SEATTLE (Legal Newsline) - Amazon is hoping to prove the current regime at the Federal Trade Commission is distorting federal law without warning and wants a judge's help.
The online commerce giant faces a lawsuit filed last year by the FTC in Seattle federal court that accuses it of tricking shoppers into enrolling in its Prime program then making it difficult for them to cancel.
The FTC, headed by longtime Amazon critic Lina Khan (who has also filed an antitrust lawsuit against the company, though she still uses it to buy diapers), alleges violation of the Restore Online Shoppers' Confidence Act. That 2010 law targets so-called "negative option" transactions.
Amazon says the FTC has never before used ROSCA this way, writing Feb. 15 that the FTC is "inventing a new legal standard that is neither supported by ROSCA nor found in the FTC's past guidance."
And to prove this, it is asking Judge John Chun, a Joe Biden-appointee, to force the FTC to disclose certain documents that it has so far refused to.
"The FTC has refused to produce - or even search for - the vast majority of documents reflecting its internal discussions on the very issues it has chosen to place front and center in this case," Amazon's motion to compel says.
"Even in the normal course, that refusal flaunts clear caselaw holding that such documents are relevant and discoverable under the broad civil discovery standards. Here, where the FTC both claims that the operative standards are clear enough to support its claims while publicly asserting they are ambiguous and in need of revision, the imperative of uncovering these plainly relevant and responsive materials is particularly acute."
Amazon seeks:
-FTC internal memos reflecting the agency's interpretation over time of ROSCA, negative options and "dark patterns";
-Documents relating to the FTC's ongoing negative option rulemaking that were created after June 21, the day it sued Amazon;
-Documents relating to the FTC's 2009 report "Negative Options - A Report by the staff of the FTC's Division of Enforcement" and a related workshop; and
-Documents relating to FTC press releases about the case.
Part of Amazon's defense is the FTC did not provide fair notice about what it says are changing requirements under ROSCA and that the company lacked "actual knowledge" that its practices could be construed as illegal.
The FTC said the information requested is "irrelevant to whether Amazon violated the law." It has also claimed the requests were too burdensome and that it would not search internal emails to find what is asked of it.
A Feb. 26 response by the FTC says the information is also protected by the attorney-client privilege. Amazon replied a few days later.
"(T)he FTC is wrong that the documents have 'nothing to do with this case,' because thy are relevant to show the FTC has manufactured a legal standard here that does not exist in the law," the company wrote.
Judge Chan is currently weighing the company's motion to dismiss, which Amazon feels got a boost from a recent ruling in a class action lawsuit brought by private individuals under Oregon and California consumer protection laws.
On Feb. 26, Judge Ricardo Martinez dismissed a claim under the Consumer Legal Remedies Act.