Almost everyone has bought something online that didn\u2019t turn out to function like we had hoped: a pair of headphones that fell apart in three days, a book stand that turned out to be cumbersome and flimsy, or a crockpot that lasted only 3 batches of chili. Often, we simply take the loss and realize that sometimes when we purchase a product at low price point through an online retailer, we\u2019re taking a risk that the product we\u2019ve purchased did not work as advertised. It\u2019s unfortunately one of those things that becomes increasingly difficult online, as we\u2019re unable to effectively vet what we\u2019re purchasing and who we\u2019re purchasing it from, especially when there\u2019s little information about the manufacturer of the product or when there are few product reviews.<\/p>\n\n\n
It can even be difficult to vet a product when it is purchased on a trusted platform like Amazon, but the product comes from an independent third-party seller on Amazon Marketplace<\/a>. Does that mean Amazon entrusts this product to be of a certain quality, or more importantly, is safe to use? And if a product not made by Amazon is placed on Amazon Marketplace, can Amazon be held liable when a product is dangerous and is being sold on Amazon\u2019s platform? That\u2019s what the 3rd<\/sup> Circuit will need to answer in an upcoming en banc<\/em> review of the recent Oberdorf v. Amazon<\/em> decision<\/a> that has attracted attention due to the widespread impact it could have on e-commerce retailers. In the 3rd<\/sup> Circuit\u2019s original decision, the majority found that a section of a federal law called the Communications Decency Act barred Amazon for liability from a sale of a product on Amazon Marketplace by a third-party seller called The Furry Gang. The plaintiff in Oberdorf<\/em> bought a dog lease that snapped back and blinded them in one eye. <\/p>\n\n\n It\u2019s a perfect case for en banc<\/em>\nreview.Oberdorf involves perhaps the most important company currently\nin America, owned by the world\u2019s richest man, and involves a majority and\ndissent that fundamentally disagree on what Amazon\u2019s role was in the sale of\nthe dog leash. This would satisfy both\ninstances that federal rules consider the two reasons to hear en banc <\/em>appeals: to achieve uniformity in decisions\nand when cases involve something of particular importance.<\/a><\/p>\n\n\n The en banc<\/em> review will focus\nheavily on whether not Amazon was a \u201cseller\u201d in the sale of a product from a\nthird-party seller. Amazon often stores its Marketplace products, and ships it\nto customers, but Amazon had no part in manufacturing the dog leash that\nblinded the plaintiff. The majority and dissent vehemently disagreed<\/a> whether Amazon was a seller of\nthe dog leash for the purposes of the Communications Decency Act. The 2nd<\/sup>\nCircuit chose to, in the dissent\u2019s view, depart from precedent to find that\nAmazon\u2019s conduct in the Marketplace makes them a seller. <\/p>\n\n\n If Amazon is a seller, it cannot use\nthe CDA\u2019s \u201csafe harbor\u201d provision to protect themselves from a suit against\nFurry Gang. The safe harbor provision \u201cintended to allow interactive computer\nservices companies \u2018to perform some editing on user-generated content without\nthereby becoming liable for all defamatory or otherwise unlawful messages that\nthey didn\u2019t edit or delete\u2019\u201d according to the 2nd<\/sup> Circuit. In the\ndissent\u2019s view of the case, that\u2019s exactly what Amazon is doing: they are not\nselling but rather hosting user (Furry Gang) content on Amazon Marketplace and\nshould not be held liable for the actions of Furry Gang. The majority presents\nAmazon\u2019s role as extending far beyond the mere \u201ceditorial\u201d platform of the\nproduct, as it has a far more active role in the sale of items such as Furry\nGang\u2019s dog leash. <\/p>\n\n\n An interpretation of Amazon as a\nseller has large-scale implications for the e-commerce industry at large. An\namicus brief recently filed by the Computer Communications Industry Association\nand Technet raised significant fears about the potential liability for the\ne-commerce industry at large, with growth being the primary concern, as a\nruling here could open the floodgates for other courts to buy the same argument\nabout Amazon and other e-commerce giants that provide similar services as\nAmazon\u2019s marketplace. <\/p>\n\n\n Despite the concern for a flood of\nnew claims against e-commerce giants, there are significant reasons that a\nruling against Amazon feels like the right thing to do. Here, the blinded\nplaintiff would have tried to sue Furry Gang, but Furry Gang has completely\ndisappeared off the face of the map, not selling on Amazon since 2016 and\ntherefore avoiding any blame or lawsuit for what ended up being a terrible\ninjury.<\/p>\n\n\n Given there are good reasons to hold Amazon responsible for injuries caused by products placed on its website, the upcoming appeal looks to be a difficult question worth getting right, invoking consumer rights policy and economic questions that could hamper one of the largest industries in America. Until a clear answer arrives from the 2nd<\/sup> Circuit, Amazon is no doubt holding its breath. <\/p>\n\n\n Andy Tabeling <\/p>\n\n\n November 19, 2019<\/p>\n","protected":false},"excerpt":{"rendered":" Almost everyone has bought something online that didn\u2019t turn out to function like we had hoped: a pair of headphones that fell apart in three days, a book stand that turned out to be cumbersome and flimsy, or a crockpot that lasted only 3 batches of chili. Often, we simply take the loss and …<\/a><\/p>\n","protected":false},"author":1,"featured_media":6531,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6483"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=6483"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6483\/revisions"}],"predecessor-version":[{"id":6788,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6483\/revisions\/6788"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/6531"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=6483"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=6483"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=6483"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}