Digesting an opinion by U.S. Court of Appeals for the Third Circuit Judge Anthony J. Scirica (Judge Scirica had no role in WLF’s selecting or editing this opinion for this publication). Ed. note: The presence of asterisks in this Circulating Opinion reflect our editorial removal of text.

Introduction to the Opinion: In Oberdorf, 2019 WL 2849153 (3d Cir. July 3, 2019), the Third Circuit decided that under Pennsylvania common law, Amazon is the “seller” of products offered by third parties through Amazon Marketplace and, in turn, could be strictly liable for harm caused by a defective dog collar purchased from the marketplace. The court then held that § 230 of the Communications Decency Act (CDA) precluded the plaintiff’s claims over Amazon’s editorial function (i.e., its failure to warn) but not the claims tied to its “direct role in the sales and distribution process.” Judge Scirica concurs with the majority’s CDA holding but dissents from the conclusion that Amazon was a “seller.” His dissent persuasively explains why state law compels a contrary outcome and shows how other jurisdictions’ rulings on this core products-liability question reinforce that view.

SCIRICA, Circuit Judge, concurring in part and dissenting in part.

This case implicates an important yet relatively uncharted area of law. No Pennsylvania court has yet examined the product liability of an online marketplace like Amazon’s for sales made by third parties through its platform. Our task, as a federal court applying state law, is to predict how the Pennsylvania Supreme Court would decide the case. Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 45 (3d Cir. 2009). We must take special care “to apply state law and not … to participate in an effort to change it.” McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir. 1980) (internal citation omitted). In my view, well-settled Pennsylvania products liability law precludes treating Amazon as a “seller” strictly liable for any injuries caused by the defective Furry Gang collar.

The plaintiffs weigh in detail policy reasons for allowing them to sue Amazon. Plaintiffs’ theory would substantially widen what has previously been a narrow exception to the typical rule for identifying products liability defendants sufficiently within the chain of distribution. A “seller” in Pennsylvania is almost always an actor who transfers ownership from itself to the customer, something Amazon does not do for Marketplace sellers like The Furry Gang. For similar reasons, every court to consider the question thus far has found Amazon Marketplace not a “seller” for products liability or other purposes; several of those courts have done so under products liability regimes similar to Pennsylvania’s. For these reasons, I respectfully dissent from the majority’s disposition of the claims not barred by the Communications Decency Act (CDA).