Nicosia v. Amazon.com, Inc., No. 15-423 (2d Cir. 2016)
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After plaintiff purchased a "1 Day Diet" weight loss product containing sibutramine, a controlled substance that had been removed from the market in October 2010, on Amazon.com, he filed suit alleging claims under the Consumer Product Safety Act (CPSA), 15 U.S.C. 2051 et seq., and state law. The district court dismissed the complaint based on the ground that the parties are bound by the mandatory arbitration provision in Amazon's Conditions of Use. The court concluded that the district court erred in concluding that plaintiff failed to state a claim under Rule 12(b)(6) and held that Amazon failed to show that plaintiff was on notice and agreed to mandatory arbitration as a matter of law. The court agreed with the district court that plaintiff did not establish a likelihood of future or continuing harm where, even assuming his past purchase of the product resulted in injury and that he may continue to suffer consequences as a result, he failed to show that he is likely subjected to further sales by Amazon of products containing sibutramine. Finally, the court concluded that plaintiff's remaining arguments are meritless. Accordingly, the court affirmed the district courtʹs denial of plaintiffʹs motion for a preliminary injunction, but vacated the dismissal for failure to state a claim and remanded for further proceedings.
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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 plaintiff s complaint for failure to state a claim on the grounds that plaintiff s 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. 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 & O Reardon, 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. ( Amazon ). Nicosia brought this action below, asserting 2 claims u under the Consumer r Product S Safety Act (the CPSA ), 15 U.S S.C. § 2051 1 et seq., and d state law w. The d district cou urt (Towne es, J.) dism missed the c complaint t on the ground d that the p parties are b bound by the manda atory arbit tration pro ovision in Amazon n s Condit tions of Us se. It found d that Nico osia was o on construc ctive notice of the term ms and tha at he assent ted to man ndatory arb rbitration w when he pl laced his order on n the webs site. In the e same me emorandum m and ord der, the district court as a motio treated Nicosia s m motion for r prelimina ary injunct tive relief a on for a nary injun nction in ai id of arbitr ration, and d denied th he motion on the gro ound prelimin that he lacked standing to seek an inju unction blo ocking Am mazon from m selling items co ontaining s sibutramin ne and req quiring Am mazon to se end remed dial notices s to consum mers. We a affirm the d district cou urt s denia al of injunc ctive relief, , vacate the e dismiss sal for failu ure to state e a claim, a and reman nd for furth her proceedings. BACK KGROUND D I. The Facts T A. A As Alleged in t the Compla aint Nicosia is an A Amazon customer. O On both Jan nuary 30 a and April 1 19, 2013, he e used the Amazon w website to purchase 1 Day Diet t (One Day y Diet) Best 3 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 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. Amazon has since stopped selling 1 Day Diet but never notified Nicosia that 1 Day Diet contained the stimulant or offered to refund his 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. 1 4 purchas ses. As of the filing o of the com mplaint in J July 2014, A Amazon continued t to sell othe er weight l loss produ ucts identif fied by the e FDA as c containing undisclosed amount ts of sibutr ramine. B. B Addi itional Fac ctual Asser rtions In mo oving to d dismiss the complain nt, Amazon n submitted a declarat tion of a paralegal in n its legal d departmen nt, who rep presented that Amazon n s records s showed t that Nicosia used an n Amazon account cr reated on J June 9, 2008 to make hi is purchas ses and tha at the purc chases wer re made in January a and 013. Attac ched to the e declaratio on was a sc creenshot of Amazo on s accoun nt April 20 registra ation webp page appar rently in us se in 2008, , bearing a a copyright t notice da ated 1996 20 014 (the Registratio on Page ). The decla aration also attached d a screenshot of Ama azon s orde er page, be earing a copyright no otice dated d 1996 201 14 ; a customer purchas sing an item m in 2013 apparently y would h have seen t this screen before c completing g a purcha ase. Amazon later su ubmitted a a corrected d version of the orde er page, al lso bearing g a copyrig ght notice d dated 199 96 2014 (th he Order Page ).2 The e earlier versi ion was sub bmitted in e error, as it d depicted an n order scre een for prod ducts manu ufactured b by Amazon, , rather than n products s sold by thi ird parties. J. App. 88. Copies of f the Registr ration Page e and the O Order Page a are each rep produced a as Addend dum A and Addendum m B, respect tively. 2 5 The Registration Page and the Order Page both included a link to Amazon s Conditions of Use. 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 ( 2012 Conditions of Use ). 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 Amazon s assertions that he had registered for an Amazon account. He also introduced a copy of Amazon s prior conditions of use, which his counsel contended were in place in 2008 ( 2008 Conditions of Use ). These did not include an arbitration provision, but merely included a choice of forum clause designating any state or federal court in King County, Washington, as the forum with exclusive jurisdiction and venue over consumer claims exceeding $7,500. J. App. 50. 