In New York Law Journal, Professors Janger and Twerski Say Amazon Must Clarify its Role and Liability

In a Commentary article appearing in the Sept. 13 edition of the New York Law Journal, Professors Edward Janger and Aaron Twerski argue that Amazon, the world's second-largest retailer, must clarify its role—and potential liability—in the sale of goods on its site. They posit that court decisions that won't hold Amazon liable for injuries inflicted by products purchased off its site (but are technically "sold" by third parties) are unfair and hurt consumers, and that Amazon should not get to have it both ways—to be regarded as a retailer or as a market platform depending on how it suits them.

Citing the caption of a famous New Yorker cartoon, “On the Internet, nobody knows you’re a dog,” Janger and Twerski explained that in e-commerce identity matters, “and in e-commerce, nobody is bigger than Amazon.” Just the second company in history to achieve a trillion-dollar valuation, Amazon boasts more than 300 million customers, yet, Janger and Twerski note, it is not always clear who the customer is dealing with when making purchases on its platform.

“[Knowing who are you dealing with when you buy goods on Amazon] is important because Amazon sells a lot of things; some explode, causing serious injury,” they wrote. “Recent examples of products causing injuries include cellphone chargers, electronic cigarettes, and hoverboards. Yet, courts have consistently left consumers who purchase such items through Amazon without a remedy.”

Citing Oberdorf v. Amazon, the case in which Heather Oberdorf purchased a retractable dog leash on the Amazon website and then claimed that the leash malfunctioned and struck her in the eye causing permanent injury, Janger and Twerski highlighted how online consumers can be left utterly without recourse when there are problems. Courts sided with Amazon, which said it had merely facilitated the transaction for a firm called The Furry Gang, now nowhere to be found. Further, said Janger and Twerski, Amazon was protected by Section 230 of the Communications Decency Act that insulates Internet platforms from liability for statements of third-party content providers: “Brick-and-mortar merchants are answerable to their customers; Amazon, apparently, is not. In the modern e-commerce environment, this distinction is untenable and, in Amazon’s case, misleading.”

Janger, the David M. Barse Professor of Law and co-director of the Law School’s Center for the Study of Business Law & Regulation, teaches and writes in the areas of bankruptcy law, commercial law, consumer credit, and data privacy. He is the past chair of the Association of American Law Schools’ Section on Commercial and Consumer Law, and a member of the American College of Bankruptcy, the International Insolvency Institute and the American Law Institute. He has also served as consultant to the Business Bankruptcy Subcommittee of the Federal Bankruptcy Rules Advisory Committee.

Twerski, the Irwin and Jill Cohen Professor of Law, is one of the preeminent authorities in the areas of products liability and tort law, having literally "written the book" on the subject. He was co-reporter for the American Law Institute's Restatement of the Law (Third) Torts: Products Liability, and is the author of the leading textbook Products Liability: Problems and Process. He also was appointed special master in the federal 9/11 cases dealing with the injuries claimed by those involved in the clean-up of the World Trade Center site.

Read the column here.