McCarthy v. Amazon

Question Presented

Whether Amazon, the world’s largest online retailer, can be sued under product liability for selling sodium nitrite to minors who used the compound to commit suicide.

Background

Product liability is an equitable legal doctrine that permits plaintiffs injured by a defective product to sue its manufacturers, distributors, suppliers, and retailers. Under Washington’s product liability law, which the court applies in this case, a retailer is liable for injuries caused by a defective product if the injuries occurred because the retailer was negligent, breached some warranty to the plaintiff, or intentionally misrepresented the product.

Since its inception under English contract law centuries ago, product liability has evolved multiple times to protect consumers from harms that come along with technological and corporate innovations. Today, many courts approach product liability through the lens of deterrence: by shifting liability for product harms to the entity in the best position to cost-effectively prevent them, courts can ensure that nobody ignores the social costs of harmful products. In practice, this means that courts are often forced to determine which entity is in the best position to prevent a product harm: the manufacturer, the distributor, the seller, or even the buyer.

In recent years, several cases have emerged seeking to hold Amazon and other large e-commerce companies liable for harmful products sold on their websites. In many of these cases, judges have disagreed over whether online retailers have the necessary knowledge of and control over the products they sell to establish product liability. And because product liability is governed by each state’s laws, there is still widespread disagreement over who should be liable for the growing number of harmful products sold online: the product manufacturers or online retailers.

The Case

The Plaintiffs in this case are the families of two minors who committed suicide using a highly concentrated form of sodium nitrite sold on Amazon’s website. They allege that Amazon was at fault for the minors’ deaths by failing to warn users of the dangers of sodium nitrite or remove sodium nitrite product listings from its website. For example, they claim that Amazon continued to sell the compound to private households without additional warnings after regulators warned Amazon that sodium nitrite had no household use and parents warned Amazon of minors’ deaths. Because Amazon knew the dangers of sodium nitrite and the risk that minors would die from ingesting it, Plaintiffs argue that Amazon, as a seller of sodium nitrite, had a duty to take reasonable steps to prevent harmful uses of sodium nitrite under Washington’s product liability law.

The Defendant, Amazon, seeks to dismiss the case, arguing among other things that it has no duty to warn users of the danger of ingesting sodium nitrite and that its decision not to warn users or remove sodium nitrite product listings did not lead to the deaths of Plaintiffs’ children. According to the Defendant, because the danger of sodium nitrite is obvious and minors sought it out to commit suicide, Amazon did not need to take any steps to prevent the sale of sodium nitrite or its ingestion by minors.

Evaluating these arguments, the district court largely agreed with Amazon and issued an order dismissing Plaintiff’s case in full. Drawing heavily on the text of Washington’s product liability law, the court held that sodium nitrite was not defective and therefore Amazon had no duty to warn users or otherwise restrict the sale of sodium nitrite to minors; it largely ignored deterrence-based arguments that Amazon was in the best position to prevent the minors’ deaths given its knowledge of and control over the sale of sodium nitrite to minors. Plaintiffs appealed to the Ninth Circuit.

EPIC’s Brief

EPIC’s brief supports the Plaintiffs’ arguments, arguing that they should be heard on their merits because Amazon, as the retailer for sodium nitrite, was in the best position to prevent the minors’ deaths but chose to do nothing. The brief explains that product liability is meant to deter product defects by placing liability on the entity in the best position to prevent or mitigate product harms. EPIC’s brief details the wide array of manipulative data practices, design choices, and product control features that Amazon exploits to understand exactly who is on its website and influence what and how much they buy. These same policies and practices place Amazon in the unique position of knowing exactly when a minor purchases a dangerous compound and having the ability to prevent harm rapidly and cost-effectively through warnings, product removals, and other safety-reinforcing design features. Amazon is the exact type of entity that product liability was designed to target.

EPIC’s brief starts with a granular account of Amazon’s vast data collection practices. By surveilling users on its website and devices, collecting user information from other websites, and purchasing data from third-party brokers, Amazon profiles its users to a remarkable degree: it knows users’ demographics, relatives, search and purchase histories, and viewing behaviors. Through the collection of “clickstream data,” Amazon tracks what sites users visit and which links they click. And by compiling and analyzing all this data, Amazon can produce strong inferences about who a person is and how they behave. Amazon further exploits its intimate knowledge of users to manipulate their behavior across its website via targeted recommendations and deceptive design techniques known as “dark patterns”—often in ways that exacerbate product harms. For example, Amazon promoted a suicide manual as a product “frequently bought together” with sodium nitrite. Because of these data and design practices, Amazon is not a neutral player in this case: it actively facilitates and promotes the dangerous qualities of sodium nitrite, even when it knows the user is visiting its site from an online suicide forum.

EPIC’s brief then explains that, through Amazon’s own product safety standards and past behavior, the online retailer has shown that it regularly restricts the sale of unsafe products on its website, including by removing product listings altogether. Amazon’s own restricted products policy prohibits the sale of “illegal, unsafe, or other restricted products,” including drugs, weapons, hazardous items, and “products intended to be used to produce an illegal product or undertake an illegal activity.” And when journalists exposed the sale of dangerous products on its platform in previous years, Amazon responded within hours by removing thousands of product listings.

Together, Amazon’s exploitative data practices, design patterns, and past product safety practices make it clear that Amazon is the entity best positioned to prevent product harms like the ones that Plaintiffs allege. For these reasons, EPIC urges the Ninth Circuit to reverse the district court’s decision and permit Plaintiffs to make their case against Amazon.

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