Judge Robert S. Lasnik, of the Western District of Washington, granted in part, a motion for class certification where plaintiffs alleged that Amazon’s Alexa devices intentionally recorded and stored voice interactions, including so-called “false wakes” (when the device activates and records without a wake word), without sufficient notice to users or non-registrants in the household. The claims were brought under six states’ wiretap laws (including CIPA) and Washington’s Consumer Protection Act (CPA).
Addressing injury in fact:
The Ninth Circuit has clarified that in class actions seeking injunctive or other equitable relief, only one plaintiff is required to demonstrate standing. Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 31 F.4th 651, 682 n. 32 (9th Cir. 2022). If the class seeks damages, however, all members must have Article III standing. TransUnion, 594 U.S. at 431;
Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 594 (9th Cir. 2012). While it is clear that federal courts lack the power to grant relief to a plaintiff who suffered no injury, the Supreme Court has not yet addressed “the distinct question whether every class member must demonstrate standing before a court certifies a class.” TransUnion, 594 U.S. at 431 n.4 (emphasis in original) (citing Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1277 (11th Cir. 2019)). In Cordoba, the Eleventh Circuit held that, although a district court need not separate out uninjured class members before granting class certification (and may instead wait until a later stage of the proceeding to determine which class members have suffered a redressable injury), if it appears that a large portion of the class might not have standing, the court must consider under Rule 23(b)(3) whether the individualized standing issues will predominate over the common issues in the case prior to certification. 942 F.3d at 1276–77. The Ninth Circuit agrees, rejecting the argument that a class cannot be certified if it includes more than a de minimis number of uninjured class members in favor of a “rigorous analysis whether the common question predominates over any individual questions, including individualized questions about injury or entitlement to damages.” Olean, 31 F.4th at 669.
Court’s Ruling on Class Certification
1. Registrant Classes Certified for Damages and Injunctive Relief
The court certified a nationwide class of Alexa device registrants under Rule 23(b)(2) for injunctive relief and under Rule 23(b)(3) for damages. The court found that common questions—such as whether Amazon adequately disclosed its recording and data use practices, and whether such practices were unfair or deceptive—predominate over individual issues for registrants. The court also determined that class action treatment is superior to individual litigation, given the large number of affected consumers and the uniformity of Amazon’s alleged conduct.
2. Non-Registrant Classes Denied Certification for Damages
The court denied certification of the six state-specific non-registrant classes seeking damages.
Addressing the ability to identify class members:
With regards to the non-registrant class, defendants argue that there is no way to identify all persons within a given state who never registered an Alexa device but who resided with a registrant while an Alexa device was active and operational. This issue is less about predominance and more about manageability. See Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1126-28 (9th Cir. 2017); Wetzel v. CertainTeed Corp., No. C16-1160JLR, 2019 WL 3976204, at *19 (W.D. Wash. Mar. 25, 2019). The class definition sets forth objective criteria that allows the parties and the Court to recognize any given class member and to evaluate the viability of the claims asserted on their behalf. Whether the absence of a database containing all non-registrants’ names or the related difficulties in providing class notice makes representative litigation unmanageable is an issue to be considered when determining superiority.
…
Defendants argue that non-registrants may be bound by Amazon’s terms and conditions through an agency or estoppel theory, a determination that can be made only after individualized discovery and fact-finding. With regards to agency, defendants assert that non-registrant spouses, children, and roommates (the purported principals) may have authorized the registrants with whom they lived to register an Alexa device and enter into the terms and conditions on their behalf.
…
There is evidence in the record that could support a finding that Michael McNealy, the representative of the proposed class of non-registrants who are pursuing a wiretap claim under New Hampshire law, authorized his wife to register an Alexa device in his name. Dkt. # 294-2 at 75-77. Mr. McNealy may, in fact, be a registrant (although there is some ambiguity in his discovery responses). While that exact scenario may be rare, the possibility of a joint purchase of an Alexa device with one spouse registering the device on behalf and with full knowledge of both partners is not. “Authorization occurs when one spouse, prior to the initiation of a transaction, indicates his willingness to allow the other to enter into a transaction.” Nichols Hills Bank v. McCool, 104 Wn.2d 78, 83 (1985). While defendants would have the burden of establishing the existence of an agency relationship at trial, the issue will undoubtedly engender discovery aimed at absent class members and, where appropriate, individualized fact-finding.
The decision was based on the predominance of individualized issues, including:
- Whether non-registrants consented to recordings (expressly, impliedly, or through agency/estoppel).
The wiretap statutes of California, Florida, Maryland, New Hampshire, Pennsylvania, and Washington require that plaintiffs prove that their private conversation was intercepted without their consent.
…
registering an Alexa device is not the only way a consumer consents to the recordings, so merely looking at whether an individual has registered an Alexa device does not answer the consent question. That defendants will not have to undertake extensive discovery to identify putative non-registrants who have nevertheless consented does not change the fact that the inquiry is individualized and must be resolved before either liability or damages can be adjudicated.
- Whether each recording constituted a “private conversation” under state law.
The wiretap statutes of Washington and Maryland prohibit the interception of “conversations.” RCW 9.73.030; Md. Code Cts. & Jud. Proc. § 10-401(13).
…
Defendants’ assertion that, amongst all the recordings it has transcribed, maintained, and used, a few of them are unintelligible does not invalidate any named plaintiff’s claim. At most, individualized proof that certain recordings did not capture conversations might impact the calculation of the per violation damages for the Washington and Maryland classes, but the need for some individualized damage calculations does not outweigh the common issues identified by plaintiffs.
- Whether each non-registrant had a reasonable expectation of privacy.
- The number of actionable recordings per class member, which is necessary to calculate statutory damages.
The court found that these individualized inquiries would overwhelm common issues, making class treatment unmanageable and inappropriate for non-registrants.
KAELI GARNER, et al., Plaintiffs, v. AMAZON.COM, INC., et al., Defendants., No. 2:21-CV-00750-RSL, 2025 WL 1911088 (W.D. Wash. July 7, 2025).
