15‐423‐cv

Dean Nicosia v. Amazon.com, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

      

August Term 2015

(Argued:  November 30, 2015            Decided: August 25, 2016)

Docket No. 15‐423‐cv

      

DEAN NICOSIA, on behalf of himself and all others similarly situated,

        Plaintiff‐Appellant,

v.

AMAZON.COM, INC.,

        Defendant‐Appellee.

      

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

      

Before:

SACK, CHIN, and LOHIER, Circuit Judges.

      

Appeal from a judgment of the United States District Court for the

Eastern District of New York (Townes, J.), dismissing plaintiffʹs complaint for

failure to state a claim on the grounds that plaintiffʹs claims are subject to
‐ 2 ‐ 

mandatory arbitration and denying plaintiffʹs motion for a preliminary

injunction for lack of standing.  We affirm the district courtʹs denial of plaintiffʹs

motion for a preliminary injunction, but vacate the dismissal for failure to state a

claim and remand for further proceedings.   

AFFIRMED IN PART AND VACATED IN PART AND REMANDED.

      

JOSEPH SETH TUSA, Tusa P.C., Southold, New York,

Peter D. St. Phillip, Jr., Scott V. Papp, Lowey

Dannenberg Cohen & Hart, P.C., White Plains,

New York, Timothy G. Blood, Paula M. Roach,

Blood Hurst & OʹReardon, LLP, San Diego,

California, and Gregory S. Duncan, Esq.,

Charlottesville, Virginia, for Plaintiff‐Appellant.

GREGORY T. PARKS, Ezra D. Church, Morgan Lewis &

Bockius LLP, Philadelphia, Pennsylvania, and

Regina Schaffer‐Goldman, Mary Claire Dekar,

Morgan Lewis & Bockius LLP, New York, New

York, for Defendant‐Appellee.

      

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. (ʺAmazonʺ).  Nicosia brought this action below, asserting
claims u

seq., and

ground

Amazon

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‐ 3 ‐ 

Safety Act

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S.C. § 2051

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19,
‐ 4 ‐ 

Slimming Capsule 60 Pills (ʺ1 Day Dietʺ), 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  Sibutramine is a Schedule IV stimulant that was withdrawn from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 ʺFDAʺ)

because its association with cardiovascular risks and strokes outweighed its

limited weight loss value.  Prior to the FDAʹs removal of sibutramine from the

market, it was only available to consumers with a doctorʹs 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 ʺmajor

adverse cardiovascular events.ʺ1  

At the time of his purchase, Nicosia did not know that 1 Day Diet

contained sibutramine and he did not have a doctorʹs prescription.  Sibutramine

was not listed as an ingredient on Amazonʹs 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.   

Amazon has since stopped selling 1 Day Diet but never notified

Nicosia that 1 Day Diet contained the stimulant or offered to refund his

                                               1   U.S. Food & Drug Administration, FDA Drug Safety Communication:  FDA

Recommends Against the Continued Use of Meridia (sibutramine) (Oct. 8, 2010),

http://www.fda.gov/Drugs/DrugSafety/ucm228746.htm.
purchas

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amount

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Amazon

9, 2008

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‐ 5 ‐ 

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‐ 6 ‐ 

The Registration Page and the Order Page both included a link to

Amazonʹs ʺConditions of Use.ʺ  The Amazon declaration provided a copy of the

conditions of use apparently in effect in 2013, when Nicosia made his purchases,

as they were last updated December 5, 2012 (ʺ2012 Conditions of Useʺ).  They

included the following mandatory arbitration provision:   

Any dispute or claim relating in any way to your use of

any Amazon Service, or to any products or services sold

or distributed by Amazon or through Amazon.com will

be resolved by binding arbitration, rather than in court

. . . .  We each agree that any dispute resolution

proceedings will be conducted only on an individual

basis and not in a class, consolidated or representative

action.  

J. App. 20‐21 (emphases omitted).   

In his opposition to the motion to dismiss, Nicosia challenged

Amazonʹs assertions that he had registered for an Amazon account.  He also

introduced a copy of Amazonʹs prior conditions of use, which his counsel

contended were in place in 2008 (ʺ2008 Conditions of Useʺ).  These did not

include an arbitration provision, but merely included a choice of forum clause

designating ʺany state or federal court in King County, Washington,ʺ as the

forum with exclusive jurisdiction and venue over consumer claims exceeding

$7,500.  J. App. 50.  
‐ 7 ‐ 

II. Procedural History

Nicosia brought this putative class action below against Amazon,

alleging that Amazon had sold and was continuing to sell weight loss products

containing sibutramine to its customers in violation of the CPSA, 15 U.S.C.

§§ 2051‐89, and state consumer protection laws.  He alleged additional claims for

breach of implied warranty and unjust enrichment.  The complaint sought both

damages and an injunction to prohibit Amazon from further sale of products

containing sibutramine.  

After suit was filed, Amazon informed the district court that it

intended to move to dismiss the complaint on the ground that Nicosia was

subject to Amazonʹs mandatory arbitration provision.  The district court stayed

discovery pending resolution of Amazonʹs anticipated motion to dismiss.  

