In a putative class action against Amazon, Nicosia v.
Amazon.com, Inc., the Second Circuit recently issued a ruling
(“Nicosia II”) sending the named
plaintiff's claims to arbitration based on an arbitration
clause contained in Amazon's conditions of use. The
Second Circuit rejected plaintiff's arguments that he did not
have notice of, or agree to, the arbitration clause. Applying
ordinary principles of notice and assent, the Second Circuit held
that the plaintiff was bound by the clause, deeming as
“irrelevant” plaintiff's assertion that he never
read the terms and conditions that included the arbitration
clause. Amazon's conditions had included some form of
arbitration clause since before the plaintiff's subject
transaction; early in the lawsuit, Amazon had raised the clause as
possible grounds for dismissal; and the plaintiff had continued to
make purchases on Amazon's platform
thereafter.
