by Paul Alan Levy
Yesterday I discussed a lawsuit filed by Amazon seeking relief against over a thousand anonymous individuals who offered to sell their services posting phony positive reviews about products available for sale on Amazon. The theory of Amazon's complaint is that the users are all registered Amazon users and hence forbidden from taking money for their reviews. Amazon will have to use the subpoena process to identify these users, of course.
But "Gregory Gauthier" posted a comment that is worth considering: there is a mandatory arbitration clause in Amazon's Terms of Service, requiring arbitration of "Any dispute or claim relating in any way to your use of any Amazon Service, or to any products or services sold or distributed by Amazon or through Amazon.com." The clause is unconditional and two-way — it does not purport to bind only Amazon's users. And what Internet Service Provider will honor a letter from an arbitrator asking it to provide documents or information identifying its users?
There is an additional problem for the litigation — the dispute resolution clause strictly requires claims to be pursued "on an individual basis" and forbids the use of "class, consolidated or representative action" procedures. That seems inconsistent with suing "Does 1-1114," and again it is a two-way clause — it limits Amazon as well as its users from joining multiple users in a single proceeding.
Has Amazon been hoisted on its own petard?