Bloomberg Law
Feb. 20, 2020, 9:03 PM

Amazon ‘Seller’ Issue May Get Punted to Pennsylvania High Court

Martina Barash
Martina Barash
Reporter Inc.'s potential status as a “seller” subject to product liability claims for web marketplace sales under Pennsylvania law may be best suited for the state’s top court, Third Circuit judges suggested at oral argument in a closely watched injury case.

Several reasons, including a bill pending in the state legislature, support giving the state top court at least the option of deciding the issue, members of the en banc panel said.

“This one is factually outside” previous state cases addressing the seller-liability issue, one judge said. “We say it’s like an auctioneer or truck lessor, but Amazon’s really different from that.”

Heather Oberdorf alleges the D-ring on her dog’s collar broke when the dog lunged, causing a retractable leash to spring back and blind her in one eye.

Members of the panel asked the attorneys about various liability-related factors given in prior Pennsylvania decisions, including those related to how a company is determined to be a “seller.”

But they kept returning to the idea of certifying critical questions to the Pennsylvania Supreme Court.

“We would welcome certification,” said Oberdorf’s attorney, David F. Wilk of Lepley, Engelman, Yaw & Wilk LLC.

But he also said in answer to a question that the Restatement (Second) of Torts, Section 402A, the legal guidelines used for product liability claims in Pennsylvania, provide enough direction for the U.S. Court of Appeals for the Third Circuit to decide the question on its own.

Some judges suggested that a trip to the state’s high court might favor Oberdorf and her husband, or plaintiffs generally. It only takes one lower Pennsylvania court to say the Third Circuit got the state-law question wrong, but an opinion by the Pennsylvania Supreme Court would be definitive and binding, one judge said.

Amazon opposes certification, William B. Murphy of Perkins Coie LLP told the panel. The case doesn’t meet the criteria, including the need for prompt resolution, he said. And the downside would be a waste of time if the state high court declines to take the case.

One questioner, however, pointed to Amazon’s brief, in which it said the federal court doesn’t have the authority to “expand” Pennsylvania law. “Yet you’re saying we can’t send it to the court that does have authority?” the judge asked.

But the state high court itself has said such policy matters are for the legislature, Murphy said.

Wilk, in final comments, said a ruling for his clients wouldn’t be an expansion of the law. It would be applying existing law “to a different entity that wasn’t previously considered,” he said.

In a brief filed prior to the argument, Amazon said that, under Pennsylvania law, a seller must “supply” the item in question. And that involves selecting the product, which Amazon says it never does when it comes to marketplace sales.

But Wilk, in his opening statement, highlighted the Pennsylvania factors for applying the Second Restatement, which include asking which members of the marketing chain are available for redress, and whether the defendant is “in a better position than the consumer to prevent the circulation of defective products.”

Those factors, he said, favor finding Amazon a seller.

The case is Oberdorf v. Inc., 3d Cir. en banc, No. 18-1041, oral argument 2/19/20.

To contact the reporter on this story: Martina Barash in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Steven Patrick at