of the enrollment and cancellation
`
`18
`
`processes would be necessary “for each of the subscription services that Plaintiffs challenge.”
`
`19
`
`Daly MTD at 9.
`
`20
`
`Thus, whether Amazon uses dark patterns in its online Prime cancellation procedure and
`
`21
`
`whether it harmed Prime members who sought to cancel is irrelevant to the proposed Nicholas
`
`22
`
`class, where only the Subscribe & Save cancellation is at issue, and, conversely, resolution of the
`
`23
`
`core issue in the Nicholas case has no bearing on the instant case. Because both cases rely on
`
`24
`
`entirely different facts to support their WCPA claims, judicial economy is not served by
`
`25
`
`consolidating the two cases for consideration of their WCPA claims. See Almeida, 2020 U.S.
`
`26
`
`Dist. LEXIS 64537, at *4 (declining to consolidate related cases that each alleged Fifth
`
`27
`
`Amendment Due Process violations arising from the plaintiffs’ confinement at the same facility
`
`28
`
`during the height of the COVID pandemic because the factual analysis of each claim would
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - 7
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 12 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`differ from plaintiff to plaintiff); Jackson v. Berkey, 2020 U.S. Dist. LEXIS 72786, at *4-5
`
`(W.D. Wash. Apr. 24, 2020) (declining to consolidate multiple cases filed by the same plaintiff,
`
`asserting similar violations against some of the same defendants because the alleged conduct
`
`occurred at three separate facilities and would “involve separate and distinct evidence requiring
`
`separate evaluations and analyses”). The relief sought in the Nicholas action also differs from the
`
`instant action and is a potential source of jury confusion; unlike the instant action, the Nicholas
`
`action seeks restitution and declaratory relief, and further, the Nicholas action it seeks damages
`
`and injunctive relief related solely to the Subscribe & Save program, which Plaintiff also does
`
`not seek. Nicholas Am. Compl. at Prayer for Relief.
`
`10
`
`Finally, to the extent there are overlapping facts or issues of law between the instant
`
`11
`
`action and the Nicholas and Daly actions, the Court has already eliminated the risk of
`
`12
`
`inconsistent rulings because it now presides over all three cases.
`
`13
`
`Amazon’s authorities do not support a different conclusion. Pecznick v. Amazon.com,
`
`14
`
`Inc., 2022 WL 4483123, at *3 (W.D. Wash. Sept. 27, 2022), and Rittmann v. Amazon.com, Inc.,
`
`15
`
`2019 WL 2994634, at *1 (W.D. Wash. July 9, 2019), are distinguishable because unlike the
`
`16
`
`cases here, the gravamen of each case sought to be consolidated alleged the same conduct and
`
`17
`
`the same legal violations. Ekin v. Amazon Services, LLC, 2014 WL 12028588, at *1 (W.D.
`
`18
`
`Wash. May 23, 2014), is distinguishable because all the parties there “agree[d] that consolidation
`
`19
`
`of the two cases [was] appropriate,” the only issue was whether to stay the second action. Gray v.
`
`20
`
`Suttell & Associates, 2010 WL 11437034 (E.D. Wash. Dec. 29, 2010), is distinguishable because
`
`21
`
`the plaintiffs in the later-filed action did not object to consolidation and the court did not identify
`
`22
`
`any prejudice to the defendants, who opposed consolidation. Bedrock Masonry, Inc. v.
`
`23
`
`Innovative Construction & Design Ltd., 2020 WL 4196036, at *2 (E.D. Wash. July 21, 2020), is
`
`24
`
`similarly distinguishable because both sets of plaintiffs demonstrated the judicial efficiency of
`
`25
`
`consolidation of their actions where the parties had disclosed virtually identical witness lists.
`
`26
`
`Marlow v. Hotchkiss, 2015 WL 5254250, at *1 (E.D. Wash. Sept. 9, 2015), represented
`
`27
`
`unique circumstances absent here, where the court consolidated two related pro se actions to
`
`28
`
`eliminate the confusion that would occur if “their arguments and factual allegations” were split
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - 8
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 13 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`between the two cases. And the remaining cases Amazon relies on also involve inapposite
`
`considerations, namely multiple cases filed by the same plaintiff against the same defendants,
`
`concerning similar conduct. Cascade Yarns, Inc. v. Knitting Fever, Inc., 2013 WL 6008308, at
`
`*1 (W.D. Wash 2013); Uniloc USA, Inc. v. HTC Am., Inc., 2018 WL 2059565, at *2 (W.D.
