Brodie v. Green Spot Foods, LLC

Background

Carol Brodie sued Green Spot Foods, LLC, Amazon.com Services LLC, and fictitiously named defendants after she became ill following her consumption of Better than Pasta, a konjac-based pasta substitute purchased through Amazon’s website. She alleged stomach symptoms, hospitalization, and other physical and financial injuries. The second amended complaint asserted claims against Amazon for negligence, breach of implied warranty, breach of express warranty, and deceptive practices and false advertising under New York General Business Law §§ 349 and 350.

Green Spot manufactured, packaged, advertised, and sold Better than Pasta. It supplied product information and advertising materials to Amazon under an agreement that gave Amazon broad rights over materials displayed on its website and discretion over the website’s content and listings. Green Spot also used Amazon’s shipping program. Brodie alleged that the product packaging identified konnyaku flour and its connection to konjac but did not warn about konjac’s alleged risks. She also alleged that Amazon and Green Spot received customer complaints about the product and that Amazon participated in advertising and customer-review practices concerning it.

Amazon moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not adequately state a legal claim. The court accepted well-pleaded factual allegations as true for purposes of the motion but did not accept legal conclusions or unsupported assertions.

Negligence

The court applied New York law. A negligence claim requires a legally recognized duty, a breach, a close causal connection between the conduct and injury, and resulting loss or damage. Amazon argued that, as a retailer, it had only a limited duty to conduct an ordinary inspection and could not be liable for dangers in a sealed package that would require expert testing to discover.

The court agreed that a retailer generally must inspect for defects that a reasonable physical inspection would reveal and ordinarily need not test the contents of a sealed package. But the court distinguished a case involving mercury in sealed tuna because the presence of konjac was disclosed on Better than Pasta’s packaging. The court concluded that an ordinary inspection could have revealed that the product contained konjac. Given Brodie’s allegations that konjac’s dangers were well-known and that customer reviews reported digestive problems, the complaint plausibly alleged that Amazon knew or had reason to know of the product’s potential danger. The court therefore denied dismissal of the negligence claim.

Implied Warranty

Under New York’s Uniform Commercial Code, a merchant generally makes an implied promise that goods are fit for their ordinary purposes and conform to statements on their labels. The court recognized that a retailer may avoid liability for latent defects that reasonable inspection could not reveal, but found that this limitation did not resolve Brodie’s claim at the pleading stage.

Because ordinary inspection could have revealed the product’s konjac ingredient, and because Brodie alleged that the ingredient could make the product unsafe for human consumption, the court found the implied-warranty claim adequately pleaded. The court denied dismissal of that claim. It noted that whether the product was actually reasonably safe or unsafe was a question for a jury.

Express Warranty

Brodie relied on two alleged warranties: Amazon’s designation of Better than Pasta as an “Amazon’s Choice” product and Amazon’s A-Z Guarantee, which allegedly allowed customers to obtain refunds for items that were damaged, defective, materially different, or unwanted.

The court held that Brodie did not allege enough facts to show that “Amazon’s Choice” was a specific statement of fact or promise rather than a general expression of opinion. The designation therefore could not support an express-warranty claim.

The court concluded that the A-Z Guarantee could arguably qualify as an express warranty under New York law. However, Brodie did not allege that she asked Amazon for a refund or that Amazon refused one. Her only alleged contact with Amazon was posting a negative product review. Because she did not allege a breach of the Guarantee, the court granted dismissal of the express-warranty claim.

Deceptive Practices and False Advertising

Brodie alleged that Amazon misled consumers about the product’s safety through advertising, the removal of negative reviews, and the allowance of false positive reviews. New York General Business Law §§ 349 and 350 generally require a consumer-oriented misleading act that caused injury.

As to the product advertising, the court did not decide whether Amazon would otherwise be liable under the false-advertising statute. Instead, it held that the Communications Decency Act barred recovery based on advertising content created by another party. The court found that Amazon was an online-service provider and that Brodie had not plausibly alleged that Amazon created or edited Green Spot’s advertising. The court also found that Amazon’s contractual authority to control website content did not establish that Amazon actually altered the advertising. The court therefore rejected the false-advertising theory based on that content.

As to customer reviews, the court found Brodie’s allegations insufficient because they were made on information and belief without supporting facts. The allegation that there “may have been” other negative complaints was considered speculative, and the allegation that paying for false positive reviews was common did not plausibly show that Amazon knew about or permitted the practice. These allegations therefore could not support the consumer-fraud claim.

Disposition

Judge Ramos denied Amazon’s motion to dismiss with respect to Counts I and II, covering negligence and breach of implied warranty. He granted the motion as to Counts III and IV, covering breach of express warranty and deceptive practices and false advertising. The court dismissed Counts III and IV without prejudice and stated that Brodie could move for permission to amend by December 30, 2020. The clerk was directed to terminate Amazon’s motion.