6 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 Amazon s mandatory arbitration provision. The district court stayed discovery pending resolution of Amazon s anticipated motion to dismiss. On October 2, 2014, Nicosia sought reconsideration of the district court s stay of discovery with respect to subjects put at issue by Defendant s requested motions to dismiss Plaintiff s individual claims and to compel arbitration. Pl. s Ltr. 1, ECF No. 23. Nicosia requested discovery concerning his individual purchases of 1 Day Diet . . . from Amazon, and discovery supporting Amazon s claims that Plaintiff provided his individual consent to arbitrate his 7 claims made in this action. Id. at 2. The district court denied Nicosia s motion for reconsideration of the discovery stay, clarifying that all discovery in this action is temporarily stayed pending resolution of the motion to dismiss, but ruling that [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. 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 in favor of individual arbitration 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 Amazon s motion to dismiss, concluding that Nicosia failed to state a claim because he was on constructive notice of 8 Amazon s conditions of use. In doing so, the district court relied on the Order Page and the 2012 Conditions of Use as well as Amazon s 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. 9 DIS SCUSSION N We c consider fir rst the dist trict court s s motion to o s grant of Amazon s dismiss s and secon nd its deni ial of Nicos sia s motio on for a pre n. eliminary injunction I. The Motion T n to Dismi iss A. A Appl licable Law w The p principal is ssue prese ented is wh hether Nic cosia is bou und by the e mandat tory arbitra ation prov vision in Amazon s C Conditions s of Use. P Procedural and substan ntive quest tions of law w are impl licated. 1. Procedur ral Framew work The F Federal Ar rbitration A Act (the F FAA ) prov vides that [a] writte en provisio on in . . . a contract . . . to settle e by arbitra ation a con ntroversy t thereafter arising out of [the e] contract . . . shall b be valid, irr revocable, , and enfor rceable. 9 9 U.S.C. § § 2. The Su upreme Co ourt has re epeatedly i instructed that the FAA embod d[ies] [a] na ational pol licy favorin ng arbitrat tion. AT& &T Mobilit ty LLC v. Concepc cion, 563 U.S. 333, 346 6 (2011) (se econd alte eration in o original) (q quoting Buckeye e Check Cashing, Inc. v v. Cardegna a, 546 U.S. 440, 443 (2 2006)). [T T]his policy y is founded d on a desire to preserve the parties abil lity to agre ee to arbitr rate, rather r than liti igate, disp putes. Sch hnabel v. Tr rilegiant Co orp., 697 F.3 3d 110, 118 8 (2d Cir. 2012). B But the FA AA does n not require parties to arbitrate w when they y have not 10 agreed to do so. 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 question of arbitrability, 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). This principle flow[s] inexorably from the fact that arbitration is simply a matter of contract between the parties. Wachovia Bank, Nat l Ass n 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 arbitration proceed in the manner provided for in such agreement. 9 U.S.C. § 4. The district court must stay proceedings once it is satisfied that the parties have agreed in writing to arbitrate an issue or issues 11 underlying the district court proceeding. 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 standard similar to that applicable for a motion for summary judgment. Bensadoun, 316 F.3d at 175. The summary judgment standard requires a court to consider all relevant, admissible evidence submitted by the parties and contained in pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . affidavits. 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. If there is an issue of fact as to the making of the agreement for arbitration, then a trial is necessary. Bensadoun, 316 F.3d at 175 (citing 9 U.S.C. § 4 ( If the making of the arbitration agreement . . . be in issue, the court shall proceed summarily to the trial thereof. )); accord Sphere Drake Ins. Ltd. v. Clarendon Nat l Ins. Co., 263 F.3d 26, 30 (2d Cir. 2001). [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 12 legal issue and avoid the need for further court proceedings. 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 Amazon s 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. 13 Nicosia argues that the district court erred in not construing Amazon s 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 appropriate to use the summary 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. Id. at 175. We did not, however, hold that the summary judgment standard was mandatory 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 Amazon s 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 court s 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 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. 3 14 true, and drawing all reasonable inferences in the plaintiff s favor. Chen v. Major League Baseball Props., Inc., 798 F.3d 72, 76 (2d Cir. 2015). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Chambers, 282 F.3d at 152 (quoting Int l 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). Where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint. 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 necessary prerequisite for taking into account materials extraneous to the complaint is that the plaintiff rely on the terms and effect of the document in drafting the complaint; mere notice or possession is not enough. Global Network Commc’ns, Inc. v. City of New 15 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 contract or other legal document containing obligations upon which the plaintiff s complaint stands or falls, but which for some reason usually because the document, read in its entirety, would undermine the legitimacy of the plaintiff s claim was not attached to the complaint. Id. at 157. Even where a document is considered integral to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document. DiFolco, 622 F.3d at 111 (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)). It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document. 