`
`Wash. May 3, 2018); Terwilleger v. Grays Harbor Cty., 2019 WL 2118776, at *1 (W.D. Wash
`
`May 14, 2019).
`
`B.
`
`Consolidating the claims of the separate plaintiffs’ groups into a single complaint
`creates needless confusion and prejudices the rights of the various classes asserted
`by each plaintiff group.
`
`As discussed above, each of the three actions focuses on different conduct by Amazon,
`
`10
`
`which gives rise to different theories of injury, different putative classes, and different remedies
`
`11
`
`sought. Jumbling these cases together into a single consolidated complaint not only serves no
`
`12
`
`valid purpose, but also compromises the prosecution of their cases and causes unnecessary delay.
`
`13
`
`“The risk of increased complexity at trial and jury confusion, and the prejudice to plaintiff in
`
`14
`
`litigating the cases together outweigh any economies and convenience which might be gained in
`
`15
`
`discovery or in briefing dispositive motions.” Harry & David v. ICG Am., Inc., 2010 U.S. Dist.
`
`16
`
`LEXIS 92961, at *7 (D. Or. Sept. 7, 2010); id. at *4-5 (declining to consolidate trademark cases
`
`17
`
`despite “facts and legal issues common to both cases” because “each case is deeply tied to
`
`18
`
`specific facts” regarding defendant’s separate conduct). As set forth below, Amazon has “not
`
`19
`
`met [its] burden to show that consolidation would produce substantial tangible efficiencies
`
`20
`
`warranting the Court to override the Plaintiffs’ autonomy in mastering their own complaints.”
`
`21
`
`Anderson Living Tr. v. WPX Energy Production, LLC, 297 F.R.D. 622, 631 (D.N.M. 2014).
`
`22
`
`First, rather than presenting a single coherent theory of their respective cases, as each
`
`23
`
`plaintiffs’ group has seen fit, they would have to redesign their cases to fit within a single
`
`24
`
`common mold. Given the differences in factual allegations and legal theories, the resulting
`
`25
`
`complaint would be a compromise, as opposed to a deliberate presentation of their chosen claims
`
`26
`
`and theories of harm. Amazon would undoubtedly exploit any incoherence or inconsistency in
`
`27
`
`such compromise in its motion to dismiss. And because all plaintiffs’ groups will have to
`
`28
`
`respond jointly in a single 25-page opposition, they will have less freedom and space to defend
`
`PLAINTIFF’S OPPOSITION TO AMAZON’S MOTION - 9
`FOR CONSOLIDATION
`Case No. 2:22-cv-01600
`010888-17/2127144 V1
`
`

`

`Case 2:22-cv-01600-RSM Document 11 Filed 01/20/23 Page 14 of 16
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`their respective theories of harm. Likewise, having to present a single consolidated motion for
`
`class certification of claims addressing different conduct and different theories of harm and
`
`different classes will not allow Plaintiffs in the related actions to make their best case for
`
`certifying their respective classes and claims. For the same reason, the plaintiffs’ groups and
`
`their respective classes risk the potential for jury confusion if they are required to proceed
`
`collectively at trial.
`
`Second, given that the related actions seek to represent different classes, it is not clear on
`
`what basis lead counsel should be appointed. This needlessly risks dissension between counsel
`
`for the plaintiffs’ groups and risks that some of the proposed classes will be overlooked in the
`
`10
`
`artificial regime that Amazon seeks to impose upon the plaintiffs’ groups. See De Coster, 2022
`
`11
`
`U.S. Dist. LEXIS 9960, at *4 (declining to consolidate cases where one plaintiffs’ group could
`
`12
`
`“be prejudiced by consolidation given the disagreements between Plaintiffs’ counsel in both
`
`13
`
`cases” and the risk that counsel in one case would “prioritize its existing allegations over those of
`
`14
`
`the case that it is attempting to consolidate with.”).
`
`15
`
`Third, each of Amazon’s requests—that counsel for the plaintiffs’ gro