Nicosia v. Amazon.com, Inc., No. 15-423 (2d Cir. 2016)Annotate this Case
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.