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 given a reasonable opportunity to present all the material that is pertinent to the motion. Fed. R. Civ. P. 12(d). 16 um, when i it is appare ent on th he face of t the compla aint and In su docume ents prope erly incorp porated the erein tha at claims ar re subject t to arbitrati ion, a distric ct court ma ay dismiss s in favor o of arbitrati ion withou ut the delay y of discove ery. See Gu uidotti v. Le egal Helpers Debt Reso olution, L.L L.C., 716 F. .3d 764, 77 74 76 (3d Cir. . 2013). If, however, there is a dispute as s to the rele evance, au uthenticity, , or accurac cy of the do ocuments relied upo on, the dist trict court may not d dismiss the e complaint with th hose mater rials in min nd. Cf. Cha ambers, 282 2 F.3d at 154. If the district court is go oing to rely y on the ex xtrinsic ma aterials, th he proper c course is to o t the motio on to a mot tion for summary jud dgment di ismissing t the case in n convert favor of f arbitratio on, after pr roviding notice to the e parties a and an opp portunity t to be heard. 2. Substant tive Law State law princ ciples of co ontract form mation gov vern the ar rbitrability y question n. See Spec cht, 306 F.3 3d at 27. T The district t court app plied Wash hington law w on the q question of f contract f formation, , and the p parties do n not challen nge that decision n on appea al. The det terminatio on of wheth her parties s have con ntractually bound t themselves to arbitra ate under s state law is subject to o de novo r review. Se ee id. at 26. 17 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 suggest[] that Washington law applies differently to online contracts ). Indeed, as we have explained on multiple occasions, new commerce on the Internet . . . has not fundamentally changed the principles of contract. 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) ( Washington follows the objective manifestation test for contracts. ); In re Marriage of Obaidi & Qayoum, 154 Wash. App. 609, 616 (2010) ( A valid contract requires a meeting of the minds on the essential terms. ); see also Wash. Rev. Code § 62A.2 204. Whether parties 18 manifested mutual assent is a question of fact. Spam Arrest, 2013 WL 4675919, at *8 (citing Sea Van Invs. Assocs. v. Hamilton, 125 Wash. 2d 120 (1994)). The existence of mutual assent may be deduced from the circumstances . . . . Jacob s Meadow Owners Ass n 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 deprived of the opportunity to read the contract or if the contract was not plain and unambiguous. 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)). So long as a[n] [offeree] could have seen a reasonably conspicuous reference to the . . . Agreement . . . a jury could conclude that [she] manifested assent. 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 [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. M.A. Mortenson, 140 Wash. 2d at 582 83 (quoting ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1451 (7th 19 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 set forth explicitly or referenced in numerous locations ); Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1148 (7th Cir. 1997) (relying on fact that plaintiffs concede[d] noticing the statement of terms [on the box], but den[ied] reading it ); 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 words or silence, action or inaction, so long as the user intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents. 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 ( As a general principle, an offeree cannot actually assent to an offer unless the offeree knows of its existence. (internal quotation marks omitted)); 20 Specht, 306 F.3d at 29 30 ( [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. ). Under Washington law, a person has notice of a fact if she [h]as actual knowledge of it. 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, an 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. 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 has reason to know that it exists [f]rom all the facts and circumstances known to the person at the time in question or has received notification of it from someone who took such steps as may be reasonably required to inform the other person in ordinary course ). One common way of alerting internet users to terms and conditions is via a clickwrap agreement, which typically requires users to click an I agree box after being presented with a list of terms or conditions of use. See 21 Register.com, 356 F.3d at 402 03, 429. Clickwraps force users to expressly and unambiguously manifest either assent or rejection prior to being given access to the product. Id. at 429. In contrast, browsewrap 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 browsewrap ). 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 the website user . . . had actual or constructive knowledge of the site s terms and conditions, and . . . manifested assent to them (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) ( [T]he determination of the validity of a browsewrap contract depends on whether the user has actual or constructive knowledge of a website s terms and conditions. ). Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and 22 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. Clarity and conspicuousness of arbitration terms are important in securing informed assent. 