Case No.

C13-480-MJP
United States District Court, W.D. Washington, at Seattle.

Peters v. Amazon Services LLC

2 F. Supp. 3d 1165 (W.D. Wash. 2013)
Decided Nov 5, 2013

MARSHA J. PECHMAN who “opened a seller account with Amazon and ...
for whom Amazon has received Payment
1167 *1167
Transaction funds for at least one buyer on the
Britton D. Monts, The Monts Firm, Austin, TX, R.
Amazon.com website since March 15, 2009.” ( Id.
Martin Weber, Jr., Richard E. Norman, Crowley
at 9.) Plaintiffs also seek to represent a putative
Norman LLP, Houston, TX, Jennifer Rust Murray,
subclass of:
Beth E. Terrell, Terrell Marshall Daudt & Willie
PLLC, Seattle, WA, for Plaintiffs. James C. Grant, [A]ll persons or entities in the U.S. (1) who were
John Goldmark, Davis Wright Tremaine, Seattle, provided written notice from Amazon that the
WA, for Defendant. account had been suspended; (2) who, at the time
of such notice, had funds on account with
Amazon; and (3) Amazon did not transmit such
ORDER COMPELLING funds to the seller by the shorter of (a) 90 days
ARBITRATION following the initial date the account was
suspended by Amazon, or (b) the date on which
MARSHA J. PECHMAN, Chief Judge. the seller was provided written notification that
Amazon's review was complete and the decision
to close the account was final.
This matter comes before the Court on Defendant
( Id. at 9.) Plaintiffs amended their complaint in
Amazon Service LLC's motion to compel
April 2013. ( Id.)
arbitration. (Dkt. No. 17.) Having reviewed the
1. Mr. Lane's Seller Accounts
motion, Plaintiffs' response (Dkt. No. 27),
Defendant's reply (Dkt. No. 32), and all related Plaintiff Ken Lane first became an amazon.com
papers, and having heard oral argument on seller in January 15, 2010. (Dkt. No. 18 at 2.) In
October 24, 2013, the Court GRANTS the motion, opening his seller account, he agreed to the terms
finding Plaintiffs agreed to arbitrate their dispute of the Participation Agreement. (Dkt. No. 18 at 4.)
with Amazon. The Court therefore orders the The Participation Agreement established
matter to arbitration and STAYS the case. eligibility for sellers, applicable policies,
described Amazon's role in facilitating a
Background marketplace, and the terms regarding transactions,
Plaintiffs are former third-party Amazon.com seller taxes, and refunds/returns, among other
sellers. (Dkt. No. 16.) They sue Amazon alleging subjects. (Dkt. No. 18–3). Pertinent to the instant
breach of contract, breach of fiduciary duty, motion, the Marketplace Participation Agreement
violations of Washington's Consumer Protection contained a choice of law provision and forum
Act, and unjust enrichment. ( Id.) The complaint is selection clause:
brought on behalf of a putative class of persons

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Peters v. Amazon Services LLC 2 F. Supp. 3d 1165 (W.D. Wash. 2013)