On October 2, 2014, Nicosia sought reconsideration of the district

courtʹs stay of discovery with respect to ʺsubjects put at issue by Defendantʹs

requested motions to dismiss Plaintiffʹs individual claims and to compel

arbitration.ʺ   Pl.ʹs Ltr. 1, ECF No. 23.  Nicosia requested discovery concerning his

ʺindividual purchases of 1 Day Diet . . . from Amazon, and discovery supporting

Amazonʹs claims that Plaintiff provided his individual consent to arbitrate his
‐ 8 ‐ 

claims made in this action.ʺ  Id. at 2.  The district court denied Nicosiaʹs motion

for reconsideration of the discovery stay, clarifying that ʺall discovery in this

action is temporarily stayed pending resolution of the motion to dismiss,ʺ but

ruling that ʺ[t]o the extent limited discovery becomes necessary in connection

with a factual dispute in the anticipated motion to dismiss, Plaintiff may then

submit proposed narrowly‐tailored and specific requests to the Court for

approval prior to propounding any such request.ʺ  Special App. 4.

Nicosia moved for preliminary injunctive relief on December 19,

2014, requesting an order enjoining Amazon from selling weight loss products

containing sibutramine and requiring Amazon to provide remedial notices to

past consumers of those products.   

On December 24, 2014, Amazon moved to dismiss the complaint.  

Amazon did not move to compel arbitration, but instead argued that the

complaint should be dismissed ʺin favor of individual arbitrationʺ for failure to

state a claim because Nicosia had agreed to arbitration.  Mot. to Dismiss 5, ECF

No. 52‐1.  Amazon submitted the declaration and the exhibits described above.   

The district court granted Amazonʹs motion to dismiss, concluding

that Nicosia failed to state a claim because he was on constructive notice of
‐ 9 ‐ 

Amazonʹs conditions of use.  In doing so, the district court relied on the Order

Page and the 2012 Conditions of Use as well as Amazonʹs assertion that Nicosia

created an Amazon account in 2008 by signing on through the Registration Page,

and used that account to make his purchases of 1 Day Diet.  The district court

then concluded that Nicosia was given reasonable notice of the conditions of use

given:  (1) the conspicuousness of the hyperlink to the 2012 Conditions of Use on

the Order Page; and (2) the fact that Nicosia signed up for an Amazon account

via the Registration Page in 2008, which required assent to the 2008 Conditions of

Use that named King County as the forum for suit but provided that the

conditions were subject to change.   

The district court also concluded that questions as to the validity of

the agreement as a whole had to be submitted to arbitration.  After

acknowledging that courts generally consider the merits of requested injunctive

relief even where the underlying claims will be sent to arbitration, the district

court then held that Nicosia lacked standing to pursue a preliminary injunction,

and that, in any event, he could not obtain this relief because he did not

demonstrate a likelihood of prevailing on the merits of his CPSA claim.   

This appeal followed.
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‐ 10 ‐ 

SCUSSION

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‐ 11 ‐ 

agreed to do so.ʺ  Id. (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford

Junior Univ., 489 U.S. 468, 478 (1989)).   

The question of whether the parties have agreed to arbitrate, i.e., the

ʺquestion of arbitrability,ʺ is an issue for judicial determination unless the parties

clearly and unmistakably provide otherwise.  Howsam v. Dean Witter Reynolds,

Inc., 537 U.S. 79, 83 (2002); see also Bensadoun v. Jobe‐Riat, 316 F.3d 171, 175 (2d Cir.

2003).  ʺThis principle ʹflow[s] inexorably from the fact that arbitration is simply a

matter of contract between the parties.ʹʺ  Wachovia Bank, Natʹl Assʹn v. VCG

Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011) (quoting

First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995)).  The threshold

question of whether the parties indeed agreed to arbitrate is determined by state

contract law principles.  Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 27 (2d Cir.

2002).   

The question of arbitrability usually arises in the context of a motion

to compel arbitration.  Under the FAA, parties can petition the district court for

an order directing that ʺarbitration proceed in the manner provided for in such

agreement.ʺ  9 U.S.C. § 4.  The district court must stay proceedings once it is

ʺsatisfied that the parties have agreed in writing to arbitrate an issue or issues
‐ 12 ‐ 

underlying the district court proceeding.ʺ  WorldCrisa Corp. v. Armstrong, 129 F.3d

71, 74 (2d Cir. 1997) (quoting McMahan Sec. Co. v. Forum Capital Mkts. L.P., 35

F.3d 82, 85 (2d Cir. 1994)).  In deciding motions to compel, courts apply a

ʺstandard similar to that applicable for a motion for summary judgment.ʺ  

Bensadoun, 316 F.3d at 175.  The summary judgment standard requires a court to

ʺconsider all relevant, admissible evidence submitted by the parties and

contained in pleadings, depositions, answers to interrogatories, and admissions

on file, together with . . . affidavits.ʺ  Chambers v. Time Warner, Inc., 282 F.3d 147,

155 (2d Cir. 2002) (internal quotation marks omitted).  In doing so, the court must

draw all reasonable inferences in favor of the non‐moving party.  See Wachovia

Bank, 661 F.3d at 171‐72.   

ʺIf there is an issue of fact as to the making of the agreement for

arbitration, then a trial is necessary.ʺ  Bensadoun, 316 F.3d at 175 (citing 9 U.S.C.

§ 4 (ʺIf the making of the arbitration agreement . . . be in issue, the court shall

proceed summarily to the trial thereof.ʺ)); accord Sphere Drake Ins. Ltd. v.