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 download now 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 website 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 Conditions ); Zappos.com, 893 F. Supp. 2d at 1064 (concluding user did not manifest assent to conditions of use that were inconspicuous, buried in the middle to bottom of every . . . webpage among many other links, and the website never directs a user to the Terms of Use ). 23 B. B Appl lication We c conclude th hat the district court erred in g granting Amazon s motion to dismiss s. First, the district c court erred d in consid dering certa ain factual l als extrinsic to the complaint. S Second, Ni icosia has plausibly stated a materia nd by the arbitration claim, a as we are n not convinc ced at this stage that t he is boun n clause. 1. Consider ration of M Materials E Extraneous to the Co omplaint As an n initial matter, we c conclude th hat the dis strict court t correctly ined that t the Order P Page and 2 2012 Cond ditions of U Use were a an determi embodi iment of th he contract t made bet tween Nico osia and A Amazon, an nd thus integral l to the com mplaint. S See Global N Network, 45 58 F.3d at 1 157. Nicos sia did not t attach a a copy of th he Order P Page to his s complain nt, but the c complaint alleges injuries s on the bas sis of the p purchases made on A Amazon, m made possi ible only v via clicking g Place yo our order on the Ord der Page. See Add. B B. Thus, th he Order P Page and the e linked 2012 Conditi ions of Use e were par rt of the co ontract inco orporated into the com mplaint by reference. See Chambers, 282 F F.3d at 153 n.4 (consid dering contract relied up pon as integral to com mplaint, w which was replete with referen nces 24 to the contracts and request[ed] judicial interpretation of their terms ). 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 Amazon s assertion that Nicosia s 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. The district court relied on the corrected version of the Order Page for items sold by third party sellers on Amazon, rather than the screenshot initially submitted by Amazon in error depicting the order screen for certain products manufactured by Amazon. 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 for items sold by third party sellers, 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. 4 25 First, contrary to the district court s 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 rel[y] heavily upon its terms and effect in drafting his complaint, in contrast to the Order Page and 2012 Conditions of Use. Chambers, 282 F.3d at 153 (quoting Int l Audiotext, 62 F.3d at 72). Account registration with Amazon in 2008 was neither mentioned nor relied upon by Nicosia, and its nexus to the contract relied upon is too attenuated to render [it] integral to the complaint. 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 Nicosia s registration should not have been considered at the motion to dismiss stage. See Faulkner, 463 F.3d at 134 ( [E]ven if a document is integral to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document. ). The Amazon declarations assert that: (1) to make a purchase on Amazon.com, a registered account had to be used; and (2) Nicosia s 26 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 ( It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document. ); Chambers, 282 F.3d at 154 ( [T]he parties disagree as to whether and how the Codes relate to or affect the contractual relationships at issue. ). 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 27 suit. It did not include an arbitration provision. While the 2008 Conditions of Use did reserve Amazon s 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. Denny s 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 28 something in between. An Amazon purchaser was not required to click an I agree 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 Place your order button after being told elsewhere on the page that By placing your order, you agree to Amazon.com s privacy notice and conditions of use, 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 hybrid 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 ( [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. ); cf. Nguyen, 763 F.3d at 1177 ( [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. ). 29 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 Review your order heading, the critical sentence appears in smaller font: By placing your order, you agree to Amazon.com s privacy notice and conditions of use. Add. B. The phrases privacy notice and conditions of use appear in blue font, indicating that they are clickable links to separate webpages. The body of the page summarizes the user s 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 try Amazon Locker. Users are also given the opportunity to change the delivery date, enter gift cards and promotional codes, and sign up for FREE Two Day Shipping with a free trial of Amazon Prime. The Amazon Prime promotion features the words FREE Two Day Shipping 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 Place your order button above a box with the heading Order Summary. 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. 30 The words Order total 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 Amazon s copyright notice. Notably, unlike typical clickwrap agreements, clicking Place your order does not specifically manifest assent to the additional terms, for the purchaser is not specifically asked whether she agrees or to say I agree. Cf. Register.com, 356 F.3d at 402 03, 429 & n.41. Nothing about the Place your order button alone suggests that additional terms apply, and the presentation of terms is not directly adjacent to the Place your order 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 informed of the consequences of his assenting click because he was shown, immediately 31 below the Sign Up button, a notice stating, By clicking Sign Up, you are indicating that you have read and agree to the Terms and Service ). The message itself By placing your order, you agree to Amazon.com s . . . conditions of use 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 ( [E]ven close proximity of the hyperlink to relevant buttons users must click on without more is insufficient to give rise to constructive notice. ). 