[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-14317 ____________________

ANDREZ MARQUEZ, On behalf of himself and all others similarly situated, including but not limited to, Clarissa Morejon, Morgan Howard, Sophia Feliciano, James Bromley, and Jeff Barr, CLARISSA MOREJON, MORGAN HOWARD, SOPHIA FELICIANO, JAMES BROMLEY, et al., Plaintiffs-Appellants, versus AMAZON.COM, INC., USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 2 of 25

2 Opinion of the Court 21-14317

Defendant-Appellee.

____________________

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:21-cv-80392-DMM ____________________

Before BRANCH and LUCK, Circuit Judges, and SANDS,∗ District Judge. BRANCH, Circuit Judge: At the start of the COVID-19 pandemic, Amazon.com, Inc. (“Amazon”) stopped providing “Rapid Delivery” 1 to Amazon Prime (“Prime”) subscribers. Because Prime subscribers were not notified of the suspension and continued to pay full price for their memberships, Andrez Marquez and other plaintiffs brought a putative class action against Amazon alleging breach of contract, breach of the covenant of good faith and fair dealing, violation of the Washington Consumer Protection Act (“WCPA”), and unjust enrichment. The district court granted Amazon’s motion to

∗Honorable W. Louis Sands, United States District Judge for the Middle District of Georgia, sitting by designation. 1 “Rapid Delivery” is not a contract term. The parties and the district court, however, used the term to describe the enhanced shipping options available to Prime subscribers. We follow suit. USCA11 Case: 21-14317 Document: 54-1 Date Filed: 06/07/2023 Page: 3 of 25

21-14317 Opinion of the Court 3

dismiss the First Amended Complaint for failure to state a claim with prejudice because it found that Amazon did not have a duty to provide unqualified Rapid Delivery to Prime subscribers. After careful review, and with the benefit of oral argument, we affirm. I. Background A. Facts and Contract Terms Prime is a fee-based subscription service. Prime subscribers receive several benefits not available to other Amazon customers, including Rapid Delivery, which is two-hour, same-day, one-day, or two-day shipping at no additional cost for certain Prime-eligible items purchased from Amazon’s online marketplace. From the start of the COVID-19 pandemic in March 2020 to at least May 2020, Amazon suspended Rapid Delivery without notifying Prime members. Plaintiffs alleged that, rather than providing the full benefit of Prime membership to its subscribers, Amazon instead “focused on profits from consumer grocery and pharmacy spending to compete with major pharmacy and grocery chains as well as keep[] up with significantly increased demand.” 2 As Prime subscribers, each plaintiff agreed to identical contracts with Amazon. The con