The laws of the state of Washington govern this a hyperlink to the BSA. Mr. Lane clicked the box
Participation Agreement and all of its terms and indicating he had read the BSA and agreed to its
conditions, without giving effect to any principles terms. ( Id.) Pertinent to the pending motion is the
of conflicts of laws or the Convention on BSA's choice of law and forum selection
Contracts for the International Sale of Goods. Any provisions:
dispute with Amazon or its affiliates relating in
any way to these terms and conditions or your use
Any dispute with Amazon or its affiliates or claim
of the Services in which the aggregate total claim
relating in any way to this Agreement or your use
for relief sought on behalf of one or more parties
of the Services shall be adjudicated in the
exceeds $7,500 shall be adjudicated in any state or
Governing Courts, ... or, if Your Elected Country
federal court in King County, Washington, and
is the United States, we both consent that any such
you consent to exclusive jurisdiction and venue in
dispute or claim will be resolved by binding
such courts.
arbitration as described in this paragraph, rather
( Id. at 8.)
than in court, except that you may assert claims in
a small claims court that is a Governing Court ...
For the next two years, Mr. Lane marketed, sold, (Dkt. No. 18–1 at 5.) The BSA defined arbitration
1168 and shipped aviation-related *1168 equipment using as:
amazon.com. In April 2012, Amazon notified Mr.
Lane that it had received complaints from other
There is no judge or jury in arbitration, and court
members of the amazon.com community about
review of an arbitration award is limited.
emails he had sent. (Dkt. No. 19–1 at 14.) Amazon
However, an arbitrator can award on an individual
investigated and determining he was conspiring
basis the same damages and relief as a court
with others to price-fix. ( Id. at 18.) It then
(including injunctive and declaratory relief or
suspended Mr. Lane's account. ( Id. at 3.) Mr.
statutory damages) ...
Lane alleges when the suspension occurred,
( Id.) Sellers who execute the BSA also give up
Amazon was in possession of money for pending
the ability to pursue collective action:
sales. (Dkt. No. 16 at 9.) Mr. Lane appealed the
suspension. ( Id.) Shortly after, Amazon notified
Mr. Lane that the suspension was permanent. We each agree that any dispute resolution
(Dkt. No. 19 at 3.) Mr. Lane demanded Amazon proceedings will be conducted only on an
pay him the amounts it had collected from his individual basis and not on a class, consolidate or
final sales. (Dkt. No. 16 at 9.) representative class action. If for any reason, a
claim proceeds in court, rather than arbitration we
Five days after Amazon closed his 2010 account,
each waive any right to a jury trial.
Mr. Lane opened a second one. (Dkt. No. 19 at 3–
( Id. at 6.)
4.) To open that account, Mr. Lane was presented
with the Business Solutions Agreement (“BSA”),
an agreement setting the terms for the Because Amazon had already suspended Mr.
Amazon/seller relationship. (Dkt. No. 18 at 2.) Lane's selling privileges, it blocked the second
The seller signup page included the following: account. (Dkt. No. 19 at 3.) Mr. Lane then opened
a third account. ( Id. at 4) Again, during the sign-
Amazon Services Business Solutions Agreement:
up process, he was required to click on a box
[ ] I have read and accepted the terms and
indicating he had read and agreed to the terms of
conditions of the Agreement.
the BSA. Amazon again blocked this account. (
( Id.) The underlined word “Agreement” included
Id.) In total, after June 2012, Mr. Lane opened

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Peters v. Amazon Services LLC 2 F. Supp. 3d 1165 (W.D. Wash. 2013)

four new seller accounts. In each instance, he Defendant Amazon now moves to compel
clicked a box to indicating he had read and agreed arbitration on the basis that Plaintiffs agreed to the
to the BSA. Mr. Lane though, never sold through BSA, which stipulates to resolving any dispute on
any of these accounts, because Amazon blocked an individual basis in binding arbitration. (Dkt.
and terminated each one. (Dkt. No. 19 at 3–4.) No. 17 at 1.)

