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Nicosia v., Inc.

United States District Court for the Eastern District of New York

February 2, 2015, Decided; February 4, 2015, Filed

14-cv-4513 (SLT) (MDG)



TOWNES, United States District Judge:

Plaintiff Dean Nicosia brings this putative class action against, Inc. ("Amazon" or ""), contending that Amazon has sold and continues to sell weight loss supplements containing sibutramine, a "controlled substance ... [that has] never been permitted for sale without a prescription from a licensed physician ... [and that is] associated [**2]  with a serious risk of cardiovascular events and strokes," in violation of various federal and state consumer protection laws and in breach of various implied warranties. (Compl. ¶¶ 2, 86-175.) Currently before the Court are (1) Amazon's motion to dismiss on the grounds that, inter alia, all of Plaintiff's claims are governed by a mandatory arbitration clause and class action waiver, and (2) Nicosia's motion for a preliminary injunction, in which Nicosia asks this Court to grant the following injunctive relief:

A. Requiring Amazon to comply with the 'special packaging' rules promulgated by the Consumer Product Safety Commission;

B. Preliminarily enjoining Amazon from further distributing any weight loss products that contain sibutramine; and

C. Providing a court-approved remedial notice to all consumers to whom Amazon sold products containing sibutramine, and post the same notice conspicuously on its website.

(PI. PI Br. at 23-24.) Amazon's motion to dismiss is granted because all of Plaintiff's claims are subject to mandatory arbitration and Plaintiff's motion for a preliminary  [*145]  injunction is denied because Plaintiff lacks standing.

Factual Background

Plaintiff Dean Nicosia is a resident [**3]  of Wilmington, North Carolina. He alleges that "during the class period(s) [he] was a resident of Massapequa, New York." (Compl. ¶ 15.) Plaintiff twice, first on January 30, 2013 and then again on April 19, 2013, purchased diet drugs known as "1 Day Diet" from a third-party seller on (Compl. ¶¶ 7, 54-55.)

Sibutramine is a controlled substance only available by prescription. The United States Food and Drug Administration ("FDA") had previously published a press release, on October 8, 2010, stating the "continued availability" of a certain diet drug containing sibutramine "is not justified when you compare the very modest weight loss that people achieve on this drug to their risk of heart attack or stroke," and reporting that the results of a clinical trial "demonstrated a 16 percent increase in the risk of serious heart events, including non-fatal heart attack, non-fatal stroke, the need to be resuscitated once the heart stopped, and death, in a group of patients given sibutramine compared to another given placebo." (Compl. at ¶¶ 19-20 (quoting FDA Oct. 8, 2010 Press Release)).

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84 F. Supp. 3d 142 *; 2015 U.S. Dist. LEXIS 13560 **

DEAN NICOSIA, on behalf of himself and all others similarly situated, Plaintiff, — against — AMAZON.COM, INC., Defendant.

Subsequent History: Affirmed in part and vacated in part by, Remanded by Nicosia v., Inc., 2016 U.S. App. LEXIS 15656 (2d Cir. N.Y., Aug. 25, 2016)


Conditions, arbitration, terms, Diet, website, preliminary injunction, injunctive relief, sibutramine, purchases, injunction, notice, motion to dismiss, mandatory arbitration, hyperlink, consumer, products, user, class action, consumer product safety, district court, conspicuous, dietary supplement, browsewrap, courts, contends, parties, marks, individual basis, lack standing, weight loss

Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Complaints, Requirements for Complaint, Preliminary Considerations, Venue, General Overview, Responses, Motions to Dismiss, Business & Corporate Compliance, Alternative Dispute Resolution, Arbitration, Arbitrability, Federal Arbitration Act, Arbitration Agreements, Contract Formation, Acceptance, Meeting of Minds, Computer & Internet Law, Electronic Contracts, Types of Transactions, Clickwrap Licenses, Contracts, Formation, Remedies, Injunctions, Preliminary & Temporary Injunctions, Constitutional Law, Case or Controversy, Standing, The Judiciary, Justiciability, Burdens of Proof, Elements, Grounds for Injunctions, Irreparable Harm, Antitrust & Trade Law, Consumer Protection, Consumer Product Safety Act, Claims