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 ( The 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 32 Use. ). 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 customers 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 ( Given 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. ). To draw on Judge Leval s 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 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 Fteja s 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. 5 33 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 I agree icon so long as the offeree makes a decision to take the benefit with knowledge of the terms of the offer ), 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 simpler to resolve 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) ( Whether particular notice was reasonable is ordinarily a question of fact for the 34 jury. ).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 failed to plead facts that would permit the plausible inference that [he is] in danger of being wronged again. Special App. 27 (internal quotation marks omitted). Although the making of the arbitration agreement . . . [is] in issue, no trial is required at this time because neither side has petition[ed] . . . for an order directing that such arbitration proceed. 9 U.S.C. § 4; see Bensadoun, 316 F.3d at 175 ( The 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] s) brought by the party seeking to stay arbitration. ). 7 Nicosia appeals the district court s 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. 6 35 A. A Appl licable Law w Gene erally, cou urts should d consider the merits s of a requ uested prelimin nary injun nction even n where th he validity of the und derlying claims will b be determi ined in arb bitration. Am. Expre ess. Fin. Ad dvisors Inc. v. Thorley y, 147 F.3d 229, 231 (2d Cir. 1998) (citation o omitted); see also Ben ihana, Inc. v. Benihan na of Tokyo, , 7, 894 95 (2 2d Cir. 2015 5) ( Where e the partie es have ag greed to LLC, 784 F.3d 887 te a dispute e, a distric ct court has s jurisdicti ion to issue e a prelimi inary arbitrat injuncti ion to pres serve the st tatus quo p pending ar rbitration. ). [T]he expectatio on of speedy arbitration n does not t absolve th he district court of it ts responsi ibility to decide r requests fo or prelimin nary injunctions on t the merits. . Nor is th his duty affected d by the pr ro arbitrati ion policy manifested in the FA AA. Thor rley, 147 F.3 3d at 231. We genera ally review w the denia al of a prel liminary in njunction f for abuse o of discretion. Lusk v v. Vill. of Co old Spring, 475 F.3d 4 480, 484 (2d Cir. 2007 7). A distr rict buses its d discretion w when its de ecision res sts on an er rror of law w or clearly y court ab erroneo ous finding g of fact. S Shain v. Elli ison, 356 F F.3d 211, 21 14 (2d Cir. 2004). Th he existenc ce of stand ding is a qu uestion of l law that w we review d de novo. I Id. Artic cle III limit ts federal ju udicial pow wer to the e resolution n of Cases s and Co ontroversie es. U.S. C Const. art. III, § 2. To o satisfy th his jurisdic ctional 36 requirement, (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. 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 must demonstrate standing separately. 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 real or immediate threat 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 enhanced risk 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 37 increase ed risk. Se ee Baur v. V Veneman, 352 F.3d 62 25, 633 35, 640 42 (2d d Cir. 2003) ) (holding that plai intiff has st tanding to o seek injun nction to s stop defend dants from m butcher ring non am mbulatory y cows because of pla aintiff s en nhanced ris sk of mad cow disease as a consu umer of be eef); LaFleu ur v. Whitm man, 300 F.3 3d 256, 270 0 (2d Cir. 2002) (c concluding g that likeli ihood of ex xposure to o additiona al sulfur d dioxide emissio ons qualifie es as injury y in fact). B. B Appl lication We a agree with the distric ct court tha at Nicosia did not es stablish a likeliho ood of futu ure or conti inuing har rm. Even a assuming h his past pu urchases o of 1 Day Die et resulted in injury a and that he e may con ntinue to su uffer conse equences a as a result, h he has not shown tha at he is like ely to be su ubjected to o further s sales by Amazon n of produ ucts contain ning sibut tramine. A Amazon ha as ceased s selling 1 D Day Diet on its website e, and Nic cosia has fa ailed to alle ege that he e intends t to use n in the fu uture to buy any prod ducts, let a alone food or drug pr roducts Amazon general lly or weig ght loss pro oducts in p particular. See Comp pl. ¶ 15, EC CF No. 1; cf cf. Baur, 35 52 F.3d at 6 640 (conclu uding plain ntiff established a p present, imm mediate risk k of exposur re by virtu ue of alleg ging to be a a regular c consumer o of beef pro oducts). 38 Nicosia s 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 PPPA ) relating to child proof packaging requirements for controlled drugs. Compare 15 U.S.C. § 2052(a)(5)(H) (excluding drugs, devices, or cosmetics from the definition of consumer product in the CPSA), with 16 C.F.R. § 1700.14(a)(4), (10) (requiring child proof packaging for Controlled drugs and Prescription drugs 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. 39 ADDENDUM A (J. Ap U pp. 25) ADDENDUM B (J. Ap p. 91) U p ADDENDU C (J. App. 27) UM p 42
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