California continues to lead the way in holding online marketplaces accountable

By Casey Gerry July 01, 2021

On June 25, 2021, in, Inc. v. McMillan, No. 20-0979, 2021 WL 2605885  (Tex. June 25, 2021), the Texas Supreme Court held that under Texas law, Amazon couldn’t be held liable as the “seller” of a defective product. The Texas Supreme Court was addressing a question certified to it by the Fifth Circuit and reversed a district court decision denying Amazon summary judgment.

McMillan, which I have written about before, involved a defective remote control that badly injured a small child. As it has in nearly every product liability case against it, Amazon argued it couldn’t be held liable because it wasn’t the “seller” of the remote. The Texas Supreme Court agreed, and the Fifth Circuit then directed the district court to grant Amazon summary judgment.

The Texas court’s holding was based on the peculiarities of Texas’s product liability statutes, which we don’t need to be discussed here. What was notable, though, was the court’s refusal to discuss—or really even acknowledge—the public policy considerations  that underlie online marketplace liability or the real-world consequences of its decision.

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