Andrez Marquez v. Amazon.com, Inc.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 1 of 25

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14317

____________________

ANDREZ MARQUEZ,

On behalf of himself and all others similarly situated,

including but not limited to, Clarissa Morejon,

Morgan Howard, Sophia Feliciano, James Bromley,

and Jeff Barr,

CLARISSA MOREJON,

MORGAN HOWARD,

SOPHIA FELICIANO,

JAMES BROMLEY, et al.,

Plaintiffs-Appellants,

versus

AMAZON.COM, INC.,

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 2 of 25

2 Opinion of the Court 21-14317

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:21-cv-80392-DMM

____________________

Before BRANCH and LUCK, Circuit Judges, and SANDS,∗ District

Judge.

BRANCH, Circuit Judge:

At the start of the COVID-19 pandemic, Amazon.com, Inc.

(“Amazon”) stopped providing “Rapid Delivery” 1 to Amazon

Prime (“Prime”) subscribers. Because Prime subscribers were not

notified of the suspension and continued to pay full price for their

memberships, Andrez Marquez and other plaintiffs brought a

putative class action against Amazon alleging breach of contract,

breach of the covenant of good faith and fair dealing, violation of

the Washington Consumer Protection Act (“WCPA”), and unjust

enrichment. The district court granted Amazon’s motion to

∗Honorable W. Louis Sands, United States District Judge for the Middle

District of Georgia, sitting by designation.

1

“Rapid Delivery” is not a contract term. The parties and the district court,

however, used the term to describe the enhanced shipping options available

to Prime subscribers. We follow suit.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 3 of 25

21-14317 Opinion of the Court 3

dismiss the First Amended Complaint for failure to state a claim

with prejudice because it found that Amazon did not have a duty

to provide unqualified Rapid Delivery to Prime subscribers. After

careful review, and with the benefit of oral argument, we affirm.

I. Background

A. Facts and Contract Terms

Prime is a fee-based subscription service. Prime subscribers

receive several benefits not available to other Amazon customers,

including Rapid Delivery, which is two-hour, same-day, one-day,

or two-day shipping at no additional cost for certain Prime-eligible

items purchased from Amazon’s online marketplace. From the

start of the COVID-19 pandemic in March 2020 to at least May

2020, Amazon suspended Rapid Delivery without notifying Prime

members. Plaintiffs alleged that, rather than providing the full

benefit of Prime membership to its subscribers, Amazon instead

“focused on profits from consumer grocery and pharmacy

spending to compete with major pharmacy and grocery chains as

well as keep[] up with significantly increased demand.” 2

As Prime subscribers, each plaintiff agreed to identical

contracts with Amazon. The contracts included the Amazon

Prime Terms and Conditions (“Terms & Conditions”) which, in

2

Amazon did not stop collecting subscription fees from existing Prime

subscribers during its suspension of Rapid Delivery. Rather, during this time,

Amazon sold new Prime subscriptions, listed goods as Prime-eligible, and

represented that it would provide Rapid Delivery.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 4 of 25

4 Opinion of the Court 21-14317

turn, incorporated provisions from several linked documents.

Specifically, in the first paragraph, the Terms & Conditions stated:

Please note that your use of the Amazon.com website

and Prime membership are also governed by the

agreements listed and linked to below, as well as

other applicable terms, conditions, limitations and

requirements on the Amazon.com website, all of

which . . . are incorporated into these Terms. If you sign

up for a Prime membership, you accept these terms,

conditions, limitations and requirements.

There were multiple hyperlinks immediately below this section of

text. In pertinent part, the first hyperlink incorporated the

“Conditions of Use” and the second incorporated the

“Amazon.com Privacy Notice.”

Within the Terms & Conditions was a bolded section

entitled “Shipping Benefits and Eligible Purchases.” This “Shipping

Benefits and Eligible Purchases” section included a hyperlink

entitled “Prime shipping benefits” that linked to a webpage entitled

“Amazon Prime Shipping Benefits – Eligible Items & Addresses.”

The “Amazon Prime Shipping Benefits – Eligible Items &

Addresses” webpage also linked to another webpage entitled

“Amazon Prime Shipping Benefits.” The “Amazon Prime Shipping

Benefits” webpage detailed shipping speeds, catalogued “eligible

items,” and provided the prices that Prime members would have

to pay for those services.

