Amazon Moves to Dismiss Prime Whole Foods Class Action Inc filed a motion to dismiss a false advertisement case against them, arguing that the plaintiffs have failed to state a claim. The case concerns whether Amazon falsely advertised that Amazon Prime subscriptions came with free Whole Foods grocery delivery.

As has been previously covered by Law Street, prior to October 2021, members of the Amazon Prime subscription service could also receive free Whole Foods delivery for orders over $35. Whole Foods was acquired by Amazon in 2017.

Following the end of this promotion, multiple parties filed class action suits alleging Amazon falsely advertised this perk. The two cases were amalgamated in September 2022.

In their motion, Amazon argues that all charges should be dismissed. The core of their case is that the termination of this benefit is well within the Terms of Service that all Prime members assent to when they join the program. Specifically, they cite a passage that states “[f]rom time to time, Amazon may choose in its sole discretion to add or remove Prime membership benefits.” The passage goes on to state that the only way for members to not agree to said changes is to cancel their membership.

Amazon further states that they notified all Prime members one month before the end of the promotion went into effect. Now, as screenshots included in the motion show, customers are notified in every step of the order process that their purchase will include a $9.95 service fee. Amazon also questions when the lead plaintiff saw the advertisements for free delivery, as they could not find dates in the amended class action complaint.

The motion to dismiss further seeks to dismiss all other allegations and one of the proposed classes for lack of relevance to the case. Some of said allegations concern California law, and Amazon argues that per their terms of service, all disputes between customers and Amazon must be resolved in Washington, so California law does not apply. 

 The case is set in the Western District of Washington, where Amazon is headquartered. They are represented by Fenwick & West LLP. The lead plaintiff is represented by Borde Law, PLLC; Schroeter Goldmark & Bender; and the Law Offices of Ronald A. Marron.