Ninth Circuit Upholds Dismissal Of Antitrust Claims Against Amazon Over Fulfillment Services | A&O Shearman

On March 20, 2025, the Ninth Circuit Court of Appeals affirmed the district court’s dismissal of consumer Plaintiffs’ Sherman Act claims against Defendant Amazon, Inc. (“Amazon”), with prejudice, for lack of antitrust standing. Hogan v. Amazon.com, Inc., No. 24-1893, 2025 WL 1091671 (9th Cir. Mar. 20, 2025). In upholding the trial court’s decision, the Ninth Circuit panel agreed that plaintiffs—consumers who subscribe to Amazon’s “Prime” membership service—did not suffer antitrust injury in the alleged relevant market, namely, the consumer-facing online retail market. Having already twice amended the complaint and failed to plausibly allege antitrust injury, the Circuit Court affirmed the district court’s decision to dismiss the action with prejudice for failure to state a claim.

Plaintiffs are Amazon Prime subscribers who purchase products on Amazon’s website, including products sold by third-party sellers. Plaintiffs claim that Amazon’s requirement that third-party sellers use Amazon’s Fulfillment by Amazon (FBA) service to have their products featured in Amazon’s “Buy Box,” restrains competition in the shipping and logistics industry. According to plaintiffs, this in turn has led to higher costs in the business-facing logistics services market, which third-party sellers then pass on to consumers (like plaintiffs) in the online retail market.

In dismissing the claims, District Court Judge John H. Chun (W.D. Wash.) emphasized that antitrust injury must occur in the market where competition is being restrained. Here, plaintiffs allege they suffered injury in the consumer-facing online retail market from anticompetitive conduct in a business-facing logistics services market.

Plaintiffs sought to rely on the Supreme Court’s 2018 decision in Ohio v. American Express Co. (“Amex”), to claim that “Amazon’s Fulfillment services are a two-sided market” and therefore, the consumer-facing retail and business-facing logistics markets should be treated as a single market for antitrust purposes. 585 U.S. 529, 544–46 (2018) (noting that two-sided transaction platforms that exhibit strong indirect network effects and facilitate a single, simultaneous transaction between participants may be treated as a single market). The court was unpersuaded. In particular, the Ninth Circuit, citing its recent decision in Epic Games, Inc. v. Apple, Inc., observed that Amex “does not stand for the proposition that any two-sided platform will necessarily relate to one market,” 67 F.4th 946, 996 (9th Cir. 2023), and that plaintiffs failed to demonstrate that to treat the two sides of Amazon’s shipping market as one would “reflect[] commercial realities.” (quoting Amex, 585 U.S. at 544) (citation omitted).

After two attempts by plaintiffs to amend their complaint to address these deficiencies, the District Court denied Plaintiffs a third opportunity and dismissed the case with prejudice. The Ninth Circuit affirmed, holding that the complaint “could not be saved,” and District Court Judge Chun acted within his discretion.

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