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14 Brook. J. Corp. Fin. & Com. L. 259 (2019-2020)
The Heavy Hand of Amazon: A Seller Not a Neutral Platform

handle is hein.journals/broojcfc14 and id is 273 raw text is: THE HEAVY HAND OF AMAZON: A SELLER NOT A NEUTRAL PLATFORM EdwardJ.Janger* &Aaron D. Twerski* ABSTRACT Since the adoption of'Section 402A of the Second Restatement of Torts, every party in a product's distribution chain has been potentially liable Jbr injuries caused by product defects. Consumers who buy from reputable sellers are almost always guaranteed to have a solvent defendant if injured by a product defect. Amazon, though responsiblefor a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutralplatfbrm that merely ficilitates third-party sales to consumers. With two significant exceptions, most courts have sided with Amazon and concluded that Amazon is not a seller under Section 402A. These courts have left injured consumers without a remedy against insolvent orfly by night third-party sellers. All of the decided cases have failed to examine the nuances and complexity of how Amazon does business. This Article puts the lie to Amazon's claim that it is not a seller by demonstrating how Amazon controls third-party sales and hides its true rolefrom consumers. INTRODUCTION Since the adoption of Section 402A of the Second Restatement of Torts, in 1965, every party in a product's distribution chain has been potentially liable for product defects.' The fundamental principle is that a manufacturer should bear the cost of the defective products it produces. That failing, the parties that put the product into the consumer marketplace should bear responsibility for their role in the sale. In some states, non-manufacturers are excused from liability, but only if the manufacturer is solvent and subject to the jurisdiction of the court (and even then, the seller is liable if negligent). * David M. Barse Professor of Law, and Associate Dean for Research and Scholarship, Brooklyn Law School. ** Irwin and Jill Cohen Professor of Law, Brooklyn Law School. The authors would like to thank Nicholas Cunha for his able research assistance. Mistakes are, of course, ours alone. 1. RESTATEMENT (SECOND) OF TORTS § 402A cmt. c (AM. LAW INST. 1965). Comment c imposes strict liability for any seller of a defective product. Id Liability for non-manufacturing sellers is specifically covered in comment e and the reporter's note of Section 1 of the Restatement (Third) of Torts: Products Liability. See RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. §I cmt. e (AM. LAW INST. 1998); RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § Ireporter's note at 12. (AM. LAW INST. 1998). 2. Legislation providing for immunity from strict liability for non-manufacturers was first proposedby the Model Uniform Product Liability Act §105, 44 Fed. Reg. 6200714 (1979). Many states have adopted the proposal that conditions immunity from strict liability on the ability ofthe plaintiff to attain jurisdiction over the manufacturer and the solvency of the manufacturer, with a small number ofexceptions. For a list ofstates see RESTATEMENT (THIRD)OF TORTS: PRODS. LIAB. RESTATEMENT §1 reporter's note at 13. See also JAMES A. HENDERSON, JR., AARON D. TWERSKI & DOUGLAS A. KYSAR, PRODUCTS LIABILITY: PROBLEMS AND PROCESS, 57-58 (8th ed. 2016).

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