Plaintiff's Deception Claims in Audible Offer Time-Barred, 'Duplicative': Amazon

Plaintiff Tracy McCarthy’s fraud claims against Amazon and its Audible subsidiary for deceptive practices under New York General Business Law (GBL) are time-barred and “duplicative,” said Amazon’s motion to dismiss (docket 2:23-cv-01019) the first amended complaint (FAC) Monday in U.S. District Court for Washington in Seattle.

McCarthy’s class action, removed from U.S. District Court for Eastern New York last month, alleged Amazon used a deceptive practice for the Audible audiobook service to target its Prime users for enrollment in Audible through a process “not clear" to members (see 2307110009). The plaintiff’s claims are time-barred, Amazon said, because she waited over three years after she allegedly suffered harm to file her April claim.

The Holbrook, New York, resident alleges many Prime members don’t know Audible isn’t free with their Prime membership and “inadvertently enroll in a paid subscription to Audible,” said the first amended complaint. Audible membership “is not adequately disclosed to the Prime members,” the FAC said; if a Prime member inadvertently enrolls in Audible, she “does not receive any conspicuous materials from Audible by email confirming enrollment and then notifying of monthly charges,” the complaint said.

McCarthy alleges Amazon didn’t “clearly and conspicuously” inform her she would be enrolled in an Audible membership when she used a credit to buy an Audible audiobook on Amazon in November 2018, said the motion to dismiss, but the FAC “omits any information about the ‘credit’ -- including how it was added to her account, the enrollment process for obtaining it, or the disclosures and statements presented in that process,” Amazon said. McCarthy alleges she “did not notice or read any” disclosures, which Amazon called a “far cry from alleging that Defendants failed to make them.”

That McCarthy already had an Audible credit “is consistent with the now-abandoned theory of her original Complaint that an allegedly misleading advertisement prompted her to sign up for Audible intentionally to receive free credits,” Amazon said. McCarthy “reworked” her original theory to plead that she was “unaware” of her enrollment in Audible, without alleging facts to support “this pivot” or establish an actionable violation of the law, it said.

In the amended complaint, McCarthy didn’t identify one misrepresentation or actionable omission, and without one, the court “cannot reasonably infer that the ‘credit’ enrollment or redemption process was somehow deceptive,” said the motion. Her duplicative unjust enrichment claim “also fails with her GBL claims,” it said, citing Cosgrove v. Oregon Chai, Inc., saying courts “routinely dismiss unjust enrichment claims that are tacked on to deficient GBL claims.”

McCarthy lacks standing to seek injunctive relief “as she faces no risk of future harm,” said the motion, noting she already canceled her Audible membership. To seek injunctive relief, a plaintiff must plausibly allege “an imminent or actual threat of future harm" caused by the conduct that allegedly violates consumer protection statutes, it said.