With the structure of the contract in mind, we now turn to

its operative text.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 5 of 25

21-14317 Opinion of the Court 5

First, the Terms & Conditions provided that: “Prime

shipping benefits depend[ed] upon inventory availability, order

deadlines, and in some cases the shipping address.” Second, the

Terms & Conditions provided: “[Amazon] may exclude products

with special shipping characteristics at [its] discretion.” Third, the

Terms & Conditions provided:

From time to time, Amazon may choose in its sole

discretion to add or remove Prime membership

benefits . . . [Amazon] may in [its] discretion

change . . . any aspect of Prime membership, without

notice . . . YOUR CONTINUED MEMBERSHIP

AFTER WE CHANGE THESE TERMS

CONSTITUTES YOUR ACCEPTANCE OF THE

CHANGES.

Additionally, the Conditions of Use provided (in all caps):

AMAZON SERVICES AND ALL INFORMATION,

CONTENT, MATERIALS, PRODUCTS

(INCLUDING SOFTWARE) AND OTHER

SERVICES INCLUDED OR OTHERWISE MADE

AVAILABLE TO YOU THROUGH THE AMAZON

SERVICES ARE PROVIDED BY AMAZON ON AN

“AS IS” AND “AS AVAILABLE” BASIS . . . .

The Conditions of Use also contained a choice-of-law clause

selecting Washington law. 3

3

The choice-of-law provision provided the following—“By using any Amazon

Service, you agree that . . . the laws of the state of Washington, without regard

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 6 of 25

6 Opinion of the Court 21-14317

B. Procedural History

Plaintiffs were Prime subscribers between March 2020 and

May 2020 who—with one exception4—periodically placed orders

for Rapid Delivery. Plaintiffs filed this case in Florida state court.

Amazon removed to the United States District Court for the

Southern District of Florida based on diversity jurisdiction.

Plaintiffs then filed their First Amended Complaint, which

asserted claims for breach of contract (Claim I), breach of the

covenant of good faith and fair dealing (Claim II), violation of the

WCPA (Claim III), and unjust enrichment (Claim IV).

Importantly, plaintiffs did not plead the obvious: Amazon’s

suspension of Rapid Delivery was in response to the COVID-19

pandemic.5

to principles of conflict of laws, will govern these Conditions of Use and any

dispute of any sort that might arise between you and Amazon.”

4

For nine of the ten named plaintiffs, the First Amended Complaint alleges

that “[f]rom time to time [he or she] placed one or more orders on Amazon

Prime for Rapid Delivery.” For the other named plaintiff, however, the only

allegation is that he “utilized Rapid Delivery” without any allegation that he

actually placed orders for Rapid Delivery.

5

Presumably, plaintiffs omitted reference to COVID-19 in their complaint to

try to prevent the district court from considering COVID-19’s effect when

assessing the plausibility of their claims. See generally Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). This ruse is creative lawyering, but it does not work.

While “[a]nalysis of a 12(b)(6) motion [to dismiss] is limited primarily to the

face of the complaint and attachments thereto,” Wilchombe v. TeeVee Toons,

Inc., 555 F.3d 949, 959 (11th Cir. 2009) (quoting Brooks v. Blue Cross & Blue

Shield of Fla., Inc., 116 F.3d 1364, 1368 (11th Cir. 1997)), the Supreme Court has

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 7 of 25

21-14317 Opinion of the Court 7

Amazon moved to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), and the district court dismissed all claims with

prejudice for failure to state a claim. The district court held that,

on the breach of contract claim, “Plaintiffs [did] not ple[a]d facts

that establish[ed] that [Amazon] owed a duty to provide [Prime]

subscribers with unqualified rapid delivery shipping.” That is,

without a promise to provide unqualified Rapid Delivery, Amazon

necessarily did not breach its contract by suspending that service.

Relatedly, the district court found that the contract was neither

procedurally nor substantively unconscionable, and it specifically

“note[d] the irony” of plaintiffs’ argument that prioritizing the

shipment of essential goods during the COVID-19 pandemic was

unconscionable because Amazon “exercised responsible business

judgment during an unprecedented global public health crisis.” 6

Through reasoning similar to its breach of contract analysis, the

instructed courts that the plausibility determination is “context-specific” and

“requires the reviewing court to draw on its judicial experience and common

sense,” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (emphasis added); see also Roe

v. Michelin N. Am., Inc., 613 F.3d 1058, 1062 n.5 (11th Cir. 2010). The effect of

COVID-19 in early 2020 was properly considered as part of the district court’s

“judicial experience and common sense.” Iqbal, 556 U.S. at 679. As such,

plaintiffs’ argument that the district court—and our court—cannot consider

the effect of COVID-19 because it is not mentioned in their complaint

necessarily fails.

