Amazon Asks Court to Toss ‘Free’ Audible Service False Advertising Class Action

Last Friday, Amazon moved to dismiss a consumer case brought by an Amazon Prime member for false advertising. The company said that reasonable consumers would not be duped into believing that Audible, a service which offers audiobook and other spoken-audio content, is “free” for Prime members based on representations made on its website.

The dispute began in May, when the Californian plaintiff accused Amazon of state law violations for deceptive advertising. Specifically, the complaint said that the plaintiff was charged a monthly subscription fee for Audible while under the belief that Amazon offers the service for free to Prime subscribers. The pleading also claimed that Amazon makes it difficult for customers to cancel Audible subscriptions, and limits refunds when they do.

Amazon removed the case to federal court in July and last week filed a motion to dismiss the complaint along with a request for judicial notice of documents it wants the court to consider in support thereof. Substantively, the company says its Audible-related advertisements are neither misleading nor false.

Amazon clarifies that its advertising reads “Free Titles at Audible: Prime members are invited to start an Audible Premium Plus trial with 2 credits that can be used on any titles.” As such, it informs Prime members of the free credits as part of a trial, but does not say that Audible membership is included as a gratuitous Prime benefit, the motion argues.

Amazon points out that the plaintiff never claimed to have seen or relied on “Free Titles” on Audible when subscribing to Prime. Further, the motion argues that the plaintiff never claimed that she had any difficulty canceling an Audible subscription, or that she sought or was denied a refund.  

Ultimately, and though the pleading quotes online complaints by others, “it does not allege how—or even whether—Plaintiff was deceived or injured.” As such, Amazon concludes that the complaint fails to meet the standard pleading requirements of the Federal Rules of Civil Procedure as well as the heightened ones that apply to the plaintiff’s fraud-based claims.

The case is before Judge Jeffrey S. White in Oakland, Calif.

The plaintiff is represented by Reese LLP and Amazon by Fenwick & West LLP.