Clarendon Natʹl Ins. Co., 263 F.3d 26, 30 (2d Cir. 2001).  ʺ[B]ut where the

undisputed facts in the record require the matter of arbitrability to be decided

against one side or the other as a matter of law, we may rule on the basis of that
‐ 13 ‐ 

legal issue and ʹavoid the need for further court proceedings.ʹʺ  Wachovia Bank,

661 F.3d at 172 (quoting Bensadoun, 316 F.3d at 175).  

In this case, Amazon did not move to compel arbitration and instead

moved pursuant to Rule 12(b)(6) to dismiss the complaint for failure to state a

claim upon which relief may be granted, relying on the arbitration provision in

the 2012 Conditions of Use.  See Fed. R. Civ. P. 12(b)(6).  Some district courts in

this Circuit have treated motions to dismiss based on mandatory arbitration

clauses as motions to compel arbitration.  See, e.g., Begonja v. Vornado Realty Tr.,

No. 15 Civ. 4665 (PAE), 2016 WL 356090, at *1 n.1 (S.D.N.Y. Jan. 29, 2016); Cupples

v. Valic Fin. Advisors, Inc., No. 13‐CV‐4501(JS)(AKT), 2014 WL 4662272, at *3

(E.D.N.Y. Sept. 18, 2014); Jillian Mech. Corp. v. United Serv. Workers Union Local

355, 882 F. Supp. 2d 358, 363 (E.D.N.Y. 2012).  The district court here, however,

specifically declined to do so because, it reasoned, Amazon had not explicitly or

implicitly asked the court to order arbitration.  We agree with the district court

that because Amazonʹs motion to dismiss neither sought an order compelling

arbitration nor indicated that Amazon would seek to force Nicosia to arbitrate in

the future, it was proper not to construe the motion to dismiss as a motion to

compel arbitration, to which the summary judgment standard would apply.   
‐ 14 ‐ 

Nicosia argues that the district court erred in not construing

Amazonʹs motion as a motion to compel arbitration, citing Bensadoun v. Jobe‐Riat,

316 F.3d 171 (2d Cir. 2003).  There, we held that it was ʺappropriateʺ to use the

ʺsummary judgment standard . . . in cases where the District Court is required to

determine arbitrability, regardless of whether the relief sought is an order to

compel arbitration or to prevent arbitration.ʺ  Id. at 175.  We did not, however,

hold that the summary judgment standard was ʺmandatoryʺ in such cases.  

When the moving party does not manifest an intention to arbitrate the dispute,

Bensadoun does not require the district court to convert the motion to dismiss to

one to compel.  Here, given the absence of a clear indication of Amazonʹs intent

to compel Nicosia to arbitrate, the district court properly proceeded with the

motion as one to dismiss, without converting it to a motion to compel

arbitration.3  Accordingly, we review the district courtʹs ruling as the grant of a

motion to dismiss pursuant to Rule 12(b)(6).  

We review de novo the dismissal of a complaint pursuant to Rule

12(b)(6), construing the complaint liberally, accepting all factual allegations as

                                               3   We do not decide whether, in the absence of an indication of an intent on

the part of the movant to compel arbitration, the district court has discretion to convert

a motion to dismiss to a motion to compel.  We hold only that the district court did not

err in not converting under the circumstances here.   
‐ 15 ‐ 

true, and drawing all reasonable inferences in the plaintiffʹs favor.  Chen v. Major

League Baseball Props., Inc., 798 F.3d 72, 76 (2d Cir. 2015).  ʺTo survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to

ʹstate a claim to relief that is plausible on its face.ʹʺ  Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).   

A complaint ʺis deemed to include any written instrument attached

to it as an exhibit or any statements or documents incorporated in it by

reference.ʺ  Chambers, 282 F.3d at 152 (quoting Intʹl Audiotext Network, Inc. v.

AT&T Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam)); see also Brass v. Am. Film

Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).  ʺWhere a document is not

incorporated by reference, the court may nevertheless consider it where the

complaint ʹrelies heavily upon its terms and effect,ʹ thereby rendering the

document ʹintegralʹ to the complaint.ʺ  DiFolco v. MSNBC Cable L.L.C., 622 F.3d

104, 111 (2d Cir. 2010) (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d

Cir. 2006)); see also Chambers, 282 F.3d at 153.  A ʺnecessary prerequisiteʺ for

taking into account materials extraneous to the complaint ʺis that the ʹplaintiff

rely on the terms and effect of the document in drafting the complaint; mere

notice or possession is not enough.ʹʺ  Global Network Commc’ns, Inc. v. City of New
‐ 16 ‐ 

York, 458 F.3d 150, 156 (2d Cir. 2006) (alterations omitted) (quoting Chambers, 282

F.3d at 153).  This generally occurs when the material considered is a ʺcontract or

other legal document containing obligations upon which the plaintiffʹs complaint

stands or falls, but which for some reason ‐‐ usually because the document, read

in its entirety, would undermine the legitimacy of the plaintiffʹs claim ‐‐ was not

attached to the complaint.ʺ  Id. at 157.   

Even where a document is considered ʺʹintegralʹ to the complaint, it

must be clear on the record that no dispute exists regarding the authenticity or

accuracy of the document.ʺ  DiFolco, 622 F.3d at 111 (quoting Faulkner v. Beer, 463

F.3d 130, 134 (2d Cir. 2006)).  ʺIt must also be clear that there exist no material

disputed issues of fact regarding the relevance of the document.ʺ  Faulkner, 463

F.3d at 134.  This principle is driven by a concern that a plaintiff may lack notice

that the material will be considered to resolve factual matters.  See Cortec Indus.,

Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).  Thus, if material is not

integral to or otherwise incorporated in the complaint, it may not be considered

unless the motion to dismiss is converted to a motion for summary judgment

and all parties are ʺgiven a reasonable opportunity to present all the material that

is pertinent to the motion.ʺ  Fed. R. Civ. P. 12(d).   
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‐ 17 ‐ 

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‐ 18 ‐ 

Washington courts have not specifically addressed the question of

the reasonableness of notice of additional terms in online contracts, see Kwan v.

