The Heavy Hand of Amazon: A Seller Not a Neutral Platform

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 for 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 responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates 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 or fly 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 role from consumers.