Advertising Law Blog

Class Action Accuses Amazon Prime of “Dark Patterns”

* Taylor Lodise is a law clerk in the Litigation practice group.

On November 9, 2022, amidst ongoing investigations by the FTC regarding “dark patterns” that Amazon allegedly employed to discourage subscribers from canceling their Amazon Prime memberships, a class-action lawsuit named Amazon as a defendant. The lawsuit was filed in United States District Court for the Western District of Washington and is styled Dorobiala v. Amazon.com, Inc.

According to the complaint, class representative Thomas Dorobiala, like countless other Americans, tried to cancel his Amazon Prime membership but, due to Amazon’s web of “dark patterns,” could not make it through all of the steps. He claims he is still required to pay for his membership. The Complaint seeks over $5 million in aggregated damages through a jury trial demand and alleges violations of the Washington Consumer Protection Act (WCPA). That statute prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.”

The class seeks damages for the added subscription fees paid because of Amazon’s deceptive behavior, along with treble damages pursuant to the WCPA, and an order enjoining further “dark pattern” practices. Among the questions to be addressed are: (1) whether Amazon “intentionally designed its cancellation policy to deceive consumers by creating unreasonable obstacles to completing the cancellation process”; (2) whether its cancellation process is “likely to mislead a reasonable consumer”; and (3) what damages, if any, were sustained by Mr. Dorobiala and the rest of the class.

As this blog has previously reported, the FTC defines “dark patterns” as website “design features used to deceive, steer, or manipulate users into behavior that is profitable for an online service, but often harmful to users or contrary to their intent.” These “tricks” often involve “an online sleight of hand using visual misdirection, confusing language, hidden alternatives, or fake urgency to steer people toward or away from certain choices,” utilizing techniques such as “buttons with the same style but different language, a checkbox with double negative language, disguised ads, or time pressure designed to dupe users into clicking, subscribing, consenting, or buying.”

“Dark patterns” are becoming increasingly common in today’s online consumer market, and Amazon, with 163 million subscribers in the United States alone, has been accused of such behavior on prior occasions. The Dorobiala complaint focuses specifically on Amazon Prime’s Membership cancellation process which, as reported in March 2022 by Business Insider, makes cancellation of members’ Prime accounts more difficult, all through a “secret project” called Project Iliad.  

Under Project Iliad, fewer Amazon Prime members canceled their memberships after being required to navigate a common “dark pattern” technique called a “roach motel,” a funnel which is simple to enter but difficult to escape with the desired result. Amazon allegedly required consumers to navigate several webpages and repeated confirmations on top of disorienting, interjecting graphics. It also allegedly confused consumers by posing questions unrelated to the goal of canceling the membership. Project Iliad reportedly succeeded in reducing cancellations by as much as 14% in 2017. The convoluted nature of Amazon’s Prime cancellation process starkly contrasts the ease of opening an Amazon Prime account with just a couple straightforward mouse clicks.

Another “dark pattern” technique Amazon is accused of embedding in the cancellation process is confirm-shaming, which technique uses messages to exploit the user’s bias towards loss aversion, making the user feel bad about wanting to cancel their membership. According to the Complaint, Amazon also forces the Prime member to forego several opportunities that either delay cancellation, such as requests for a three-day reminder before the renewal date, or switching the type of membership from monthly to annual or vice versa, before a member can finally cut ties. “In effect, the process tests the Prime member’s will to quit Amazon,” reads the Dorobiala complaint. Such a “combination of dark patterns has a compounding effect, which will increase the impact of each dark pattern and exacerbate the harm they present to the consumer.”

The Dorobiala lawsuit is only the most recent spotlight to be shined on Amazon’s alleged practices since last year. In May 2021, the Washington D.C. Attorney General filed a lawsuit against Amazon at the urging of consumer group EPIC (the Electronic Privacy Information Center) and other consumer groups. This sparked a governmental investigation of Amazon by the FTC as well as in Europe. The Dorobiala complaint explains that, in cooperation with European authorities, “Amazon began modifying its Prime web interface last year, labelling the cancel button more clearly and shortening the explanatory text . . . Amazon also eliminated distracting warnings that deterred consumers from cancelling.” Despite the relief given to European consumers, and the FTC’s current investigation, the lawsuit charges that Amazon has yet to remove the “dark patterns” which hinder U.S. customers from canceling Amazon Prime. 

TAKEAWAY: Despite the FTC’s ongoing investigation and previous media exposure of the issue, Amazon’s U.S. customers have yet to see any changes in Amazon’s Prime membership cancellation process. Perhaps the Dorobiala lawsuit will bring increased pressure on Amazon to implement similar changes for its U.S. members.