## Facts

- Dean Nicosia bought “1 Day Diet,” a weight-loss product, through Amazon’s website in 2013.
- The product allegedly contained sibutramine, a controlled substance that had been removed from the U.S. market; Nicosia alleged neither Amazon’s listing nor the product labeling disclosed this ingredient at the time of purchase.
- After an FDA public notification, Amazon stopped selling “1 Day Diet,” but Nicosia alleged Amazon continued selling other products identified as containing undisclosed sibutramine.
- Nicosia filed a putative nationwide class action asserting claims under the Consumer Product Safety Act and state-law theories, seeking damages and injunctive relief.
- Amazon’s checkout flow displayed a “Place your order” button and, beneath it in smaller font, a statement that by placing the order the customer agreed to Amazon’s “privacy notice” and “conditions of use,” each presented as a hyperlink; the “Conditions of Use” included mandatory arbitration and a class-action waiver.
- The district court dismissed the case under Rule 12(b)(6) based on the arbitration clause and denied a preliminary injunction for lack of standing.
- Nicosia appealed the dismissal and the denial of preliminary injunctive relief.

## Issues

1. Whether, at the Rule 12(b)(6) stage, Amazon established as a matter of law that Nicosia was on actual or constructive notice of, and assented to, the online “Conditions of Use,” including the arbitration clause.
2. Whether Nicosia had Article III standing to obtain a preliminary injunction based on a real and immediate threat of future injury from Amazon’s alleged sales of sibutramine-containing products.

## Decision

- The Second Circuit affirmed the denial of preliminary injunctive relief.
- The court held Nicosia failed to show a real and immediate threat of future injury and therefore lacked standing for injunctive relief.
- The Second Circuit vacated the Rule 12(b)(6) dismissal and remanded.
- The court held Amazon did not meet its burden, on the pleadings record, to show Nicosia was on notice of and assented to the arbitration agreement as a matter of law.
- The court emphasized that factual disputes about notice and assent in online contracting generally should be resolved through procedures appropriate to arbitrability (e.g., a motion to compel arbitration with an evidentiary record), not through dismissal on an undeveloped pleadings record.

## Legal Principles

- The Federal Arbitration Act favors arbitration, but a party may be compelled to arbitrate only if an enforceable agreement to arbitrate was formed under applicable state contract law.
- Online terms presented via hyperlink are enforceable only if the website provides reasonably conspicuous notice of the terms and the user’s conduct manifests assent; “browsewrap”-style presentation may be insufficient where notice is not clear.
- In assessing inquiry notice in online checkout flows, courts consider page design features such as the hyperlink’s placement, font size, surrounding clutter, and whether the user must affirmatively acknowledge the terms.
- At the Rule 12(b)(6) stage, dismissal based on arbitration is improper where the record does not establish notice and assent as a matter of law; disputed facts about assent may require evidentiary development.
- For injunctive relief, Article III requires a real and immediate threat of future injury; past injury alone does not support standing absent a plausible likelihood of future exposure.

## Conclusion

The Second Circuit held that Amazon’s checkout-page hyperlink presentation did not establish assent to arbitration as a matter of law on a motion to dismiss, requiring remand, while also holding that the plaintiff lacked standing to pursue preliminary injunctive relief because he did not show a likely future injury.


Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir. 2016)