Clearwire Corp., No. C09‐1392JLR, 2012 WL 32380, at *8 (W.D. Wash. Jan. 3, 2012)

(noting absence of reported cases), but it is clear that general contract principles

under Washington law apply to agreements made online, see Spam Arrest, LLC v.

Replacements, Ltd., No. C12‐481RAJ, 2013 WL 4675919, at *8 n.10 (W.D. Wash.

Aug. 29, 2013) (finding no authority to ʺsuggest[] that Washington law applies

differently to online contractsʺ).  Indeed, as we have explained on multiple

occasions, ʺnew commerce on the Internet . . . has not fundamentally changed the

principles of contract.ʺ  Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir.

2004); accord Schnabel, 697 F.3d at 124; see also Nguyen v. Barnes & Noble Inc., 763

F.3d 1171, 1175 (9th Cir. 2014).   

Under Washington law, contract formation requires an objective

manifestation of mutual assent.  Keystone Land & Dev. Co. v. Xerox Corp., 152

Wash. 2d 171, 177 (2004) (en banc) (ʺWashington follows the objective

manifestation test for contracts.ʺ); In re Marriage of Obaidi & Qayoum, 154 Wash.

App. 609, 616 (2010) (ʺA valid contract requires a meeting of the minds on the

essential terms.ʺ); see also Wash. Rev. Code § 62A.2‐204.  ʺWhether parties
‐ 19 ‐ 

manifested mutual assent is a question of fact.ʺ  Spam Arrest, 2013 WL 4675919, at

*8 (citing Sea‐Van Invs. Assocs. v. Hamilton, 125 Wash. 2d 120 (1994)).  ʺThe

existence of mutual assent may be deduced from the circumstances . . . .ʺ  Jacobʹs

Meadow Owners Assʹn v. Plateau 44 II, LLC, 139 Wash. App. 743, 765 (2007).  

Where a party has signed a contract without reading it, she can argue that

mutual assent was lacking if she was ʺdeprived of the opportunity to read the

contractʺ or if the contract was not ʺʹplain and unambiguous.ʹʺ  Yakima Cty. (W.

Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wash. 2d 371, 389 (1993)

(quoting Skagit State Bank v. Rasmussen, 109 Wash. 2d 377, 381‐84 (1987)).  ʺSo

long as a[n] [offeree] could have seen a reasonably conspicuous reference to the

. . . Agreement . . . a jury could conclude that [she] manifested assent.ʺ  Spam

Arrest, 2013 WL 4675919, at *8 (citing M.A. Mortenson Co. v. Timberline Software

Corp., 140 Wash. 2d 568 (2000) (en banc)).   

Washington has also upheld the validity of shrinkwrap agreements,

endorsing the view that ʺ[n]otice on the outside, terms on the inside, and a right

to return the software for a refund if the terms are unacceptable . . . may be a

means of doing business valuable to buyers and sellers alike.ʺ  M.A. Mortenson,

140 Wash. 2d at 582‐83 (quoting ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1451 (7th
‐ 20 ‐ 

Cir. 1996)).  The validity of shrinkwrap agreements assumes that buyers have

notice of the existence of standard adhesion terms, even if they are not read or

understood.  See id. at 584 (enforcing terms of adhesion where text of terms were

ʺset forth explicitly or referenced in numerous locationsʺ); Hill v. Gateway 2000,

Inc., 105 F.3d 1147, 1148 (7th Cir. 1997) (relying on fact that plaintiffs ʺconcede[d]

noticing the statement of terms [on the box], but den[ied] reading itʺ); see also

Specht, 306 F.3d at 33‐34 (distinguishing shrinkwrap cases as instances where

notice of existence of additional terms was provided).   

Manifestation of assent to an online contract is not meaningfully

different, and can be accomplished by ʺwords or silence, action or inaction,ʺ so

long as the user ʺintends to engage in the conduct and knows or has reason to

know that the other party may infer from his conduct that he assents.ʹʺ  Schnabel,

697 F.3d at 120 (footnote omitted) (quoting Restatement (Second) of Contracts §

19(2) (1981)).  As with paper contracts or shrinkwrap agreements, to be bound,

an internet user need not actually read the terms and conditions or click on a

hyperlink that makes them available as long as she has notice of their existence.  

See id. at 121 (ʺAs a general principle, an offeree cannot actually assent to an offer

unless the offeree knows of its existence.ʺ (internal quotation marks omitted));
‐ 21 ‐ 

Specht, 306 F.3d at 29‐30 (ʺ[C]licking on a . . . button does not communicate assent

to contractual terms if the offer did not make clear to the consumer that clicking

on the . . . button would signify assent to those terms.ʺ).  

Under Washington law, a person has notice of a fact if she ʺ[h]as

actual knowledge of it.ʺ  Wash. Rev. Code § 62A.1‐202(a)(1); see also Register.com,

356 F.3d at 402‐03 (concluding that website user who manifested assent with

actual knowledge of terms was bound by them).  Where there is no actual notice

of contract terms, ʺan offeree is still bound by the provision if he or she is on

inquiry notice of the term and assents to it through the conduct that a reasonable

person would understand to constitute assent.ʺ  Schnabel, 697 F.3d at 120; see also

Wash. Rev. Code Ann. §§ 62A.1‐202(a)(3), (d) (charging person with inquiry

notice if she ʺhas reason to know that it existsʺ ʺ[f]rom all the facts and

circumstances known to the person at the time in questionʺ or has received

notification of it from someone who took ʺsuch steps as may be reasonably

required to inform the other person in ordinary courseʺ).  

