SEATTLE (Legal Newsline) - The Federal Trade Commission can interview 22 witnesses from Amazon, a federal judge has ruled in allowing the agency to exceed the usual maximum.
Seattle federal judge John Chun's Sept. 19 order comes in a lawsuit alleging Amazon tricks shoppers into enrolling in its Prime program then makes it hard illegally hard to cancel. The FTC is also pursuing an antitrust case against Amazon being handled by the same judge.
Chun already ruled the FTC won't have to hand over internal documents that show how it has interpreted a federal online shopping law known as ROSCA through the years. He's denied the company's motion to dismiss the case and has now allowed the FTC to far surpass the 10-deposition maximum.
"In the spirit of compromise, Amazon already consented to increase the limit to 16 identified depositions, and made it clear it is willing to negotiate a larger number if the FTC will identify the additional deponents and the non-duplicative reasons their testimony is sought," attorneys for Amazon wrote.
"But in response to Amazon, and in its motion to the Court, the FTC refuses to do so.
"After working on this case for more than three years, receiving hundreds of thousands of documents, and obtaining testimony from 35 investigational hearings, the FTC is doubtlessly in a position to identify the witnesses it feels it needs to examine and explain with particularity the reasons why - as the law requires."
The FTC and Chair Lina Khan allege violations of the Restore Online Shoppers' Confidence Act, a 2010 law that targets so-called "negative option" transactions. Amazon has said the FTC had never before used ROSCA in this way, hoping memos through the years would show it was not on "fair notice" that it could face ROSCA liabilities.
Chun's Aug. 22 order found him unpersuaded to dig into why the FTC is now applying ROSCA in the manner it does now, more than a decade after it was signed into law.
Amazon sought:
-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 Amazon says are changing requirements under ROSCA and that the company lacked "actual knowledge" that its practices could be construed as illegal.
Chair Khan is Amazon's Public Enemy No. 1. Her long-planned antitrust lawsuit targets Amazon's policy that third-party vendors can't charge less for their products elsewhere, even though Amazon gets a percentage of their sales made on its site.
Chun is also handling that case. Khan, whose anti-business efforts include a ban on noncompete employment clauses that has been blocked by multiple courts, has admitted she still shops on Amazon.
Amazon says she is attacking the "very essence of competition." She's also pushing antitrust claims against Facebook owner Meta, though that company says the FTC can't even show what "market" has been manipulated.