Amazon Moves for Reconsideration of Court’s Dismissal Order in Pricing Policy Suit

A motion filed last Friday by defendant Amazon requested that the Seattle, Washington court overseeing the case clarify or reconsider its dismissal order issued earlier this month. Amazon asserts that the court failed to completely address a critical threshold issue, antitrust standing.

Amazon shoppers filed suit in 2020, alleging that the defendant maintains pricing policies that harm consumers by driving up the cost of goods sold on Amazon and other e-commerce platforms. Specifically, they said that Amazon forbids certain third-party sellers from offering their wares at lower costs elsewhere, creating a price floor.

In mid-March, Judge Richard A. Jones ruled on Amazon’s motion to dismiss. As relevant to Amazon’s motion for reconsideration, the court found that the purchasers had standing to bring the suit pursuant to their theory that third-party Amazon sellers are co-conspirators in the platform’s pricing scheme, even if they conspired involuntarily.

Amazon’s first issue with the ruling is the “notion that sellers in its store are ‘co-conspirators,’” but accepting that as true for purposes of its motion, Amazon asserts that at least 15 of the 21 plaintiffs purchased goods from “e-commerce retailers who even Plaintiffs admit were not co-conspirators,” such as Best Buy and REI.

The company alleges that the court did not rule on the plaintiffs’ claim that “the prices these non-conspirators set were affected by the alleged conspiracies—an umbrella theory of standing.” Amazon further contends that unless the court endorses that theory, one that the plaintiffs reportedly acknowledge that the Ninth Circuit has never before recognized, the court’s ruling is incomplete and therefore erroneous.

As such, Amazon requests reconsideration as to whether the plaintiffs have “antitrust standing for their Sherman Act, Section 1 claim only for claims based on direct purchases from alleged ‘co-conspirators’ and only to the extent they join them as defendants.” Secondarily, the company wants the court to revisit whether the plaintiffs, as indirect purchasers, lack antitrust standing to sue Amazon under Section 2 of the Sherman Act.

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.