On Tuesday, Judge Tana Lin consolidated two suits filed against Amazon over the end of free Whole Foods Market delivery with Amazon Prime subscriptions. Despite one plaintiff group’s bid to have the second case stayed or dismissed, the court found the cases sufficiently similar to warrant consolidation and appointed the firms behind the second-filed case interim lead counsel.
As previously reported, the first-filed case (the Pecznick action) accused Amazon of “unilaterally rescinding” Amazon Prime members’ free grocery delivery from Whole Foods for orders over $35. Instead, and in 2021, when customers had been paying $119 per year for their Amazon Prime subscriptions, Amazon added a $9.95 “service fee” to any delivery from Whole Foods.
The suit claimed Amazon had no right to do so and stated claims under the Washington Consumer Protection Act, for breach of contract, breach of duty of good faith and fair dealing, and unjust enrichment.
The second-filed case (the Griffith action) came just eight days later and was filed in the same district, the Western District of Washington. It alleged false advertising as well as “bait-and-switch” advertising.
The Griffith plaintiff also complained that Amazon continued to advertise “free delivery” after adding the new fee and that it used “drip-pricing” tactics to covertly add that fee to orders placed by Prime members on Amazon.com, while not applying the fee to customers picking up items in-store.
Over the Pecznick plaintiffs’ motion to stay or dismiss the Griffith action on the basis that the two were distinct, the court found them sufficiently similar to warrant consolidation.
In addition, Judge Lin appointed Borde Law PLLC, Schroeter Goldmark & Bender, and the Law Offices of Ronald A. Marron APLC, counsel representing the Griffith plaintiff, interim lead counsel.
The court explained its reasoning, finding that though both counsel groups had robust qualifications, the Griffith action counsel “has shown more care and attention in this early stage of litigation than their competitor.” The opinion also noted that the Griffith complaint was more thorough and its class definitions more comprehensive.
Second, Judge Lin added that counsel for the Pecznick plaintiffs misrepresented their credentials insofar as they said they had been class counsel when they had instead played a supporting role in class actions. “The Pecznick Plaintiffs’ attempt to rehabilitate the misrepresentation by Wilshire Law Firm, PLC, falls short of being persuasive,” the court said of counsel’s attempt to walk its characterization back.
The plaintiffs have 30 days to file a consolidated class action complaint.
Amazon is represented by Fenick & West LLP.