2. Ms. Peters' Seller Account Analysis

Ms. Peters opened an Amazon seller account in Under the Federal Arbitration Act, a court's role is
October 2012. (Dkt. 16 at 7.) In opening this “limited to determining (1) whether a valid
account Ms. Peters agreed to the terms of the BSA agreement to arbitrate exists and, if it does, (2)
1169 by clicking a box *1169 (identical to the one whether the agreement encompasses the dispute at
presented to Ms. Lane) indicating she assented to issue.” Chiron Corp. v. Ortho Diagnostic Sys.,
its terms. (Dkt. No. 18 at 2.) The BSA contained a Inc., 207 F.3d 1126, 1130 (9th Cir.2000) (citation
choice of law provision identical to the one agreed omitted). If the answer to both questions is ‘yes,’
to by Mr. Lane. It stipulated to arbitration of any then “the Act requires the court to enforce the
dispute. ( Id.) arbitration agreement in accordance with its
terms.” Id. By its own terms, the Act “leaves no
Using amazon.com, Ms. Peters sold “hard to find
place for the exercise of discretion by a district
DVDs.” (Dkt. No. 1 at 7.) Her first sale occurred
court,” instead it mandates “that district courts
October 15, 2012. Less than a month later,
shall direct the parties to proceed to arbitration on
Amazon informed Ms. Peters it was suspending
issues as to which an arbitration agreement has
her account. (Dkt. No. 16 at 8.) Amazon provided
been signed.” Id. (citing Dean Witter Reynolds
no reason, other than Ms. Peters' account failing
Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 84
the seller review process. (Dkt. No. 19–1 at 4.)
L.Ed.2d 158 (1985)) (emphasis in original).
Ms. Peters appealed. ( Id.) At the time of the
suspension, Plaintiffs allege Amazon was in In the Ninth Circuit, “the most minimal indication
possession of funds from Ms. Peters' sales. (Dkt. of the parties' intent to arbitrate must be given full
No. 16 at 8.) Amazon closed the account on effect ...” Rep. of Nicaragua v. Std. Fruit Co., 937
November 8, 2012. ( Id.) Ms. Peters demanded F.2d 469, 478 (9th Cir.1991) (citations omitted). It
Amazon forward the money owing from her few is well established “that where the contract
sales. ( Id.) She argued timely remittance was contains an arbitration clause, there is a
required by the Participation Agreement. (Dkt. presumption of arbitrability,” particularly where
No. 29–2 at 53.) the clause is broad. AT & T Techs., Inc. v.
Commc'ns Workers of Am., 475 U.S. 643, 650, 106
3. Procedural Posture S.Ct. 1415, 89 L.Ed.2d 648 (1986). Indeed,
Plaintiffs filed this case in March 2013. (Dkt. No. “doubts should be resolved in favor of coverage.”
1.) They allege Amazon requires its sellers, like Id. (internal quotations omitted). However, “the
Mr. Lane and Ms. Peters, to use its payment party seeking to enforce an arbitration agreement
transmission services for sales on amazon.com but bears the burden of showing that the agreement
do not timely remit money collected from their exists and that its terms bind the other party.”
buyers. (Dkt. No. 16 at 3.) Plaintiffs allege this Gelow v. Cent. Pac. Mortg. Corp., 560 F.Supp.2d
practice violates the Uniform Money Services Act, 972, 978 (E.D.Cal.2008). “This burden is a
Washington's Consumer Protection Act, is a substantial one[.]” Id. at 979. “Before a party to a
breach of contract, and unjustly enriches Amazon. lawsuit can be ordered to arbitrate ..., there should
( Id. at 14–26.) Plaintiffs seek a monetary award be an express, unequivocal agreement to that
as well as a declaratory judgment. ( Id.) 1170 effect*1170 ... The district court ... should give to

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Peters v. Amazon Services LLC 2 F. Supp. 3d 1165 (W.D. Wash. 2013)