6

The district court advanced similar reasoning when it considered the “public

interest impact” element of the WCPA claim: “In addition, [d]efendant did not

violate the public interest—indeed it made a good faith effort to serve the

public interest—when it prioritized the shipment of essential goods during the

onset of the pandemic.”

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 8 of 25

8 Opinion of the Court 21-14317

district court found that Claim II (breach of good faith and fair

dealing) and Claim III (violation of the WCPA) also failed. Finally,

the district court held that Claim IV (unjust enrichment) failed

because there was a contract between the parties; and, under

Washington law, unjust enrichment applies only when there is no

contractual relationship.

Plaintiffs timely appealed.

II. Standard of Review

“We review de novo the district court’s grant of a motion to

dismiss under Rule 12(b)(6) for failure to state a claim, accepting

the allegations in the complaint as true and construing them in the

light most favorable to the plaintiff.” Am. Dental Ass’n v. Cigna

Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quoting Mills v. Foremost

Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008)). But “[o]ur duty to

accept the facts in the complaint as true does not require us to

ignore specific factual details of the pleading in favor of general or

conclusory allegations,” because “when the exhibits contradict the

general and conclusory allegations of the pleading, the exhibits

govern.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205–06 (11th

Cir. 2007).

After Twombly and Iqbal, the standard to survive a 12(b)(6)

motion to dismiss for failure to state a claim is “plausibility.” See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007); Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). That is, “to survive a motion to dismiss,

a complaint must now contain sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face.” Am.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 9 of 25

21-14317 Opinion of the Court 9

Dental, 605 F.3d at 1289 (quotations omitted). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. This standard

requires plaintiffs to provide more than “naked assertions devoid

of further factual enhancement,” mere “labels and conclusions,” or

“a formulaic recitation of the elements of a cause of action.” Id.

(quotations omitted & alterations adopted). Ultimately, “[a]

complaint may be dismissed for failure to state a claim when,

ignoring any mere conclusory statements, the remaining

allegations do not plausibly suggest that the defendant is liable.”

Harper v. Pro. Prob. Servs. Inc., 976 F.3d 1236, 1240 n.4 (11th Cir.

2020) (quotations omitted).

“[W]e may affirm [the district court’s] judgment on any

ground that finds support in the record.” Lucas v. W.W. Grainger,

Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) (quotations omitted).

III. Discussion

To begin, we assume that Amazon’s contract with Prime

subscribers included a promise to provide Rapid Delivery. 7

7

We note that the district court did not employ this assumption, and the

assumption is by no means a given. On the one hand, the Amazon Prime

Shipping Benefits page stated: “Your Amazon Prime membership includes a

variety of shipping benefits, including several shipping options if you need to

expedite your delivery.” And this same page included a table showing the

expedited shipping speeds available to Prime members and the associated

costs (or lack thereof) for those services. These facts, along with plaintiffs’

allegations, suggest that Rapid Delivery was contractually promised. On the

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 10 of 25

10 Opinion of the Court 21-14317

Proceeding from this assumption, we find that plaintiffs have not

stated a claim for breach of contract because Amazon had the right

to limit Rapid Delivery. We also hold that Amazon’s significant

discretionary authority over Rapid Delivery does not render the

contract unconscionable. Then, we conclude that plaintiffs have

not sufficiently alleged that Amazon breached its duty of good faith

or violated the WCPA. Finally, because plaintiffs pleaded a

contractual relationship in their unjust enrichment count, we hold

that their unjust enrichment claim fails. In sum, we affirm the

district court’s judgment on each claim, although we reach our

conclusions for different reasons.

A. Breach of Contract and Unconscionability

1. Breach of Contract

Plaintiffs allege that Amazon breached its contract with

plaintiffs by suspending Rapid Delivery from at least March 2020 to

at least May 2020. The district court found that Amazon had no

duty to provide unqualified Rapid Delivery and, as such, it did not

breach its contract by suspending that service.

other hand, however, many facts—such as the contractual terms that gave

Amazon “sole discretion” over Prime membership benefits and indicated that

Amazon provided its services on an “AS IS” and “AS AVAILABLE” basis—

indicate that Rapid Delivery was not contractually promised. In the end,

because we conclude that even if Rapid Delivery was contractually promised,

Amazon still did not breach its contract, breach the covenant of good faith, or

violate the WCPA, we assume that Rapid Delivery was promised.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 11 of 25

21-14317 Opinion of the Court 11

We take a different path. We assume that Amazon had a

duty to provide Rapid Delivery, but still conclude that Amazon did

not breach its contract because it had contractual authority to

suspend Rapid Delivery.

Under Washington law, 8 “[a] breach of contract is actionable

only if the contract imposes a duty, the duty is breached, and the

breach proximately causes damage to the claimant.” Nw. Indep.

