Amazon's Motion to Dismiss Ignores 'Huge Swaths' of Amended Complaint: Plaintiff

Amazon and Audible “attempt to manufacture a pleading failure by ignoring huge swaths” of plaintiff Tracy McCarthy’s first amended complaint (FAC) and ignore the causal connection between their “misleading statements” and her purported injury, said McCarthy’s Monday memorandum of law (docket 2:23-cv-01019) opposing defendants’ motion to dismiss in U.S. District Court for Western Washington in Seattle. McCarthy’s July lawsuit alleges Amazon used a deceptive practice for the Audible audiobook service to target its Prime users for enrollment in Audible through a process “not clear" to members (see 2308010042). The defendants’ assertion that McCarthy’s New York General Business Law (GBL) claims are time-barred because she waited over three years to file her original complaint in April 2022 isn’t true, she said. The FAC “pleaded exactly how both Amazon and Audible actively concealed material information regarding the enrollment of Amazon Prime customers into an unwanted, unauthorized, and unused Audible membership such that the GBL’s statute of limitations was tolled,” McCarthy said. Defendants’ argument that her unjust enrichment claim is duplicative of her GBL claims is wrong because the claims have different elements and remedies, said the memorandum. On defendants’ argument that McCarthy lacks standing to seek injunctive relief “as she faces no risk of future harm,” the plaintiff said she and class members are “realistically threatened” by similar harms in the future. Defendants' motion to dismiss should be "denied in its entirety," said the plaintiff.