Antitrust Law Daily Wrap Up, ADVERTISING—W.D. Wash.: Amazon ‘dark patterns’ class action dismissed, (Oct 10, 2025)

By Kenneth H. Ryesky, M.B.A., J.D.

Plaintiffs were not permitted to piggyback their nonexistent private right of action upon the explicit private right of action conferred in a statute they had ceased to plead.

The federal district court in Seattle, Washington has dismissed a putative class action complaint against Amazon alleging that Amazon's website design made it difficult for online customers to terminate standing orders for purchased items. The twice-amended complaint failed to comply with the heightened pleading standard for fraud, so the fraud-based counts were dismissed with prejudice. The count under the Illinois evergreen clause statute was dismissed, but leave to amend was given (Nicholas v. Amazon.com, Inc., No. 2:22-cv-01616-RSM (W.D. Wash. Oct. 6, 2025)).

Background. The growth and development of Internet commerce has been accompanied by the proliferation of so-called "dark patterns"—website design features that manipulatively if subtly influence consumers into making purchases they otherwise would not have made, and/or unknowingly disclosing personal information. Dark patterns have many variants, including but not limited to (1) concealing, disguising, or delaying the disclosure of information relevant to the Internet consumer's purchasing decision; (2) imposing a time limit or quantity requirement to pressure the consumer into making a purchase; (3) presenting false or misleading positive testimonials by purported previous consumers; and (4) requiring the disclosure of personal information not necessary for the purchase.

Illinois resident Alexandria Nicholas filed a putative class action complaint against Internet retailer Amazon.com, Inc. (Amazon), alleging that Amazon's "Subscribe & Save" (S&S) program used a dark pattern that impeded Nicholas's efforts to cancel what effectively was her standing order for dog food, thereby causing her to be billed for dog food deliveries she did not desire. The case was initially filed in an Illinois state court, but was removed to the federal court in the Western District of Washington, where Amazon is headquartered. Nicolas's First Amended Complaint alleged statutory causes of action under (1) the Washington Consumer Protection Act (WCPA); (2) the Illinois Automatic Contract Renewal Act (IACRA; and (3) the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA).

The WCPA, ICFA, and common law fraud and unjust enrichment claims were dismissed, but the IACRA claim was not. A Second Amended Complaint was filed, in which Nicholas was joined as a plaintiff by another Illinois resident (Jones) and a California resident (Carey). The Second Amended Complaint alleged statutory causes of action under the (1) WCPA; Illinois Automatic Contract Renewal Act (IACRA); and California consumer protection laws. Amazon moved to dismiss the Second Amended Complaint.

IACRA claim. The court granted dismissal of the IACRA claim. The IACRA explicitly provides that violations of it constitute an unlawful practice as that term applies in constitutes an unlawful practice under the ICFA, but unlike the First Amended Complaint, the Second Amended Complaint totally omits any ICFA claim. The court noted that ICFA broadly empowers the Illinois attorney general with a wide spectrum of enforcement powers and remedies, and adopted the logic of other courts construing Illinois statutes that explicitly denote their own breaches to constitute ICFA violations. ICFA does allow a private right of action. While these other statutes explicitly limit their enforcement to official actions by the attorney general and/or other official law enforcement agencies, IACRA contains no such limitation.

Analyzing the legislative purposes of IACRA, the court found that this statute contained neither explicit nor implied private right of action. The IACRA claim was dismissed, with leave to amend.

WCPA claim. The judge granted dismissal of the WCPA claim. Here, the plaintiffs did not allege with sufficient particularity the details of how the dark pattern of placing obstacles to cancelling their S&S orders caused harm; the heightened pleading standard was not fulfilled. Because the allegations here in the Second Amended Complaint were "largely identical" to those in the First and did not remedy those deficiencies, further amendment would likely be futile. The WCPA claim was dismissed with prejudice.

For analogous reasons, the California statutory claims were likewise dismissed with prejudice.

The Case is No. 2:22-cv-01616-RSM.

Judge: Martinez, R.

Attorneys: Chandne Jawanda (McGuire Law PC) for Alexandria Nicholas. Esther D. Galan (Fenwick & West LLP) for Amazon.com Inc.

Companies: Amazon.com Inc.

Cases: Advertising StateUnfairTradePractices WashingtonNews GCNNews