The Texas Supreme Court is set to determine whether Amazon can be considered a “seller,” and thus held liable, for a defective product sold through its website, in the case of McMillan v. Amazon.com, Inc., No. 20-20108, 2020 WL 7417454, at *1 (5th Cir. Dec. 18, 2020), certified question accepted (Jan. 8, 2021).
Amazon.com Inc. is the nation’s largest online retailer, selling and shipping millions of products every day. With the COVID-19 pandemic altering shopping habits, Amazon has become even more ubiquitous than ever. While many stores and online retailers struggled in 2020, Amazon’s sales skyrocketed 37% to a record $96.2 billion in the third quarter of 2020. But what happens when a product purchased from Amazon harms a customer? Can Amazon be held liable even if it has no role in designing or manufacturing the product? Courts across the country are grappling with this question, which undoubtedly will impact online retailers like Amazon for years to come.
McMillan v. Amazon.com, Inc. involves a young girl who was severely injured after ingesting the batteries from a remote sold on Amazon. The trial court found that Amazon could be held liable for the allegedly defective remote as a seller. Amazon then appealed to the Fifth Circuit, arguing that it was not a seller, but rather only facilitated the sale of the product.
The Fifth Circuit declined to hear arguments on the merits, holding, “[g]iven the dearth of on-point caselaw and the significant potential consequences of holding online marketplaces responsible for third-party sellers’ faulty products, we certify this important question to the only court that can adjudicate it with finality: the Supreme Court of Texas.” The Fifth Circuit certified the following question of state law: “Under Texas products-liability law, is Amazon a ‘seller’ of third-party products...