One common way of alerting internet users to terms and conditions

is via a ʺclickwrapʺ agreement, which typically requires users to click an ʺI agreeʺ 

box after being presented with a list of terms or conditions of use.  See
‐ 22 ‐ 

Register.com, 356 F.3d at 402‐03, 429.  Clickwraps force users to ʺexpressly and

unambiguously manifest either assent or rejection prior to being given access to

the product.ʺ  Id. at 429.  In contrast, ʺbrowsewrapʺ agreements involve terms

and conditions posted via hyperlink, commonly at the bottom of the screen, and

do not request an express manifestation of assent.  See Specht, 306 F.3d at 31‐32

(describing what would later be termed ʺbrowsewrapʺ).  In determining the

validity of browsewrap agreements, courts often consider whether a website user

has actual or constructive notice of the conditions.  See id. at 32; Schnabel, 697 F.3d

at 129 n.18 (noting that browsewrap provisions are generally enforced only if

ʺthe website user . . . had actual or constructive knowledge of the siteʹs terms and

conditions, and . . . manifested assent to themʺ (quoting Cvent, Inc. v. Eventbrite,

Inc., 739 F. Supp. 2d 927, 937‐38 (E.D. Va. 2010))); see also In re Zappos.com, Inc.,

Customer Data Sec. Breach Litig., 893 F. Supp. 2d 1058, 1063‐64 (D. Nev. 2012)

(ʺ[T]he determination of the validity of a browsewrap contract depends on

whether the user has actual or constructive knowledge of a websiteʹs terms and

conditions.ʺ).   

Whether there was notice of the existence of additional contract

terms presented on a webpage depends heavily on whether the design and
‐ 23 ‐ 

content of that webpage rendered the existence of terms reasonably conspicuous.  

See Nguyen, 763 F.3d at 1177‐78; Spam Arrest, 2013 WL 4675919, at *8.  ʺClarity

and conspicuousness of arbitration terms are important in securing informed

assent.ʺ  Specht, 306 F.3d at 30.  Thus, when terms are linked in obscure sections

of a webpage that users are unlikely to see, courts will refuse to find constructive

notice.  See id. at 30‐32 (finding insufficient notice where only reference to

conditions of use was at the bottom of screen via hyperlink and webpage did not

indicate that ʺdownload nowʺ button constituted agreement to terms and

conditions); Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362, 367 (E.D.N.Y. 2009)

(finding no notice where ʺwebsite did not prompt [the user] to review the Terms

and Conditions and . . . the link to the Terms and Conditions was not

prominently displayed so as to provide reasonable notice of the Terms and

Conditionsʺ); Zappos.com, 893 F. Supp. 2d at 1064 (concluding user did not

manifest assent to conditions of use that were ʺinconspicuous, buried in the

middle to bottom of every . . . webpage among many other links, and the website

never directs a user to the Terms of Useʺ).
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‐ 24 ‐ 

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‐ 25 ‐ 

to the contracts and request[ed] judicial interpretation of their termsʺ).  Therefore

the district court properly considered them.4   

The district court also relied on additional extrinsic materials in

dismissing the complaint.  Specifically, the district court relied on Amazonʹs

assertion that Nicosiaʹs purchases were made using an account created in 2008

and that to have registered for an account in 2008 one must have checked a box

on the Registration Page, acknowledging acceptance of the 2008 Conditions of

Use.  Based on those assertions, the district court concluded that Nicosia himself

created the account in 2008 and personally assented to the 2008 Conditions of

Use.  This was error, as those facts were neither alleged in nor integral to the

complaint.  Most importantly, their authenticity and relevance were disputed

below.   

                                               4   The district court relied on the corrected version of the Order Page ʺfor

items sold by third‐party sellersʺ on Amazon, rather than the screenshot initially

submitted by Amazon in error depicting the order screen for ʺcertain products

manufactured by Amazon.ʺ  On appeal, Nicosia disputes this finding, contending that

the court should have relied on the earlier submission because his complaint alleges

that he purchased 1 Day Diet from Amazon, not a third‐party seller.  However, there is

no allegation that Amazon manufactured 1 Day Diet.  Further, while the later

submission is described by Amazon as depicting the Order Page ʺfor items sold by

third‐party sellers,ʺ Amazon does not contest its role as an additional seller of the

product.  Nevertheless, because the pages are substantially the same, our analysis and

conclusion would be essentially the same if we used the earlier submission instead.  A

copy of the earlier submission is attached as Addendum C.  
‐ 26 ‐ 

First, contrary to the district courtʹs assertion, Nicosia did not admit

to or allege that he created an account with Amazon in 2008.  Nowhere in the

complaint does Nicosia so allege.  Nor is the Registration Page integral to the

complaint, as Nicosia did not ʺrel[y] heavily upon its terms and effectʺ in

drafting his complaint, in contrast to the Order Page and 2012 Conditions of Use.  

Chambers, 282 F.3d at 153 (quoting Intʹl Audiotext, 62 F.3d at 72).  Account

registration with Amazon in 2008 was ʺneither mentioned nor relied uponʺ by

Nicosia, and its nexus to the contract relied upon is ʺtoo attenuated to render [it]

integral to the complaint.ʺ  Global Network, 458 F.3d at 156; see Chambers, 282 F.3d

at 154 (holding that certain codes of fair practice were improperly considered

despite the fact that they may be incorporated into the contract).  