Forest Mfrs. v. Dep’t of Lab. & Indus., 899 P.2d 6, 9 (Wash. Ct. App.

1995); see also Baldwin v. Silver, 269 P.3d 284, 289 (Wash. Ct. App.

2011) (“Breach of contract . . . claims depend on proof of four

common elements: duty, breach, causation, and damages.”). The

contract language is given its “ordinary, usual, and popular

meaning,” Myers v. State, 218 P.3d 241, 243 (Wash. Ct. App. 2009),

and courts must “give[] effect to all the contract’s provisions,”

Nishikawa v. U.S. Eagle High, LLC, 158 P.3d 1265, 1268 (Wash. Ct.

App. 2007). And, of course, if an action is permitted by the

contract, the performance of that action is not a breach. See Myers,

218 P.3d at 244 (upholding the trial court’s dismissal of a breach of

contract claim in a wrongful termination dispute when the

“contract grant[ed] [defendant] broad authority to terminate the

contract”).

The contract repeatedly qualified the rights of Prime

subscribers and gave Amazon the authority to modify Prime

benefits—including Rapid Delivery. In particular, we focus on two

8

The parties agree that we must apply Washington law in light of the choice-

of-law clause in their contract.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 12 of 25

12 Opinion of the Court 21-14317

terms that demonstrate Amazon did not breach its contract with

plaintiffs.

First, the Terms & Conditions provided that “Amazon may

choose . . . to add or remove Prime membership benefits.”

Second, the Conditions of Use reiterated that “AMAZON

SERVICES . . . ARE PROVIDED BY AMAZON ON AN ‘AS IS’

AND ‘AS AVAILABLE’ BASIS.” 9 Standing together, these terms

decide this claim. It is undisputable that the contract provides

Amazon with the right to suspend Rapid Delivery. We do not

belabor the point because the ultimate analysis is rather simple:

Amazon had the contractual right to suspend Rapid Delivery, so it

did not breach its contract with plaintiffs by suspending Rapid

Delivery. 10 Id.

9

Amazon also points to the term providing that “shipping benefits depend upon

inventory availability, order deadlines, and in some cases the shipping address”

to show that plaintiffs did not have an unqualified right to Rapid Delivery.

Plaintiffs respond that this provision is inapposite because Amazon did not

suspend Rapid Delivery for the above-listed reasons. We need not address this

specific dispute because we conclude that other contract terms clearly provide

Amazon the right to suspend Rapid Delivery and, therefore, it did not breach

its contract with plaintiffs.

10

It bears repeating that plaintiffs were free to cancel their Prime memberships

at any time. If they chose not to cancel, however, their “continued

membership . . . constitute[d] . . . acceptance of the[] changes.” This

provision reinforces our conclusion that there was no breach. That is, once

plaintiffs accepted the new terms, they lost their claim that Amazon breached

the original terms.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 13 of 25

21-14317 Opinion of the Court 13

Plaintiffs argue that we cannot read the contractual

discretion so broadly because we must give “reasonable, fair, just,

and effective meaning to all manifestations of intention” when

interpreting a contract. See Spokane Sch. Dist. No. 81 v. Spokane Educ.

Ass’n, 331 P.3d 60, 67 (Wash. Ct. App. 2014). We conclude that this

statement of law actually cuts against plaintiffs’ argument. That is,

the contract’s express intention is to give Amazon broad authority

over Rapid Delivery, and it is “fair” and “reasonable” to read the

contract that way. Id.

Plaintiffs also argue that if Amazon had such broad

discretion over Rapid Delivery—which, in their estimation, is the

“core” benefit of Prime membership—such authority would

render the contract “illusory.” “In Washington, a contract is

illusory only if it lacks all consideration and mutuality of obligation,

e.g., the promisor has no obligations with regard to any parts of the

contract.” Ekin v. Amazon Servs., LLC, 84 F. Supp. 3d 1172, 1176

(W.D. Wash. 2014). While this opinion has focused primarily on

Rapid Delivery, there are other Prime benefits and services (such

as streaming access for movies, television shows, and music) that

were not suspended. Thus, the contract was not “completely

illusory.” Id.

2. Unconscionability

Plaintiffs also contend that the contract is both procedurally

and substantively unconscionable and that the district court erred

in ruling otherwise. The district court found that the contract was

not procedurally unconscionable because “[p]laintiffs have not

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 14 of 25

14 Opinion of the Court 21-14317

offered any facts that suggest they lacked a reasonable choice in

deciding whether or not to subscribe to [Prime],” and was not

substantively unconscionable because Amazon’s right to modify

the contract—which plaintiffs could have terminated at any time—

did not meet the high threshold for substantive unconscionability.

