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Nicosia v. Amazon.com, Inc.

United States Court of Appeals for the Second Circuit

November 30, 2015, Argued; August 25, 2016, Decided

Docket No. 15-423-cv

Opinion

 [*226]  Chin, Circuit Judge:

In 2013, plaintiff-appellant Dean Nicosia purchased 1 Day Diet, a weight loss product containing sibutramine, a controlled substance that had been removed from the market in October 2010, on the website of defendant-appellee Amazon.com, Inc. ("Amazon"). Nicosia brought this action below, asserting claims under the Consumer Product Safety Act (the "CPSA"), 15 U.S.C. § 2051 et seq., and state law.

The district court (Townes, J.) dismissed the complaint on the ground that the parties are bound by the mandatory arbitration provision in Amazon's Conditions of Use. It found that Nicosia was on constructive notice of the terms and that he assented to mandatory arbitration when he placed his order on the website. In the same memorandum and order, the district court treated Nicosia's motion for preliminary injunctive relief as a motion for a preliminary injunction in aid of arbitration, and denied the motion on the ground that he lacked standing to seek an injunction blocking Amazon from selling items containing sibutramine and requiring Amazon to send remedial notices to consumers.

We affirm the district court's denial of injunctive relief, vacate the dismissal for failure to [**3]  state a claim, and remand for further proceedings.

BACKGROUND

I. The Facts

A. As Alleged in the Complaint

Nicosia is an Amazon customer. On both January 30 and April 19, 2013, he used the Amazon website to purchase 1 Day Diet (One Day Diet) Best Slimming Capsule 60 Pills ("1 Day Diet"), a weight loss drug containing sibutramine. Sibutramine is a Schedule IV stimulant that was withdrawn from the market in October 2010 by the Food and Drug Administration (the "FDA") because its association with cardiovascular risks and strokes outweighed its limited weight loss value. Prior to the FDA's removal of sibutramine from the market, it was only available to consumers with a doctor's prescription. After its removal, the FDA advised physicians to stop prescribing sibutramine and to advise patients to cease its consumption due to its risks, including "major adverse cardiovascular events."1

At the time of his purchase, Nicosia did not know that 1 Day Diet contained sibutramine and he did not have a doctor's prescription. Sibutramine was not listed as an ingredient [**4]  on Amazon's website or on the 1 Day Diet packaging, and Amazon sold the product without requiring a prescription. It was only revealed in November 2013 by the FDA that 1 Day Diet contained sibutramine.

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834 F.3d 220 *; 2016 U.S. App. LEXIS 15656 **

DEAN NICOSIA, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. AMAZON.COM, INC., Defendant-Appellee.

Subsequent History: Magistrate's recommendation at Nicosia v. Amazon.com, Inc., 2017 U.S. Dist. LEXIS 133701 (E.D.N.Y., Aug. 18, 2017)

Prior History:  [**1] ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Townes, J.), dismissing plaintiff's complaint for failure to state a claim on the grounds that plaintiffs claims are subject to mandatory arbitration and denying plaintiff's motion for a preliminary injunction for lack of standing. We affirm the district court's denial of plaintiff's motion for a preliminary injunction, but vacate the dismissal for failure to state a claim and remand for further proceedings.

Nicosia v. Amazon.com, Inc., 84 F. Supp. 3d 142, 2015 U.S. Dist. LEXIS 13560 (E.D.N.Y., Feb. 2, 2015)

Disposition: AFFIRMED IN PART AND VACATED IN PART AND REMANDED.

CORE TERMS

arbitration, district court, notice, Conditions, terms, assent, user, motion to dismiss, purchases, Registration, parties, sibutramine, manifested, webpage, products, website, click, terms and conditions, consumer, integral, button, links, preliminary injunction, browsewrap, font, clickwrap, discovery, offeree, mandatory arbitration, summary judgment

Business & Corporate Compliance, Alternative Dispute Resolution, Arbitration, Arbitrability, Federal Arbitration Act, Arbitration Agreements, Evidence, Inferences & Presumptions, Inferences, Orders to Compel Arbitration, Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Appeals, Standards of Review, De Novo Review, Judgments, Summary Judgment, Motions for Summary Judgment, Contract Formation, Contracts Law, Contract Formation, Computer & Internet Law, Internet Business, Contracts, Electronic Contracts, Acceptance, Meeting of Minds, Electronic Contracts, Formation, Contract Conditions & Provisions, Contract Conditions & Provisions, Contract Modifications, Contract Modifications, Acceptance, Federal Arbitration Act, Remedies, Injunctions, Preliminary & Temporary Injunctions, Preliminary Considerations, Jurisdiction, Subject Matter Jurisdiction, Abuse of Discretion, Justiciability, Standing, Class Actions, Prerequisites for Class Action, Adequacy of Representation, Constitutional Law, Case or Controversy, Standing, Elements, Antitrust & Trade Law, Consumer Protection, Consumer Product Safety Act, Consumer Protection