3d Cir: Amazon Is a Seller of Goods Through Website, Even if Owned by 3rd Parties; CDA Not Applicable Except as to Failure to Warn

In Oberdorf v. Amazon.com, Inc., the Third Circuit held that Amazon was a "seller" for purposes of Pennsylvania state law when it sold items on its website through Amazon Marketplace.  Amazon Marketplace connects buyers to third-party sellers on Amazon's website.  Amazon does not own the goods and in many cases does not deliver them.  After determining Amazon to be a seller, the court further held that section 230 of the Communications Decency Act of 1996 only shields Amazon from failure to warn claims.  Section 230 states:  "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  The Third Circuit panel unanimously held that this provision would immunize Amazon from failure to warn claims because the warnings or lack thereof were provided by a third party.  No immunity would be available, however, for non-speech-related claims such as manufacturing or design defects. 

The holding that Amazon is a seller is unusual, perhaps even novel.  A recent Fourth Circuit case, based on Maryland law, came to the opposite conclusion.  In the "flaming headlamp" case, reported on here, the Fourth Circuit affirmed the district court's finding that Amazon was not a seller under nearly identical circumstances.  In a recent related case, Herrick v. Grindr, reported on here, the Second Circuit concluded that section 230 of the CDA did protect Grindr from claims brought when an angry ex-boyfriend allegedly created fake profiles that induced numerous men to come to plaintiff's home and work demanding sex.

Andrew Keshner of MarketWatch has a piece on the Third Circuit case, with a focus on the CDA holding here.