Ignoring the inherent tension in asserting a claim for breach of

contract (i.e., there is an enforceable contract that has been

breached) as well as a claim for unconscionability (i.e., this is an

unenforceable contract), plaintiffs’ argument fails.

“In Washington, either substantive or procedural

unconscionability is sufficient to void a contract.” Gandee v. LDL

Freedom Enters., Inc., 293 P.3d 1197, 1199 (Wash. 2013). “The

burden of proving that a contract or contract clause is

unconscionable lies upon the party attacking it.” Tjart v. Smith

Barney, Inc., 28 P.3d 823, 830 (Wash. Ct. App. 2001).

Plaintiffs allege that the contract is procedurally

unconscionable because “it was part of an adhesion contract, was

buried in a maze of fine print, and plaintiffs lacked a reasonable

opportunity to understand the provision[s].” Procedural

unconscionability is the lack of a meaningful choice, “considering

all the circumstances surrounding the transaction including (1) the

manner in which the contract was entered, (2) whether each party

had a reasonable opportunity to understand the terms of the

contract, and (3) whether the important terms [were] hidden in a

maze of fine print.” Id. (alterations adopted & quotations omitted).

Under the first element, to determine whether a contract is an

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 15 of 25

21-14317 Opinion of the Court 15

adhesion contract, we consider: “(1) whether the contract is a

standard form printed contract, (2) whether it was prepared by one

party and submitted to the other on a take it or leave it basis, and

(3) whether there was no true equality of bargaining power

between the parties.” Zuver v. Airtouch Commc’ns., Inc., 103 P.3d

753, 760 (Wash. 2004) (quoting Yakima Cnty. (W. Valley) Fire Prot.

Dist. No. 12 v. City of Yakima, 858 P.2d 245, 248 (Wash. 1993))

(quotations omitted). Even if a contract is an adhesion contract,

that fact alone is not determinative. Romney v. Franciscan Med. Grp.,

349 P.3d 32, 37 (Wash. Ct. App. 2015) (“The fact that a contract is

an adhesion contract is relevant but not determinative.”).

Similarly, “the fact that unequal bargaining power exists will not,

standing alone, justify a finding of procedural unconscionability.”

Zuver, 103 P.3d at 761.

Plaintiffs are correct that the contract was an adhesion

contract. See id. The contract was a “standard form printed

contract,” prepared by Amazon, and plaintiffs have considerably

less bargaining power than Amazon. See id. This finding, however,

helps plaintiffs with only the first of the three elements of

procedural unconscionability. See Romney, 349 P.3d at 37.

Plaintiffs cannot satisfy their burden on the remaining

elements of procedural unconscionability. On the second element

(reasonable opportunity to understand the terms of the contract),

plaintiffs offer no explanation as to how their opportunity to

understand the contract was inhibited. As addressed below, the

terms were clearly laid out and there is no allegation (or evidence)

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 16 of 25

16 Opinion of the Court 21-14317

that plaintiffs were under time pressure that affected their

opportunity to read the contract. Plaintiffs suggest that they

“lacked a reasonable opportunity . . . because [the provision

allowing Amazon to suspend Rapid Delivery] directly conflicts

with the actual core benefit offered: Rapid Delivery,” but this

argument misses the mark. For one, this argument does not

address plaintiffs’ opportunity to understand the contract in any

way. And, in any event, Amazon Prime membership included

other “core” benefits such as streaming access for movies,

television shows, and music which were unaffected by the

suspension of Rapid Delivery.

On the third element (hidden terms), despite plaintiffs’ claim

that the terms were buried in a maze of fine print, the evidence

again favors Amazon. While there were several hyperlinks

between different documents, the pertinent provisions were often

in prominent places under clearly labeled subheadings, written in

clear language, and/or emphasized in all caps.

In sum, while plaintiffs have plausibly alleged that the

contract was an adhesion contract, they have not carried their

burden of alleging the remaining elements of procedural

unconscionability. See Tjart, 28 P.3d at 830.

Plaintiffs also allege that the contract is “substantively

unconscionable because it purported to confer on Amazon

unfettered discretion to unilaterally modify the contract.”

“Substantive unconscionability involves those cases where a clause

or term in the contract is alleged to be one-sided or overly harsh[.]”