Second, because Nicosia disputes the accuracy and authenticity of

the 2008 registration, the Registration Page and disputed fact of Nicosiaʹs

registration should not have been considered at the motion to dismiss stage.  See

Faulkner, 463 F.3d at 134 (ʺ[E]ven if a document is ʹintegralʹ to the complaint, it

must be clear on the record that no dispute exists regarding the authenticity or

accuracy of the document.ʺ).  The Amazon declarations assert that:  (1) to make a

purchase on Amazon.com, a registered account had to be used; and (2) Nicosiaʹs
‐ 27 ‐ 

purchases were made using an account created in 2008.  Even assuming these

statements to be true, they do not exclude the possibility that Nicosia used an

account that he did not create.  Nicosia could have used a shared account created

by a member of his family to make his purchases.  Further, the generic

Registration Page screenshot submitted by Amazon was apparently captured in

2014, as indicated by the 2014 copyright notice at the bottom of the page.  See

Add. A.  While Amazon asserts that the webpage depicts a version that Nicosia

allegedly saw in 2008, there is nothing in the record to suggest that the

Registration Page did not change ‐‐ as some of the conditions of use and

arbitration clause did ‐‐ in the intervening six years.   

Finally, the relevance of the 2008 registration is disputed, as the

parties disagree about whether and how the account registration relates to the

contractual relationship.  See Faulkner, 463 F.3d at 134 (ʺIt must also be clear that

there exist no material disputed issues of fact regarding the relevance of the

document.ʺ); Chambers, 282 F.3d at 154 (ʺ[T]he parties disagree as to whether and

how the Codes relate to or affect the contractual relationships at issue.ʺ).  The

2008 Conditions of Use that Nicosia would have been bound to at the time of

alleged registration listed King County as the exclusive forum in which to bring
‐ 28 ‐ 

suit.  It did not include an arbitration provision.  While the 2008 Conditions of

Use did reserve Amazonʹs right to change those terms at any time, this did not

necessarily bind Nicosia to any change of terms without notice.  Under

Washington contract law, such unilateral modifications are only binding if there

is notice and assent to the changed terms.  See Gaglidari v. Dennyʹs Rests., Inc., 117

Wash. 2d 426, 435 (1991) (holding employee was not bound by unilateral changes

to company policy because she did not receive reasonable notice of changes).   

Therefore, while the district court correctly incorporated the Order

Page and 2012 Conditions of Use as integral to the complaint, it erred in

considering the Registration Page and 2008 Conditions of Use on a motion to

dismiss.  

2. Whether Nicosia Plausibly Stated That There Was No

Constructive Notice of the 2012 Conditions of Use

Considering only the allegations in the complaint, the Order Page,

and the 2012 Conditions of Use linked thereto, we conclude that Nicosia

plausibly stated a claim for relief.   

Nicosia argues that the 2012 Conditions of Use were a browsewrap

agreement.  Amazon, like the district court, maintains that the agreement here

was neither a clickwrap agreement nor a browsewrap agreement; rather, it was
‐ 29 ‐ 

something in between.  An Amazon purchaser was not required to click an ʺI

agreeʺ box after being presented with a list of terms and conditions.  Nor was the

purchaser simply left to browse the page, as she was asked to click on a ʺPlace

your orderʺ button after being told elsewhere on the page that ʺBy placing your

order, you agree to Amazon.comʹs privacy notice and conditions of use,ʺ with the

latter phrase hyperlinked to the 2012 Conditions of Use.  Add. B.  For purposes

of this appeal, we assume without deciding that the agreement was a hybrid

between a clickwrap and a browsewrap agreement.  In making this assumption,

we do not mean to suggest that a ʺhybridʺ agreement is a type of agreement that

Washington law would recognize as such.  The question is whether a reasonably

prudent offeree would know that the 2012 Conditions of Use governed, such that

her purchase manifested implied assent to the additional terms.  See Specht, 306

F.3d at 29; see also Schnabel, 697 F.3d at 120 (ʺ[I]n cases such as this, where the

purported assent is largely passive, the contract‐formation question will often

turn on whether a reasonably prudent offeree would be on inquiry notice of the

term at issue.ʺ); cf. Nguyen, 763 F.3d at 1177 (ʺ[T]he validity of the browsewrap

agreement turns on whether the website puts a reasonably prudent user on

inquiry notice of the terms of the contract.ʺ).  
‐ 30 ‐ 

Turning to the Order Page, we are not convinced that notice was

sufficient as a matter of Washington law.  Near the top of the page, below the

ʺReview your orderʺ heading, the critical sentence appears in smaller font: ʺBy

placing your order, you agree to Amazon.comʹs privacy notice and conditions of

use.ʺ  Add. B.  The phrases ʺprivacy noticeʺ and ʺconditions of useʺ appear in

blue font, indicating that they are clickable links to separate webpages.  The body

of the page summarizes the userʹs purchase and delivery information.  Among

other things, users are shown their shipping address, billing address, and

payment method, and given the option to edit that information or ʺtry Amazon

Locker.ʺ  Users are also given the opportunity to change the delivery date, enter

gift cards and promotional codes, and sign up for ʺFREE Two‐Day Shipping with

a free trial of Amazon Prime.ʺ  The Amazon Prime promotion features the words

ʺFREE Two‐Day Shippingʺ four times in the center of the page, appearing in

orange, green, and black fonts, and in white font against an orange banner.  On

the right side of the page appears a ʺPlace your orderʺ button above a box with

the heading ʺOrder Summary.ʺ  The Order Summary box lists the cost of the

items to be purchased, shipping and handling costs, total price before tax,

estimated tax to be collected, purchase total, gift card amount, and order total.  
‐ 31 ‐ 

The words ʺOrder totalʺ appear in bold, red font.  A large area in the center of the

page has been redacted, but presumably features a picture of the product being

purchased, its name, price, quantity, stock and seller information, and gifting

options.  Near the bottom of the page, there are a number of sentences in faint,

black font directing users to links to other Amazon webpages for additional

information, such as tax and seller information, customer assistance pages, and

product return policies.  At the very bottom of the page, links to the Conditions

of Use and Privacy Policy appear again in blue, next to Amazonʹs copyright

notice.   

