Advertising Law Blog

Alleged “dark patterns” now in play in at least four separate actions

Last year, this blog reported about Dorobiala v. Amazon.com, a private class action pending in federal court in the Western District of Washington against Amazon over the "dark patterns” Amazon used to hamper consumers from canceling their subscriptions to the Amazon Prime program. As described in a recent blog post, the Federal Trade Commission (“FTC”) upped the ante in June by filing suit against Amazon in the same court.

Meanwhile, not only is Dorobiala is still pending, there are at least two other private class actions, also in Washington’s Western District: Daly v. Amazon.com and Nicholas v. Amazon.com. None of those cases have progressed very far because Amazon has bogged them down with motions to consolidate that are still pending as of the date of this article. But the FTC lawsuit will likely kickstart the substantive litigation.

The plaintiff’s attorneys in Dorobiala have already acknowledged the similarity of the lawsuits in a court submission. The attorneys wrote that the FTC lawsuit “presents overlapping factual allegations and similar legal theories concerning substantially the same transactions.” Thus, Amazon will now have to defend against two to four separate claims that it acted deceptively in the online design and implementation of the Prime cancellation policy.

The FTC’s allegations expanded the focus a bit, also targeting Amazon’s allegedly deceptive enrollment practices in addition to the cancellation process. The FTC’s standard for filing a lawsuit is that it has “reason to believe” that the defendants are violating the law and also that the lawsuit will be in the public interest. However, the legal theories differ slightly, as the FTC’s complaint action alleges federal law violations under the FTC Act and the Restore Online Shoppers’ Confidence Act (commonly known as “ROSCA”), whereas Dorobiala seeks relief under the Washington Consumer Protection Act.

TAKEAWAY: Online retailers take notice. In September 2022, the FTC issued a report signaling its intention to combat dark-pattern e-commerce website practices. Private class actions against Amazon followed, and now there is an FTC action that requires reckoning. The FTC’s lawsuit begins a new stage of active enforcement that should cause all online retailers to consider whether their website design includes dark patterns. Similar lawsuits will certainly be forthcoming against other targets, not only from the FTC but from private class-action plaintiffs, spurred on by the increased attention coming from the FTC.