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 17 of 25

21-14317 Opinion of the Court 17

Adler v. Fred Lind Manor, 103 P.3d 773, 781 (Wash. 2004). “[T]erms

sometimes used to define substantive unconscionability” include

“[s]hocking to the conscience, monstrously harsh, and exceedingly

calloused.” Id. (quotations omitted). “[U]nilateral change-in-terms

provision[s]” do not render a contract substantively

unconscionable unless the contract is completely illusory, which

occurs only when the contract “lacks all consideration and

mutuality of obligation, e.g., the promisor has no obligations with

regard to any parts of the contract.” Ekin, 84 F. Supp. 3d at 1176;

see also Associated Petroleum Prods., Inc. v. Nw. Cascade, Inc., 203 P.3d

1077, 1080 (Wash. Ct. App. 2009) (“A party to a terminable at will

contract can unilaterally modify the contract because, in doing so,

the party is simply terminating the old contract and offering a new

one.”).

Plaintiffs cannot satisfy this demanding standard. Under the

contract, Amazon had authority to suspend certain Prime benefits,

but the terms were far from “monstrously harsh” or “shock[ing]

[to] the conscience.” Adler, 103 P.3d at 781. Instead, the terms

provided the benefits of Prime, described Amazon’s authority to

alter those benefits, and gave plaintiffs the option to cancel their

Prime membership at any time.

In the end, Amazon’s contractual discretion was substantial,

but the contract was not procedurally or substantively

unconscionable under Washington law.11 See id.

Because we find that the provisions allowing Amazon to suspend Rapid

11

Delivery are not unconscionable, we do not address plaintiffs’ argument that

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 18 of 25

18 Opinion of the Court 21-14317

B. Breach of Duty of Good Faith and Fair Dealing

Plaintiffs argue that because the contract gave Amazon

significant discretionary authority, it was required—under

Washington law—to operate according to the duty of good faith

and fair dealing. The district court held that Amazon had no duty

to provide Rapid Delivery and, therefore, plaintiffs did not show

that “there [was] anything that [Amazon] . . . failed to perform in

good faith.” Again, we do not follow the district court’s approach

to duty. Nonetheless, after analyzing the contract’s terms and

comparing them with Washington law, we find that plaintiffs have

not sufficiently alleged that Amazon violated the duty of good faith

and fair dealing.

“Under Washington law, there is in every contract an

implied duty of good faith and fair dealing that obligates the parties

to cooperate with each other so that each may obtain the full

benefit of performance.” Rekhter v. State, Dep’t of Soc. & Health

Servs., 323 P.3d 1036, 1041 (Wash. 2014) (quotations, alterations,

and citations omitted). The covenant “requires only that the

parties perform in good faith the obligations imposed by their

agreement,” and does not “inject substantive terms into the parties’

contract.” Badgett v. Sec. State Bank, 807 P.2d 356, 360 (Wash. 1991)

(quotations omitted); Myers, 218 P.3d at 244 (“[C]ovenants of good

faith . . . do not trump express terms or unambiguous rights in a

contract.”). Critically, however, “if a contract gives a party

the unconscionable portions should be severed from the rest of the still-

operative contract.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 19 of 25

21-14317 Opinion of the Court 19

unconditional authority to determine a term, there is no duty of

good faith and fair dealing.” Rekhter, 323 P.3d at 1044.

Plaintiffs are correct on one point: Amazon had substantial

discretion under the contract. Under Rekhter, however,

unconditional authority to determine a term effectively cancels the

duty of good faith and fair dealing. Id. Per the terms of the

contract, Amazon “may choose in its sole discretion to add or

remove Prime membership benefits,” which is the quintessential

case of a “contract [that] gives a party unconditional authority.”

Accordingly, we must find that “there is no duty of good faith and

fair dealing” under Washington law. Id. Further, the contract

specified that Prime services were provided on an “AS IS” and “AS

AVAILABLE” basis and it notified plaintiffs that if they disagreed

with any updated terms they were required to “cancel [their]

memberships.” Amazon did not breach the duty of good faith and

fair dealing because it was non-existent in this instance.12

C. Violation of WCPA

We turn now to plaintiffs’ argument that Amazon violated

a Washington state statute—the WCPA—by engaging in deceptive

practices. Wash. Rev. Code Ann. §§ 19.86.010–19.86.920. The

12

Plaintiffs argue that the district court erred in analyzing the duty of good

faith because it rooted its analysis in the fact that “no contract provision

imposed on Amazon a duty to provide Rapid Delivery.” This argument does

not affect our analysis because (1) we have analyzed duty differently than the

district court and (2) it would not change Washington law which gets rid of

the duty of good faith in this circumstance.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 20 of 25

20 Opinion of the Court 21-14317

district court held that plaintiffs did not allege facts showing that

Amazon engaged in an unfair or deceptive practice.