Notably, unlike typical ʺclickwrapʺ agreements, clicking ʺPlace your

orderʺ does not specifically manifest assent to the additional terms, for the

purchaser is not specifically asked whether she agrees or to say ʺI agree.ʺ  Cf.

Register.com, 356 F.3d at 402‐03, 429 & n.41.  Nothing about the ʺPlace your orderʺ 

button alone suggests that additional terms apply, and the presentation of terms

is not directly adjacent to the ʺPlace your orderʺ button so as to indicate that a

user should construe clicking as acceptance.  Cf. Fteja v. Facebook, Inc., 841 F.

Supp. 2d 829, 835, 840 (S.D.N.Y. 2012) (finding Facebook user was ʺinformed of

the consequences of his assenting clickʺ because he was shown, immediately
‐ 32 ‐ 

below the ʺSign Upʺ button, a notice stating, ʺBy clicking Sign Up, you are

indicating that you have read and agree to the Terms and Serviceʺ).

The message itself ‐‐ ʺBy placing your order, you agree to

Amazon.comʹs . . . conditions of useʺ ‐‐ is not bold, capitalized, or conspicuous in

light of the whole webpage.  Cf. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585,

587, 589 (1991) (enforcing forum selection clause printed on a cruise ticket where

notice of conditions was printed in bold font and capital letters on the front of the

ticket); Starkey v. G Adventures, Inc., 796 F.3d 193, 197 (2d Cir. 2015) (multiple

bolded, capitalized headings alerting customers of terms and conditions was

sufficiently reasonable notice).  Proximity to the top of a webpage does not

necessarily make something more likely to be read in the context of an elaborate

webpage design.  See Nguyen, 763 F.3d at 1179 (ʺ[E]ven close proximity of the

hyperlink to relevant buttons users must click on ‐‐ without more ‐‐ is insufficient

to give rise to constructive notice.ʺ).  There are numerous other links on the

webpage, in several different colors, fonts, and locations, which generally

obscure the message.  See Zappos.com, 893 F. Supp. 2d at 1064 (ʺThe Terms of Use

is inconspicuous, buried in the middle to bottom of every Zappos.com webpage

among many other links, and the website never directs a user to the Terms of
‐ 33 ‐ 

Use.ʺ).  Although it is impossible to say with certainty based on the record, there

appear to be between fifteen and twenty‐five links on the Order Page, and

various text is displayed in at least four font sizes and six colors (blue, yellow,

green, red, orange, and black), alongside multiple buttons and promotional

advertisements.  Further, the presence of customersʹ personal address, credit card

information, shipping options, and purchase summary are sufficiently

distracting so as to temper whatever effect the notification has.  See Nguyen, 763

F.3d at 1179 (ʺGiven the breadth of the range of technological savvy of online

purchasers, consumers cannot be expected to ferret out hyperlinks to terms and

conditions to which they have no reason to suspect they will be bound.ʺ).  

To draw on Judge Levalʹs analogy in Register.com,

5 it is as if an apple

stand visitor walks up to the shop and sees, above the basket of apples, a wall

filled with signs.  Some of those signs contain information necessary for her

purchase, such as price, method of payment, and delivery details, and are

displayed prominently in the center of the wall.  Others she may quickly

                                               5   In Register.com, Judge Leval provided an apple stand analogy to describe

the basis for imputing constructive knowledge on a repeat consumer who is alerted to

terms of use after each purchase.  356 F.3d at 401; see Schnabel, 697 F.3d at 124‐25.  This

analogy was extended in Ftejaʹs description of imputing knowledge of terms contained

in an unclicked hyperlink, so long as the consequences of assenting are conveyed and

the user is directed where to click to view the additional terms.  841 F. Supp. 2d at 839‐

40.  
‐ 34 ‐ 

disregard, including advertisements for other fruit stands.  Among them is a sign

binding her to additional terms as a condition of her purchase.  Has the apple

stand owner provided reasonably conspicuous notice?  

We think reasonable minds could disagree.  

In a seeming effort to streamline customer purchases, Amazon chose

not to employ a clickwrap mechanism.  While clickwrap agreements that display

terms in a scrollbox and require users to click an icon are not necessarily

required, see Register.com, 356 F.3d at 403 (an offeree need not specifically assent

to certain terms by clicking an ʺI agreeʺ icon so long as the offeree ʺmakes a

decision to take the benefit with knowledge of the terms of the offerʺ), they are

certainly the easiest method of ensuring that terms are agreed to, see Starkey, 796

F.3d at 197 n.3 (noting that it would have been ʺsimpler to resolveʺ this question

had a clickwrap mechanism been used).

