• by Wendy Davis  @wendyndavis, July 19, 2024

Siding with Amazon, a federal judge has dismissed a class-action complaint alleging that the company engaged in false advertising by touting free deliveries as a benefit of Amazon Prime, but charging users $9.95 in service fees for grocery orders from Whole Foods.

The ruling, issued Thursday by U.S. District Court Judge Tana Lin in Seattle, grew out of a class-action complaint brought by Amazon Prime subscriber Dena Griffith in 2022, and revised in 2024.

Griffith alleged that Amazon advertised its $139-a-year Prime service by touting “free delivery,” and “free two-hour grocery delivery” as benefits.

Although deliveries from Whole Foods were initially free, Amazon began charging a $9.95 service fee to delivery goods from the grocery store in October 2021, according to the court papers.

Griffith alleged in the complaint that she placed grocery orders from Amazon in 2021 without incurring extra fees, but was charged a $9.95 fee on an order she made in January 2022.

“Based on her viewing of the advertisements promising free delivery and the absence of service fees on her prior purchases from Whole Foods, plaintiff did not expect she would be charged a fee for this purchase,” her complaint read.

The complaint included a claim that Amazon was violating the Washington Consumer Protection Act, which prohibits deceptive advertising.

Amazon urged Lin to throw out the case before trial. Among other arguments, Amazon said that Griffith's complaint failed to identify any ads for Prime with statements that were false at the time.

The company specifically argued that the complaint's allegations regarding Prime ads lacked details, such as “when and where the advertisement was posted, what disclosures accompanied it, or exactly when plaintiff might have seen it.”

“Without such context, the advertisement may very well predate October 2021, and the statements therein accurate and not a 'misrepresentation,'” Amazon argued in a motion seeking dismissal.

Lin agreed with Amazon on that point, writing that Griffith alleged that she viewed ads for Prime in mid-2021 -- before the company instituted the service fee for Whole Foods deliveries.

“Ad statements that Whole Foods grocery delivery was 'free' were true at the time they were made,” Lin wrote.

The ruling allows Griffith to reformulate her allegations and file an amended complaint by August 18.