Amazon Buyer Tells 2nd Circ. Diet Pill Suit Must Be Tried


An Amazon customer has told the Second Circuit that he should be allowed to litigate his proposed class action over diet pills allegedly sold on the retail giant’s site since Amazon has recently changed its conditions of use to require litigating disputes in court.

Dean Nicosia said that in May, Amazon took out a provision in its terms of use that required the arbitration of customer disputes and replaced it with one that mandates that all customer disputes be litigated. His proposed class action over sales of a dangerous weight-loss supplement had been sent to arbitration by the Second Circuit in June 2020, but Nicosia said Amazon’s change makes that decision “irrelevant.”

“It is the rare case indeed when a company like Amazon revokes its mandatory arbitration agreement and replaces it with a mandatory requirement to litigate customer disputes in the courts,” Nicosia said. “But that is precisely what occurred here.”

In the June 2020 decision, the appeals panel said Nicosia’s suit must go to arbitration since his continued use of the site after learning about its arbitration clause amounts to assent to the agreement.

Even though Nicosia filed his suit in 2015, he said Amazon’s amended conditions of use provisions apply to his case.

“Amazon has consistently maintained throughout this litigation that its conditions of use are not limited temporally and that the most recent conditions of use controls the procedure for resolving customer disputes,” Nicosia said.

Amazon on its own decided to change the terms of its customer agreement to try disputes instead of arbitrating them, Nicosia said.

The weight-loss supplement he purchased contained sibutramine, a controlled substance available only by prescription that has been linked to serious heart events. The product was removed from Amazon’s website within 24 hours of the U.S. Food and Drug Administration issuing a public notification urging consumers to stop using 1 Day Diet in November 2013.


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