the opposing party the benefit of all reasonable Any dispute with Amazon or its affiliates or claim
doubts and inferences that may arise.” Three relating in any way to this Agreement or your use
Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 of the Services shall be adjudicated in the
F.2d 1136, 1141 (9th Cir.1991) Governing Courts, ... or, if Your Elected Country
is the United States, we both consent that any such
1. Is there a valid Agreement to dispute or claim will be resolved by binding
Arbitrate? arbitration as described in this paragraph, rather
There is. In determining whether the parties than in court, except that you may assert claims in
agreed to arbitrate, Courts apply ordinary state- a small claims court that is a Governing Court ...
law contract principals. First Options of Chicago, (Dkt. No. 18–1 at 5.)
Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920,
131 L.Ed.2d 985 (1995). Washington courts apply
There is no dispute that Plaintiffs agreed to the
the manifest theory of contract interpretation:
BSA, including its forum selection clause. Ms.
“[t]he role of the court is to determine the mutual
Peters agreed to the BSA when she opened her
intentions of the parties according to the
seller account in October 2012. Mr. Lane did so
reasonable meaning of their words and acts.”
four times from June 2012 to January 2013. (Dkt.
Fisher Props. Inc. v. Arden–Mayfair, Inc., 106
No. 19 at 4.) Indeed, neither could have opened
Wash.2d 826, 837, 726 P.2d 8 (1986) ( citing
their accounts without agreeing to the BSA in its
Dwelley v. Chesterfield, 88 Wash.2d 331, 560 P.2d
entity. ( Id.; Dkt. No. 18.)
353 (1977)).
Notwithstanding their clear agreement to the
The intent of the parties to a contract “may be
arbitration provision, Plaintiffs argue the
discovered not only from the actual language of
Participation Agreement's jurisdictional mandate
the agreement, but also from ‘viewing the contract
controls over the BSA. Plaintiffs point to a
as a whole, the subject matter and objective of the
provision in the BSA stating that if there is a
contract, all circumstances surrounding the
conflict “between the Program Policies and this
making of the contract, the subsequent acts and
Agreement, the Program Policies will prevail.”
conduct of the parties to the contract, and the
(Dkt. No. 27 at 17.) The starting point for
reasonableness of respective interpretations
Plaintiffs theory is the BSA, which defines a
advocated by the parties.’ ” Bort v. Parker, 110
Program Policy as:
Wash.App. 561, 573, 42 P.3d 980 (2002) (citations
omitted). In interpreting an arbitration clause, the all terms, conditions, policies, guidelines, rules
intentions of the parties as expressed in the and other information on the Amazon Site or on
agreement controls, but “those intentions are Seller Central, including those shown on the
generously construed as to issues of arbitrability.” “Policies and Agreements” section of Seller
W.A. Botting Plumbing and Heating Co. v. Central or elsewhere in the “Help” section of
Constructors–Pamco, 47 Wash.App. 681, 684, Seller Central (and, for purposes of the Fulfillment
736 P.2d 1100 (1987) (quoting Mitsubishi Motors 1171 by Amazon Service, specifically including*1171 the
Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. FBA Guidelines). All Program Policies applicable
614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). to WebStore by Amazon also apply to Amazon
WebStore, unless otherwise specifically stated.
The BSA contains a broad forum selection clause
( Id. at 8). Plaintiffs also turn to a second
mandating arbitration:
definition in the BSA, which defines the Amazon
site as “that website, the primary home page of
which is identified by the applicable one of the

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Peters v. Amazon Services LLC 2 F. Supp. 3d 1165 (W.D. Wash. 2013)

following (and any successor or replacement of only one reasonable meaning can be ascribed to
such websites): ... the URL www. amazon. com the agreement when viewed in context, that
...” (Dkt. No. 27 at 15, quoting Dkt. No. 18–1 at meaning necessarily reflects the parties'
7.) Plaintiffs' attorneys attest to having reached the intent....”).
Participation Agreement by using the search
Second, Plaintiffs' theory that any information on
engine Google and searching for the term
the amazon.com website is a “Program Policy” is
“Amazon Seller Help.” (Dkt. No. 29 at 2.)
out of step with basic contract interpretation
Likewise, Plaintiffs' counsel also attests to having
principles to avoid absurd results. Eurick v. Pemco
located the Participation Agreement by accessing
Ins. Co., 108 Wash.2d 338, 341, 738 P.2d 251
it through a paralegal's amazon.com seller home
(1987) (Courts must avoid a “strained or forced
page. ( Id. at 3.) By connecting six hyperlinks in
construction” of the agreement and avoid
the “help” and “other links” tab, counsel was able
interpretations “leading to absurd results.”) The
to locate the Participation Agreement. ( Id.; see
basic premise of Plaintiffs' argument is that any
also Dkt. No. 45.) According to Plaintiffs, because
information contained in the Amazon site, which
the Participation Agreement is available on the
addresses selling in Amazon meets the definition
Amazon website, it is a Program Policy. (Dkt. No.
of a Program Policy. If this were true, a seller
27 at 11.)
would not know to what he or she had agreed,
short of reading every screen on the Amazon
This argument is flawed for at least three reasons. website and Seller Central (and doing so
First, what matters for the present motion is the repeatedly to keep apprised of any changes). The
agreement Plaintiffs intended, as manifested by Court finds this possibility an absurd result, and
the contract language. State Dep't of Corr. v. Fluor declines to adopt such an interpretation of the
Daniel Inc., 160 Wash.2d 786, 795, 161 P.3d 372 BSA.
(2007) (Court's must “carry out the intent of the
Third, Amazon's reply neutralizes Plaintiffs'
parties as manifested ... by the parties' own
factual representations. Amazon offers credible
contract language.”) Here, the BSA's contract
evidence that only Legacy Sellers (those sellers
language evidences no intent for the Participation
who signed up before 11/2011 and have not agreed
Agreement to be a “Program Policy.” Instead, in
to the BSA, like Plaintiffs' counsel Mr. Hayes) can
referring to the Participation Agreement, the BSA
1172 access the Participation Agreement from *1172
uses the term “Seller Agreement.” (Dkt. No. 18–1
their “Seller Central.” (Dkt. No. 34.) It is simply
at 22.) By clearly defining the Participation
not available in the Policies and Agreements page
Agreement as a “Seller Agreement,” and not a
or Help page for those sellers who signed up under
“Program Policy,” the BSA's plain language
the BSA. ( Id.) Amazon also explains that to reach
avoids the ambiguity Plaintiffs now attempt to
the Participation Agreement (other than using the
raise. Mayer v. Pierce County Medical Bureau,
Google search engine) Plaintiffs' counsel had to
Inc., 80 Wash.App. 416, 421, 909 P.2d 1323
exit the “Seller Central” and reach other “help”
(1995) (A contract provision, however, is not
pages. ( Id.) The Court therefore finds that while
ambiguous simply because the parties suggest
the some sellers may be able to reach the
opposing meanings; and “we will not read
Participation Agreement through use of a search
ambiguity into a contract where it can reasonably
engine or as Legacy Sellers, Amazon did not hold
be avoided.”) Nothing offered by Plaintiffs
it out as applicable to all sellers and readily
contravenes that reasonable interpretation.
available to all sellers.
Interstate Prod. Credit Ass'n v. MacHugh, 90
Wash.App. 650, 654, 953 P.2d 812 (1998) (“If