To be clear, we do not hold that there was no objective manifestation

of mutual assent here as a matter of law.  Rather, we conclude simply that

reasonable minds could disagree on the reasonableness of notice.  See Cascade

Auto Glass, Inc. v. Progressive Cas. Ins. Co., 135 Wash. App. 760, 767 (2006)

(ʺWhether particular notice was reasonable is ordinarily a question of fact for the
‐ 35 ‐ 

jury.ʺ).6  We therefore hold that Amazon has failed to show that Nicosia was on

notice and agreed to mandatory arbitration as a matter of law.  The district court

thus erred in concluding that Nicosia had failed to state a claim under Rule

12(b)(6).7   

II. The Motion for a Preliminary Injunction

Nicosia moved for a preliminary injunction requesting that:  (1)

remedial notices be sent to past purchasers of products containing sibutramine;

and (2) measures be put in place to prevent Amazon from unwittingly selling

other products containing sibutramine.  The district court concluded that Nicosia

lacked standing for an injunction because he ʺfailed to plead facts that would

permit the plausible inference that [he is] in danger of being wronged again.ʺ  

Special App. 27 (internal quotation marks omitted).   

                                               6   Although ʺthe making of the arbitration agreement . . . [is] in issue,ʺ no

ʺtrialʺ is required at this time because neither side has ʺpetition[ed] . . . for an order

directing that such arbitration proceed.ʺ  9 U.S.C. § 4; see Bensadoun, 316 F.3d at 175

(ʺThe present case does not fall squarely under section 4 of the FAA or the cases

interpreting it because the [defendants] never cross‐moved to compel arbitration, and

the FAA does not provide for petitions (such as [plaintiff]ʹs) brought by the party

seeking to stay arbitration.ʺ).

7   Nicosia appeals the district courtʹs determination that challenges on the

basis of contract illegality ab initio are subject to arbitration.  As we have decided that

factual questions remain as to the formation of the agreement to arbitrate, we need not

reach that question.  
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‐ 36 ‐ 

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‐ 37 ‐ 

requirement, ʺ(1) the plaintiff must have suffered an injury‐in‐fact; (2) there must

be a causal connection between the injury and the conduct at issue; and (3) the

injury must be likely to be redressed by a favorable decision.ʺ  Jewish People for the

Betterment of Westhampton Beach v. Vill. of Westhampton Beach, 778 F.3d 390, 394 (2d

Cir. 2015) (quoting Cooper v. USPS, 577 F.3d 479, 489 (2d Cir. 2009)).  For each

form of relief sought, a plaintiff ʺmust demonstrate standing separately.ʺ  Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).  A

plaintiff seeking to represent a class must personally have standing.  Lewis v.

Casey, 518 U.S. 343, 357 (1996).  

Plaintiffs lack standing to pursue injunctive relief where they are

unable to establish a ʺreal or immediate threatʺ of injury.  City of Los Angeles v.

Lyons, 461 U.S. 95, 111‐12 (1983); Shain, 356 F.3d at 215‐16.  Although past injuries

may provide a basis for standing to seek money damages, they do not confer

standing to seek injunctive relief unless the plaintiff can demonstrate that she is

likely to be harmed again in the future in a similar way.  See DeShawn E. ex rel.

Charlotte E. v. Safir, 156 F.3d 340, 344‐45 (2d Cir. 1998).  While ʺenhanced riskʺ of

future injury may constitute injury‐in‐fact in certain circumstances, such injuries

are only cognizable where the plaintiff alleges actual future exposure to that
increase

(holdin

butcher

disease

2002) (c

emissio

B

likeliho

Day Die

result, h

Amazon

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Amazon

general

Baur, 35

exposur

ed risk.  Se

g that plai

ring non‐am

as a consu

concluding

ons qualifie

B. Appl

We a

ood of futu

et resulted

he has not

n of produ

its website

n in the fu

lly or weig

52 F.3d at 6

reʺ by virtu

ee Baur v. V

intiff has st

mbulatory

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g that likeli

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lication

agree with

ure or conti

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and that he

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‐ 38 ‐ 

52 F.3d 62

o seek injun

ause of pla

ur v. Whitm

xposure to

ct court tha

rm.  Even a

e may con

ely to be su

tramine.  A

ailed to alle

ducts, let a

particular.

ntiff estab

a regular c

25, 633‐35,

nction to s

aintiffʹs en

man, 300 F.3

o additiona

at Nicosia

assuming h

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640‐42 (2d

stop defend

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al sulfur d

did not es

his past pu

uffer conse

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as ceased s

e intends t

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pl. ¶ 15, EC

present, imm

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d Cir. 2003)

dants from

sk of mad

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dioxide

stablish a

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equences a

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to use

roducts

CF No. 1; cf

mediate risk

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)

m

cow

of 1

as a

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cf.

k of
‐ 39 ‐ 

Nicosiaʹs remaining arguments are meritless.  The district court was

correct in concluding that the private cause of action provided by the CPSA, 15

U.S.C. § 2073, is unable to confer standing to enforce provisions in the Poison

Prevention Packaging Act (the ʺPPPAʺ) relating to child‐proof packaging

requirements for controlled drugs.  Compare 15 U.S.C. § 2052(a)(5)(H) (excluding

ʺdrugs, devices, or cosmeticsʺ from the definition of ʺconsumer productʺ in the

CPSA), with 16 C.F.R. § 1700.14(a)(4), (10) (requiring child‐proof packaging for

ʺControlled drugsʺ and ʺPrescription drugsʺ under the PPPA).

CONCLUSION

For the reasons set forth above, the order of the district court is

AFFIRMED in part and VACATED in part, and the case is REMANDED for

further proceedings.
ADDENDUM A (J. App. 25)
ADDENDUM B (J. App. 91)
ADDENDU

‐ 42 ‐ 

M C (J. App. 27)