Amazon CEO Letter 'Misleading,' Says Shareholder Suit Against Board Members
Amazon CEO Andy Jassy’s statements in an April 14 shareholder letter about the company’s “aggressive expansion efforts” to build out its fulfillment network to meet increasing demand for faster delivery were “materially false and misleading,” alleged shareholder and Pennsylvania resident Jay Smith in a complaint Wednesday (docket 1:23-cv-00196). The suit, filed in U.S. District Court for Delaware in Wilmington, named the company and 19 of its executives and/or board members who made statements on earnings calls and congressional testimony or signed SEC financial documents.
Defendants include Jassy, Amazon Executive Chairman Jeff Bezos, Chief Financial Officer Brian Olsavsky, Vice President-Investor Relations Dave Fildes and current and past board members: Corning CEO Wendell Weeks, former MTV Networks CEO Judith McGrath, former PepsiCo CEO Indra Nooyi, and Daniel Huttenlocher, dean of MIT’s Schwarzman College of Computing. Defendant Rosalind Brewer, CEO of Walgreens Boots Alliance, is no longer on the Amazon board.
By telling shareholders Amazon helped independent sellers compete against its first-party business, the defendants failed to disclose that “Amazon routinely retaliated against its third-party sellers -- and used the threat of retaliation -- through a myriad of anticompetitive, discriminatory, and abusive tactics,” alleged the complaint. Tactics included “abruptly suspending” sellers’ accounts, destocking their products, removing “buy” or “pre-order” buttons to block purchases and “falsely listing their products as ‘out of stock,’” it said. Amazon sold sellers’ products for lower prices “and demanded that they pay Amazon for the lost margin," alleged the plaintiff.
Jassy’s statements in the letter failed to disclose that Amazon “routinely used third-party sellers’ data to directly compete with those businesses” on its platform, said the complaint. The company “routinely misappropriated third-party sellers’ data” and used it to “copy their products by creating competing (Amazon) products, source those products from third-party sellers’ own manufacturers, and cut them out of the equation,” it said. The company is facing “significant regulatory inquiries” over those practices, it noted.
Amazon favored its own private-label products to the detriment of third-party sellers, and during the COVID-19 pandemic it “discriminatorily” designated third-parties’ products as “nonessential,” while designating its own similar products as “essential,” the complaint said. Defendants’ statements failed to disclose that Amazon tied and bundled its paid fulfillment and logistics services, requiring sellers to use them to list their products; it awarded the “Buy Box” to sellers who used Amazon fulfillment, it said.
Amazon’s “breaches of fiduciary duties” spawned numerous investigations and litigation, the complaint noted, citing a DOJ criminal investigation and an SEC probe into its public disclosures about its business practices. The plaintiff referenced “significant damages” Amazon suffered due to the SEC action, consumer class actions, private arbitrations resulting from violations of state biometric privacy laws and antitrust actions.
Smith claims breach of fiduciary duty and unjust enrichment. He seeks an order directing Amazon to take all necessary actions to “comply with applicable laws” and to protect the company and its stockholders from repeating damaging events. That could include putting forward for stockholder vote resolutions or amendments to the company’s bylaws or articles of incorporation, putting before stockholders a proposal to strengthen the board’s supervision of operations and implementing procedures for greater stockholder input, it said.
The plaintiff also seeks awards of restitution to Amazon from the individual defendants and an order of disgorgement of all profits, benefits and other compensation obtained by the defendants. He seeks an award of legal costs, including attorneys’ fees, accountants’ and experts’ fees, plus expenses. Amazon didn’t comment Friday.