Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise
Posted on August 18, 2025 by Expert Witness Profiler
The Federal Trade Commission contended that Amazon tricked, coerced, and manipulated consumers into subscribing to Amazon Prime. According to the FTC, this was accomplished by failing to disclose the material terms of the subscription clearly and conspicuously and by failing to obtain the consumers’ informed consent before enrolling them. The FTC also alleged that Amazon did not provide simple mechanisms for subscribers to cancel their Prime memberships. The FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.
Defendants’ expert James C. Cooper offered opinions on two issues: (1) What a reasonable market participant would have expected, prior to March 2021, was required to comply with Restore Online Shoppers’ Confidence Act (“ROSCA”); and (2) The extent to which the FTC’s allegations in this case are consistent with such reasonable expectations predating March 2021.
The FTC filed a motion to exclude Cooper’s testimony on three grounds. First, it said that his testimony is irrelevant to whether Defendants violated the FTC Act or ROSCA and the availability of civil penalties. Second, it contended that his methodology is unreliable because he applied his case coding technique inconsistently. Third, it asserted that he offers legal conclusions that are inadmissible under Federal Rule of Evidence 702.
Law And Legal Expert Witness
James Campbell Cooper is a law professor at George Mason University’s Antonin Scalia Law School (ASLS). He has a Ph.D. in economics from Emory University. At ASLS, he teaches courses on the digital economy and consumer protection law; the consumer protection law course covers, among other things, the FTC’s authority to regulate deceptive conduct and FTC disclosure requirements.
Discussion by the Court
To generate his opening report, Cooper reviewed complaints and judicial decisions from ROSCA enforcement actions initiated before March 2021, when Amazon received a Civil Investigative Demand from the FTC. He then coded these materials to determine the prevalence of certain allegations in ROSCA enforcement actions. If an element was included in the document, it was coded as a “1” but if an element was not included then it was coded as a “0.” This method purportedly allowed him to calculate the relative frequency of certain allegations and understand the conduct a “reasonable market participant” would expect to violate ROSCA.
Cooper found that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard that represents an unpredictable departure from the standard prior to March 2021 in two ways.” First, he said that the allegations suggested a new standard to “balance” the options to accept or decline an offer to enroll in a subscription service. Second, he said that the FTC’s complaint sets out more stringent standards for clear and conspicuous disclosure, express informed consent, and simple cancellation than a “reasonable market participant” would have expected ROSCA to require. His report also found that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”
Relevance of Cooper’s Testimony
Defendants said that Cooper’s opinions are relevant to the FTC’s request for civil penalties. But the FTC said that Cooper’s opinions are irrelevant to this request because the understanding of a “reasonable market participant” is unrelated to any Defendant’s actual knowledge, which is the relevant question in the civil penalty inquiry. The FTC also contended that Cooper’s opinions are flawed because they were formed on the basis of non-ROSCA guidance.
The Court held that Cooper’s opinions are relevant to the FTC’s request for civil penalties because his report may help the trier of fact determine whether Defendants should have known their actions were unlawful. The FTC argued that Cooper did not offer an opinion on this subject because the relevant implied knowledge inquiry for Amazon is whether “a sophisticated company with virtually unlimited resources and near-constant involvement of in-house and outside counsel should have known.”
And it said, for the individual Defendants, whether “executives in charge of the largest subscription program in the United States, essentially unlimited legal resources, and constant involvement with in-house or outside counsel” should have known. But these arguments that Cooper did not account for the actual circumstances of this case concerned the weight—not admissibility—because they attacked the factual basis of his opinions.
In addition, Cooper’s reliance on non-ROSCA guidance for his opinions did not render them irrelevant. As the FTC’s designated representative recognized in her deposition, non-ROSCA sources provide “guidance relating to clear and conspicuous online disclosures” that are the same as “clear and conspicuous disclosure[s] in the context of ROSCA.”
Reliability of Cooper’s Testimony
The FTC next argued that Cooper’s opinions must be excluded because they are unreliable. It said that Cooper failed to demonstrate how his experience informs his conclusions. It also said that Cooper’s case coding methodology was applied inconsistently because he used a different method to code for “dark patterns” than he used to code for past FTC ROSCA enforcement actions.
The FTC’s first two arguments, that Cooper lacked experience with ROSCA and he did not show how his experience informed his conclusions failed to persuade the Court.
Even though the FTC said that Cooper did not perform any work pertaining to ROSCA while working at the FTC and that he has not written substantively on ROSCA, these arguments merely concerned to the weight of his conclusions. Cooper added that the methodology he employed is common in the field of law and economics.
The FTC’s other argument about reliability, that Cooper applied his coding method inconsistently, also did not persuade the Court. The FTC took issue with Cooper’s methodology because he reviewed and analyzed past FTC ROSCA complaints to code them, but then coded past FTC cases for “dark patterns” based on the explicit use of that term.
The FTC likewise contended that Cooper did not consider consent orders from past FTC ROSCA enforcement actions to code for sub-categories of alleged deficiencies, but he did review consent orders from past FTC ROSCA enforcement actions to code for allegations of fraud.
Defendants explained in response that the FTC has not defined “dark patterns” clearly enough to allow coding by any means other than searching for this explicit term. At his deposition, Cooper explained that he did not consider some information, such as FTC consent orders, because he was coding for the presence of certain allegations made in each case.
Testimony on Legal Conclusions
The FTC maintained that Cooper’s report included four impermissible legal conclusions: (1) that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard”; (2) that “the first departure from prior guidance is the novel theory of liability grounded in the subjective concept of ‘dark patterns'”; (3) that “the FTC employed much more stringent tests for ‘clear & conspicuous disclosure,’ ‘express affirmative consent,’ and ‘simple cancellation’ in this case than in its other ROSCA cases”; and (4) that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”
The FTC did not identify any portion of his report that claimed to interpret ROSCA. Nor did the FTC identify any portion of his report that opines on whether Defendants had knowledge of ROSCA or that Defendants knew or should have known that their actions violated ROSCA. Instead, as Defendants acknowledged, Cooper reviewed, interpreted, and analyzed the FTC’s past ROSCA enforcement actions. He then noted where he believed the FTC departed from its prior guidance. This is not an interpretation of ROSCA. He also concluded that a “reasonable market participant” would have expected to have complied with ROSCA under certain conditions, but he never says that Defendants did not violate ROSCA or that Defendants would not have expected to have complied with ROSCA under these conditions.
The Court found this testimony permissible because an expert is allowed to “discuss industry conditions, standards, and practices” as well as “factual corporate norms.”
Held
The Court denied the Plaintiff FTC’s Rule 702 motion to exclude the testimony of Defendants’ expert James C. Cooper.
Key Takeaway:
Cooper’s report does not go so far as to decide the ultimate legal questions. Instead, it stays within proper bounds by addressing industry conditions, standards, practices, and common corporate norms.
Please refer to the blog previously published about this case:
Marketing Expert Employed Techniques Widely Accepted in Market Research Community
Human Factors Expert’s Testimony on Dark Patterns Excluded
Case Details:
| Case Caption: | Federal Trade Commission V. Amazon.Com, Inc., Et Al. |
| Docket Number: | 2:23cv932 |
| Court Name: | United States District Court, Washington Western |
| Order Date: | August 15, 2025 |
