Amazon Cites 5th Circuit Reversal in EOX In Support of Motion to Dismiss ROSCA Suit

A recent 5th U.S. Circuit Appeals Court ruling relied on the same line of cases that Amazon and other defendants cited in support of their motions to dismiss the FTC’s case alleging violation of the Restore Online Shoppers’ Confidence Act, said defendants’ filing (docket 2:23-cv-00932) Monday in U.S. District Court for Western Washington in Seattle. In their notice of supplemental authority relating to their motions to dismiss the FTC's amended complaint, the defendants cited the 5th Circuit’s Jan. 8 ruling in Commodity Futures Trading Commission v. EOX Holdings, in which the court reversed a civil-liability finding in favor of the plaintiff because “the Defendants lacked fair notice of the CFTC’s unprecedented interpretation” of a CFTC rule, said the notice. In that case, the CFTC argued that the rule’s “‘controlling plain language’ provided ‘fair notice’ to the public,” the notice said. The 5th Circuit reversed a lower court's ruling, holding that the rule was “at best ambiguous” and “did not give fair notice to the Defendants absent further guidance from the FTC.” The EOX case is relevant to arguments in Amazon’s motion that “fair notice” standards apply only “if a court ‘must defer to an agency interpretation of a statute or regulation’ ... or the agency itself is acting as the adjudicator,” the notice said. The FTC alleges Amazon used “manipulative, coercive, or deceptive user-interface designs,” or dark patterns, to trick consumers into enrolling in automatically renewing Prime subscriptions, it said. The company “knowingly complicated” the Prime cancellation process, said the complaint.