Last July, WLF released a digested version of Third Circuit Judge Anthony J. Scirica’s dissent from Oberdorf v. Inc. in its “Circulating Opinion” publication format. The Oberdorf majority decided in its July 3, 2019 opinion 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.

In dissent, Judge Scirica noted that the product liability issue at the lawsuit’s core was a “relatively uncharted area of law” in Pennsylvania. The court thus had to predict what the Pennsylvania Supreme Court would rule were it faced with the question in Oberdorf. Judge Scirica reasoned that Pennsylvania product liability law does not categorize as a “seller” entities that act in the manner Amazon does when allowing third-party sales on its platform. He also examined relevant decisions from other jurisdictions and concluded that “[t]hese sources, including two federal appellate decisions so far, confirm what Pennsylvania law already makes clear. Amazon’s role in assisting a product’s sale does not make it that product’s ‘seller.'”

As a June 12 law-firm alert from Duane Morris LLP reports, the Pennsylvania Supreme Court now has an opportunity to address the question in Oberdorft itself. The Third Circuit had granted Amazon’s request for en banc review and the court heard oral argument on February 19. Fast forward to June 2, when the en banc court formally certified a question of law to the Pennsylvania justices. The nine-page petition relates that the Third Circuit has been “unable to predict, based on existing case law, if, and how the Pennsylvania Supreme Court would apply [Restatement (Second) of Torts] § 402A to e-commerce businesses like Amazon.”

Duane Morris attorneys Alyson Walker Lotman and Leah Mintz explain what the Third Circuit has asked the state court:

“[T]he Third Circuit asked the Supreme Court to explain whether Pennsylvania’s strict liability law requires only an analysis of the four factors in Francioni, like the panel majority held, or first requires a threshold determination that Amazon was in the business of selling the kind of product at issue, as Judge Scirica opined. And if Judge Scirica was correct, the Third Circuit requested further clarification from the Supreme Court about how to analyze that threshold question. The Third Circuit therefore certified the following question to the Pennsylvania Supreme Court, stating that it is an issue of first impression and substantial public importance:

‘Under Pennsylvania law, is an e-commerce business, like Amazon, strictly liable for a defective product that was purchased on its platform from a third-party vendor, which product was neither possessed nor owned by the e-commerce business?'”

The Pennsylvania Supreme Court has acknowledge receiving the Third Circuit’s petition. The court’s Chief Justice will prepare a memo on the case and recommending a grant or denial of the petition. The full court then votes, normally within 60 days of receiving the certified question, on whether to grant.