Fraud Plaintiffs vs. Amazon Propose Consolidation but Disagree on Terms

The plaintiffs in two fraud class actions against Amazon over its return policies filed a joint motion with a proposed order (docket 2:23-cv-01545) to consolidate cases Tuesday in U.S. District Court for Western Washington in Seattle, but they disagree on how the case should go forward. They asked the court for its “guidance” on how to proceed if it grants the motion to consolidate.

Plaintiff Sumeet Srivastava’s October complaint (see 2310060026) alleges Amazon keeps money owed to its customers who timely followed its return policies. Though counsel for Srivastava differentiated their complaint from that of the plaintiffs in Abbott et al. v. Amazon by referencing “the many emails that Amazon customers receive,” or having alleged a slightly different proposed class definition than is alleged by the Abbott plaintiffs, those differences don’t necessitate the filing of a consolidated complaint, plaintiffs said, referencing a resulting “needless delay."

Though plaintiffs agree the cases should be consolidated, they disagree about how the case should proceed once consolidated, said the motion. Abbott’s position is that the Srivastava action is “effectively a cut and paste iteration” of the previously filed Abbott action in underlying facts and legal claims, it said. To minimize disruption of the current schedule, “given the derivative nature of the Srivastava complaint,” the court should consolidate the actions into the Abbott case with the Abbott complaint “remaining the operative pleading,” the motion said.

Srivastava maintains the two cases are based on “the same overarching wrongdoing by Amazon” but that his complaint asserts certain facts and theories that differ from the Abbott complaint, including that he seeks to represent not only a nationwide class but also a nationwide dropoff subclass of Amazon customers. The Abbott class definition “unnecessarily omits all Amazon customers who were denied refunds for timely returns of purchases that may not have been in their ‘original condition’ when returned to Amazon or its affiliates,” said Srivastava.

Amazon’s returns policies permit customers to send back most items “for almost any reason, including mere dissatisfaction with the product’s performance, even if the product is no longer in its ‘original condition,’" said Srivastava. He seeks to certify a nationwide class of all people in the U.S. who returned a purchase to Amazon or a designated location on time, were provided confirmation from Amazon that the returned purchase was timely received, and were either provided a refund by Amazon for the purchase and then later recharged by Amazon, or “were never provided a refund.”

The Srivastava complaint also “uniquely focuses on Amazon’s failure to sufficiently notify its customers of the retracted refunds by largely burying the notification in a slew of emails from Amazon, many of which cannot be opted-out from, concerning nearly every aspect of customers’ transactions,” said Srivastava. The Abbott plaintiffs’ “demand that their complaint be deemed the sole operative complaint would negate Plaintiff Srivastava’s complaint as well as the claims of the more expansive classes proposed therein,” he said. “This would leave an enormous number of Amazon customers who did not return their purchases in ‘original condition,’” and weren’t required to do so under Amazon’s return policies, “out in the cold for no apparent reason,” said Srivastava.

Srivastava agrees with the Abbott plaintiffs’ position that there should be no unnecessary delay in prosecuting the claims against Amazon, but “taking the time to assure that the full array of facts is asserted against Amazon on behalf of the broadest potential classes should take precedence over” the Abbott plaintiffs’ desire to hold a Rule 26(f) conference in their case, “and obtain a response to their complaint, as quickly as possible.” Abbott plaintiffs seek to hold a Rule 26(f) conference in their case within 14 days of the court’s ruling on their counsel’s application for appointment as interim class counsel.

Srivastava asked the court to enter an “orderly schedule for the filing and resolution of competing interim lead counsel motions” by counsel in the related actions, with motions due within seven calendar days of the order consolidating them; responses would be due seven calendar days later.

Amazon’s position, stated in the motion, is that given plaintiffs’ dispute about the scope and impact of the differences between the related actions, their counsel should confer and file a consolidated amended complaint 30 days after the court rules on the joint motion to consolidate. “Only a consolidated amended complaint would ensure that all Plaintiffs, allegations, and claims are accounted for in a single complaint,” said the defendant.

Amazon’s responsive pleading should be due 45 days after the filing of the consolidated complaint, it said. If the court doesn’t require a consolidated amended complaint, Amazon asked for a two-week extension, to Nov. 22, to respond to the current Abbott complaint.