In Oberdorf v. Amazon https://www2.ca3.uscourts.gov/opinarch/181041p.pdf, plaintiffs sued Amazon after the d-ring on a dog collar bought on Amazon failed, resulting in the retractable leash attached thereto recoiling back and hitting plaintiff in the face, permanently blinding her in one eye. The 3rd circuit court of appeals reversed the district court and held that Amazon can be held liable under Pennsylvania’s strict liability law, rejecting Amazon’s argument that Amazon is not a “seller” but instead, merely the provider of an online marketplace for products sold by others. The decision hinged not only on the extensive control Amazon exerts over their third party sellers, but also referenced several times that neither plaintiff nor Amazon had been able to locate the particular third party seller in question.
The case is designated precedential, and Amazon has, of course, filed a petition for a rehearing, en banc.
The holding that Amazon acts as a “seller” has potentially disastrous ramifications if subsequent courts rely on this analysis to support a similar holding in infringement actions. In contrast, in the nonprecedential opinion Milo & Gabby v. Amazon http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-1290.Opinion.5-22-2017.1.PDF, decided May 23, 2017, the Federal Circuit held otherwise. Unfortunately, Plaintiffs-Appellants made several litigation errors – most notably arguing that Amazon was a “seller” on appeal, rather than liable for “offering to sell” the allegedly infringing product as argued at the district court proceeding – that render this decision less than illustrative on the issue.
This case raises a question of motivation for me. I wonder if Amazon started their infringement reporting/suspension effort https://sellercentral.amazon.com/gp/help/external/201361070 in response to/anticipation of this holding which issued on July 3, based on the oral arguments made in the fall of 2018. However, if Amazon was concerned about liability, one wonders why they would provide any sort of a mediated process at all, as well as whether the process will be heavily and conservatively skewed toward removing products rather than finding them non-infringing.