The WCPA allows out-of-state plaintiffs to sue Washington

corporations for “deceptive acts that directly or indirectly affect the

people of Washington.” Thornell v. Seattle Serv. Bureau, Inc., 363

P.3d 587, 592 (Wash. 2015). Plaintiffs must establish five elements

to prevail in a WCPA suit: “(1) [an] unfair or deceptive act or

practice; (2) occurring in trade or commerce; [that has a] (3) public

interest impact; [that results in] (4) [an] injury to plaintiff in his or

her business or property; [and] (5) causation.” Hangman Ridge

Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash.

1986); see also Wash. Rev. Code Ann. §§ 19.86.010–19.86.920. Our

analysis leads inescapably to the conclusion that the district court

correctly dismissed this claim.

1. Unfair or Deceptive Act or Practice

Under this element, the touchstone is whether a

representation was “likely to mislead a reasonable consumer.”

Panag v. Farmers Ins. Co. of Wash., 204 P.3d 885, 895 (Wash. 2009)

(quotations omitted). “A plaintiff need not show that the act in

question was intended to deceive, but that the alleged act had the

capacity to deceive a substantial portion of the public.” Hangman

Ridge, 719 P.2d at 535. “The capacity . . . to deceive is determined

with reference to the least sophisticated consumers among us.”13

13

Amazon contends that the “least sophisticated” standard does not apply to

the WCPA. This argument, however, rests on an unpublished opinion that is

not entirely persuasive. See Kelly v. Cavalry Portfolio Servs. LLC, No. 47941-9-II,

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 21 of 25

21-14317 Opinion of the Court 21

Keithly v. Intelius Inc., 764 F. Supp. 2d 1257, 1268 (W.D. Wash. 2011)

(noting as well that “[online] consumers do not read every word

on a webpage and [the Federal Trade Commission] advises

advertisers that they must draw attention to important disclosures

to ensure that they are seen”). Even still, a representation that does

not “hid[e] the ball in any way,” HB Dev., LLC v. W. Pac. Mut. Ins.,

86 F. Supp. 3d 1164, 1187 (E.D. Wash. 2015), is not unfair or

deceptive—despite the impact that those terms may have on the

consumer—because “[p]erfection is not the standard,” Keithly, 764

F. Supp. 2d at 1269.

Plaintiffs unconvincingly argue there are three ways that

Amazon engaged in an “unfair or deceptive” act or practice as

alleged in the First Amended Complaint: (1) by breaching its

contract and the duty of good faith, (2) by representing that it

would provide Rapid Delivery, and (3) by not representing that it

could suspend Rapid Delivery without notification or refund in

order to “compete against other companies, including grocery and

2016 WL 7468227, at *4 (Wash. Ct. App. Dec. 28, 2016). Other Washington

cases suggest that the “least sophisticated” standard is properly applied to

claims under the WCPA. See, e.g., Panag, 204 P.3d at 895 (including as part of

its overview of the proper standards in a WCPA case that the court “look not

to the most sophisticated readers but rather to the least” (quoting Jeter v. Credit

Bureau, Inc., 760 F.2d 1168, 1175 (11th Cir. 1985) (emphasis added)). Because

plaintiffs cannot even satisfy the “least sophisticated” standard, we assume

without deciding that this lower threshold is the proper standard under

Washington law.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 22 of 25

22 Opinion of the Court 21-14317

pharmacy companies” and “promote sales with higher profit

margins.”

The first argument has already been addressed. Amazon did

not breach its contract or the duty of good faith. Thus, we turn to

plaintiffs’ second and third arguments. In essence, both arguments

are that “the least sophisticated consumer” was “likely to [be]

misl[ed]” by the contract’s terms.

While the contract contained a large amount of text and in

some cases required reference to other terms (via hyperlink), the

critical provisions would not deceive a “substantial portion of the

public” even if the “least sophisticated” consumer is the

benchmark. Hangman Ridge, 719 P.2d at 535; Panag, 204 P.3d at 895.

Amazon’s discretionary authority to suspend Rapid Delivery was

made exceedingly clear from the outset. The provisions that

outline this discretion were easy to understand. Two of the most

important provisions—concerning Amazon’s power to alter

subscribers’ memberships and emphasizing that its services were

provided on an “AS IS” and “AS AVAILABLE” basis—were

emphasized in all caps. This set of facts in no way resembles

“hid[ing] the ball” because the provisions were easily accessible and

straightforward; as such, they would not deceive a “substantial

portion” of the public. HB Dev., 86 F. Supp. 3d at 1185, 1187

(holding that “[t]here [was] no evidence that [defendants] hid the

ball” because the pertinent language was presented clearly and

defendants did not neglect to disclose critical information). For

these reasons, Amazon’s representations were not “unfair” or

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 23 of 25

21-14317 Opinion of the Court 23

“deceptive.” 14 See, e.g., Keithly, 764 F. Supp. 2d at 1269 (“Perfection

is not the standard . . . .”).