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Peters v. Amazon Services LLC 2 F. Supp. 3d 1165 (W.D. Wash. 2013)

Plaintiffs argue that any ambiguity in the contract In sum, the Court finds a valid agreement to
should be read against Amazon. (Dkt. No. 27 at arbitrate. Given that finding, the Court does not
22.) While it is a basic tenant of contract law that reach the merits of the parties' arguments as to the
the ambiguities in a contract are construed against arbitration clause in the amazon.com conditions of
the drafter, that maxim does not apply here. use.
Plaintiffs' misapplication of the ambiguity doctrine
is demonstrated by their reliance on cases 2. Do Plaintiffs' claims fall within the
factually and legally distinguishable. In Stephens scope of the clause?
v. TES Franchising, 2002 WL 1608281, at *2–3 They do. “[A]n order to arbitrate ... should not be
(D.Conn. July 10, 2002), in applying Connecticut denied unless it may be said with positive
law, the court found ambiguity on the face of the assurance that the arbitration clause is not
agreement because as “Section XX (entitled susceptible of an interpretation that covers the
‘Arbitration’) provides that all disputes (with the asserted dispute. Doubts should be resolved in
exception of trademark issues) must be decided by favor of coverage.” AT & T Techs., Inc. v.
arbitration, but ¶ 22.01(a) expressly provides that Comm'cns Workers of Am., 475 U.S. 643, 650, 106
the parties ‘agree to submit any dispute between S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting
them to the jurisdiction and venue of a court of United Steelworkers of Am. v. Warrior & Gulf
competent jurisdiction.’ ” Here, unlike Stephens, Nav. Co., 363 U.S. 574, 582–83, 80 S.Ct. 1347, 4
Plaintiffs do not present the Court with two L.Ed.2d 1409 (1960)); see Warrior & Gulf, 363
competing provisions within the same document, U.S. at 584–85, 80 S.Ct. 1347 (“In the absence of
which makes the agreement internally any express provision excluding a particular
incongruous. Instead, Plaintiffs agreed to the BSA, grievance from arbitration, ... only the most
which contains only one, unambiguous, forum forceful evidence of a purpose to exclude the
selection clause; the ambiguity doctrine does not 1173 claim from arbitration can pre*1173 vail....”). The
apply. See Hanson Indus., Inc. v. County of party resisting arbitration bears the burden of
Spokane, 114 Wash.App. 523, 58 P.3d 910 (Div. 3 showing that the agreement does not cover the
2002). By this same reasoning, the other case claims at issue. Green Tree Fin. Corp.–Ala. v.
discussed at length by Plaintiffs, Christianson v. Randolph, 531 U.S. 79, 91–92, 121 S.Ct. 513, 148
Poly–America, 2002 WL 31421684 (D.Minn. Oct. L.Ed.2d 373 (2000).
25, 2002), is off point.
The BSA mandates:
Finally, Plaintiffs are incorrect in suggesting
Any dispute with Amazon or its affiliates or claim
factual disputes preclude this Court from
relating in any way to this Agreement or your use
compelling arbitration. At oral argument Plaintiffs'
of the Services ... will be resolved in binding
counsel suggested the record here is akin to Kwan
arbitration.
v. Clearwire Corp., 2012 WL 32380 (W.D.Wash
(Dkt. No. 18–1 at 5.) The BSA defines “Service”
Jan. 3, 2012), and the intention of the parties is
to mean “Selling on Amazon.com, Amazon
unknown. In Kwan, Judge Robart declined to
Webstore, Fullfillment by Amazon, and any
compel arbitration and ordered an evidentiary
related services we make available.” ( Id. at 8.)
hearing when the parties stipulated to the
The BSA's arbitration clause clearly covers
existence of a factual dispute regarding plaintiffs'
Plaintiffs' claims because they directly relate to
assent to the agreement. Kwan,2012 WL 32380 at
their use of Amazon's services.
*10. In contrast, no factual dispute exists here as
to Plaintiffs' execution of the BSA.

