Amazon.com Inc. has filed a second motion to dismiss a Western District of Washington case that alleges its third-party seller policies are anticompetitive insofar as they create an artificial price floor for goods sold simultaneously on its platform and other online outlets. Monday’s motion, primarily targeting the plaintiffs’ standing, comes as Amazon’s motion for reconsideration of the court’s March dismissal order pends.
As explained in previous coverage, the 2020 suit alleges that Amazon’s policies prevent price competition for goods sold across platforms like eBay or Walmart.com by restraining sellers from offering lower prices for their goods on sites other than Amazon. Reportedly, Amazon enforces the policy by monitoring prices and threatening to punish sellers who fail to conform.
The complaint states antitrust causes of action on behalf of a proposed class of anyone who purchased one or more of an estimated 340 million supracompetitively priced consumer products offered for sale by an Amazon third-party seller and purchased through a retail e-commerce channel other than Amazon Marketplace.
In the court’s March ruling on Amazon’s motion to dismiss the plaintiff’s first amended complaint, it found in relevant part that the plaintiffs have antitrust standing to pursue their claims as direct purchasers in conjunction with the theory that third-party sellers are co-conspirators, even if unwittingly so.
Amazon moved for reconsideration of the decision, arguing that it suffered multiple flaws. The plaintiffs filed a second amended complaint, and now, Amazon seeks not to “reargue points the Court decided,” but to dismiss on the basis that the plaintiffs lack standing for their antitrust claims on previously undecided bases.
Amazon first faults the complaint for resting on purchases from online sellers not alleged to be co-conspirators like Target, Costco, REI and CVS. This contention allegedly violates the “bright-line rule” that only direct purchasers of an alleged antitrust violator have antitrust standing.
The defendant argues that their consequent umbrella theory, that Amazon’s policies supposedly created a price umbrella that caused consumers to pay higher prices outside Amazon’s store, runs contrary to Supreme Court precedent because there is no “direct causal connection” between the policies that govern sales in Amazon’s store and the independent pricing decisions of other online sellers.
Amazon also asserts the second amended complaint warrants dismissal because “the plain language of Amazon’s Marketplace Fair Pricing Policy, which the Court did not previously consider, contradicts the core allegations that form the basis for Plaintiffs’ claims.”
The plaintiffs are represented by Hagens Berman Sobol Shapiro LLP, Quinn Emanuel Urquhart & Sullivan LLP, Keller Lenkner LLC, and Keller Rohrback L.L.P.
Amazon is represented by Davis Wright Tremaine LLP and Paul, Weiss, Rifkind, Wharton & Garrison LLP.