Simply put, plaintiffs have not sufficiently alleged that

Amazon engaged in “unfair or deceptive” business practices under

Washington law. This conclusion alone defeats plaintiffs’ WCPA

claim because they cannot satisfy each of the five required

elements. Even so, we proceed to another element to emphasize

that plaintiffs’ claim is doubly deficient.

2. Public Interest Impact

To succeed on a WCPA claim, plaintiffs must also

demonstrate a “public interest impact.” Hangman Ridge, 719 P.2d

at 533, 537 (emphasizing the WCPA’s focus of “protect[ing] the

general public”). This element may be satisfied in multiple ways,

id. at 538, but the Washington legislature has instructed that “this

act shall not be construed to prohibit acts or practices which are

reasonable in relation to the development and preservation of

business or which are not injurious to the public interest,” Wash.

Rev. Code Ann. § 19.86.920. Plaintiffs argue that Amazon’s

suspension of Rapid Delivery was a breach that affected “millions”

of people such that it affected the public interest. Plaintiffs’

argument is paradoxical. Essentially, plaintiffs contend that by

14

To the extent that plaintiffs’ third argument (that Amazon did not represent

that it could suspend Rapid Delivery to concentrate on groceries and

pharmaceuticals) includes their contention that the district court erred by

considering the realities of COVID-19, we have already found that argument

meritless.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 24 of 25

24 Opinion of the Court 21-14317

suspending Rapid Delivery to prioritize essential goods at the

outset of the COVID-19 pandemic, Amazon harmed the public

interest. As we have explained, we are allowed to use our

“experience and common sense” to acknowledge the COVID-19

pandemic even though it was not included as a factual allegation in

the First Amended Complaint. See Iqbal, 556 U.S. at 679. We need

only common sense to dispense with this argument because

Amazon’s prioritization of essential goods during the COVID-19

pandemic obviously did not harm the public interest. 15

For the reasons above, we hold that the district court was

correct to dismiss plaintiffs’ WCPA claim.

D. Unjust Enrichment

Plaintiffs’ claim that Amazon was unjustly enriched because

it received plaintiffs’ subscription fees without conferring the

benefit of Rapid Delivery is a non-starter. Washington law is clear

that unjust enrichment is appropriate only absent a contract. See

Young v. Young, 191 P.3d 1258, 1262 (Wash. 2008) (“Unjust

enrichment is the method of recovery for the value of the benefit

retained absent any contractual relationship . . . .” (emphasis added));

see also Pengbo Xiao v. Feast Buffet, Inc., 387 F. Supp. 3d 1181, 1190–

91 (W.D. Wash. 2019) (“Under Washington law . . . [w]here a valid

contract governs the rights and obligations of the parties, unjust

15

Plaintiffs also face obstacles on the injury and causation elements. It is

unnecessary to address these issues given plaintiffs’ failure to satisfy the

preceding elements.

USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 25 of 25

21-14317 Opinion of the Court 25

enrichment does not apply.”). Plaintiffs, however, specifically

incorporated the terms of their contract with Amazon as part of

their unjust enrichment count. So, while plaintiffs may plead

breach of contract and unjust enrichment in the alternative, see,

e.g., Fed. R. Civ. P. 8(d)(2)–(3), they have not done so. Instead,

plaintiffs pleaded a contractual relationship as part of their unjust

enrichment claim, and that contractual relationship defeats their

unjust enrichment claim under Washington law. 16 Young, 191 P.3d

at 1262; see also Gociman v. Loyola Univ. of Chicago, 41 F.4th 873, 887

(7th Cir. 2022) (“[A] party may not incorporate by reference

allegations of the existence of a contract between the parties in the

unjust enrichment count.”).

IV. Conclusion

Plaintiffs ask us to ignore the plain meaning of the contract

they agreed to, forget the worldwide effect of the COVID-19

pandemic, and reverse the district court’s dismissal. We decline

their request.

Accordingly, we affirm the district court’s dismissal of

plaintiffs’ First Amended Complaint for failure to state a claim with

prejudice.

AFFIRMED.

16

To the extent plaintiffs argue there was not an enforceable contract

(unconscionability), we have already dispensed with that argument.