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Peters v. Amazon Services LLC 2 F. Supp. 3d 1165 (W.D. Wash. 2013)

relationships and not timing”) (internal quotation

Plaintiffs, however, suggest Mr. Lane's dispute omitted). Here, when Mr. Lane executed the BSA
falls outside the scope of the arbitration provision and agreed to arbitrate any dispute, he was already
because he executed that agreement only after the aware of the facts underlying this case including
suspension of his first account. They argue his Amazon's alleged failure to timely remit buyer
claims are instead governed by the Participation funds. (See e.g. Dkt. No. 19–1 at 18, 22–23.)
Agreement. At first, this argument has appeal. Consequently, his claims fall with the scope of the
But, two provisions of the BSA render it meritless. arbitration provision.
First, the BSA contains an integration clause,
making it the “entire agreement between the Conclusion
parties,” and “supersedes any previous or Because the parties agreed to arbitration and
contemporaneous oral or written agreements and Plaintiffs' claims clearly fall within the scope of
understandings.” (Dkt. No. 18–1 at 6.) Second, the that arbitration provision, the Court GRANTS the
BSA's arbitration provision is broad, applying to motion to compel arbitration (Dkt. No. 17). The
any dispute between the parties. It is plainly not Court also STAYS the matter for a period of 6
limited to prospective disputes. See, e.g., Green v. months or until arbitration is complete, whichever
W.R.M. & Assocs., Ltd., 174 F.Supp.2d 459, 463 comes first, so that Plaintiffs can pursue their
(N.D.Miss.2001) (where plaintiff was “clearly claims in arbitration. The parties are ORDERED
aware of [the defendant's] past wrongdoing ... at to provide a status report to the Court regarding
the time of signing the Arbitration Agreement” arbitration by May 2, 2014.
concerning “[a]ny dispute,” “[t]his is consistent
The clerk is ordered to provide copies of this order
with the parties' intentions to give up their rights
to all counsel.
to sue in court for all of their potential claims,
whether they occurred before or after signing of
the agreement”); Whisler v. H.J. Meyers & Co.,
Inc., 948 F.Supp. 798, 801–02 (N.D.Ill.1996)
(rejecting plaintiffs' argument that arbitration
agreement could not be applied to transactions that
occurred prior to their signing of the account
agreement, where agreement related to “any
controversy arising out of or relating to any of my
accounts,” a statement that “speaks in terms of