Pickard v. Amazon.com Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

ANGELA PICKARD, ET AL CIVIL DOCKET NO. 5:20-cv-01448

VERSUS JUDGE DAVID C. JOSEPH

AMAZON.COM, INC., ET AL MAGISTRATE JUDGE KAYLA D.

MCCLUSKY

MEMORANDUM RULING

Before the Court is a MOTION FOR SUMMARY JUDGMENT (the “Motion”) [Doc.

109] filed by Amazon.com, Inc. (hereinafter, “Amazon”).1 Plaintiffs, the children of

decedent Archie Pickard,2 oppose the Motion, [Doc. 112], and Amazon filed a Reply

brief. [Doc. 117]. For the following reasons, Amazon’s Motion is GRANTED IN PART

and DENIED IN PART.

FACTUAL BACKGROUND

This lawsuit arises out of the death of Archie Pickard after a lithium-ion

battery charger he purchased on Amazon’s website caught fire in his home,

destroying the house and causing fatal burns to Mr. Pickard. On December 15, 2019,

Mr. Pickard purchased a “18650 Rechargeable Li-ion Battery Charger 4 Slot

Universal Smart Li-ion Battery Charger” on Amazon’s website. [Doc. 17]. At the

1 Per Plaintiffs’ First Amended Complaint filed on December 21, 2020, [Doc. 13], the

following Defendants have been terminated: Amazon.com, LLC; Amazon.com Services LLC,

Amazon.com Services LLC, formerly known as Amazon.com Services, Inc., Amazon.com

Services, Inc., Amazon.com Services, Inc., formerly known as Amazon Fulfillment Services,

Inc., Amazon Fulfillment Services, Inc., and Amazon.com Sales, Inc.

2 The Plaintiffs in this matter are Angela Pickard, Individually and as Executor of the

Estate of Archie Pickard, deceased; Dustin Pickard; Wendy Elmore; Joni Thompson; and

Wayne Pickard (hereinafter, “Plaintiffs”).

time of the purchase, a small notation beneath the Amazon product listing stated that

the charger was “sold by” a third-party company named “Jisell,” a foreign

manufacturer based in Shang Hai, China.3 [Doc. 17, ¶ 29].

Products sold on Amazon’s website – www.amazon.com – include: (i) products

sold by Amazon as the retailer, and (ii) products sold by over a million “third-party

sellers.” See [Doc. 109-11, ¶ 6, Affidavit of Andy Sachs, Amazon Senior Manager of

Risk & Policy]. The responsibilities of these third-party sellers include, inter alia,

setting their own prices and describing their own products. But to list products on

the Amazon website, third-party sellers must create a seller account and agree to the

terms of the Amazon Services Business Solutions Agreement (“BSA”). Id. at ¶ 8. The

BSA requires third-party sellers to provide information regarding their products,

including description, price, and any required labels and warnings. Id. at ¶ 10(b).

The BSA also requires that third-party sellers accept responsibility for importing and

ensuring that their products are properly packaged and comport with all applicable

laws. Id. at ¶ 10(d)(f).

As required to list its products on Amazon, Jisell had previously agreed to

Amazon’s BSA. Id. at ¶ 8. Similarly, as a condition of using the Amazon website to

make a purchase, Amazon required Mr. Pickard to agree to its Conditions of Use,

3 “According to the ‘Detailed Seller Information’ on Amazon’s website, Jisell is the

fictious or ‘friendly’ name for “Shang Hai Ji Xiao Dian Zi Ke Ji You Xian Gong Si,” a Chinese

company whose business address is Feng Xian Qu Hai Wan Zhen Wu Si Gong Lu, 4399 Hao

37 Dong 107, Shang Hai 201499.” [Doc. 17, ¶ 29]. However, there appears to be a factual

dispute regarding whether Jisell, or another company Chinese company, Guangzhou

Shangtuomaoyi Co. Ltd., actually manufactured the subject battery charger. [Doc. 109-11,

p.3, n.1]. For purposes of ruling on this Motion, the Court assumes that Jisell manufactured

the battery charger as has been alleged in Plaintiffs’ Complaint. [Doc. 17].

wherein Amazon declares that the only “warranty” covering consumer purchases

from a third-party seller comes from that third-party seller. [Doc. 109-14, pp. 5-6].

Amazon organizes products on its website by specialized numbers called

Amazon Standard Identification Numbers (“ASIN”). [Doc. 109-11, ¶ 5(a)]. The

product listing for the battery charger purchased by Mr. Pickard included the ASIN

for that product: ASIN B07PGTHXCT. Id. Amazon also maintains a Product Safety

Team that monitors customer reviews and other data sources to identify potential

product safety issues. See [Doc. 109-15, ¶ 5, Declaration of John Horn, Amazon

Manager, Safety Controls, Product Safety and Compliance]. At its discretion, the

Product Safety Team can remove products that may pose safety issues. Id.

In addition to its use of Amazon’s website and payment system to sell its

products, Jisell also utilized Amazon’s optional Fulfillment by Amazon (“FBA”)

storage and logistics services to fulfill Mr. Pickard’s order. [Doc. 109-11, ¶ 15].

Amazon’s FBA program allows third-party sellers to send inventory to Amazon’s

fulfillment centers for storage and subsequent delivery. Id. Under the FBA program,

when a consumer places an order for a third-party seller’s product, Amazon retrieves

the pre-packaged product from its warehouse, places the product in a shipping

container or applies a shipping label to the product’s box, and delivers or arranges

delivery of the product to the buyer. Id. Thus, under the FBA program, a third-party

seller merely provides a product, a product description, and a price to Amazon.

Amazon then provides its website platform and marketing, physically stores the

product in its warehouses, receives payment on behalf of the third-party, and

ultimately delivers possession of the product to customers. In exchange for its

services to the third-party seller, Amazon receives a service fee. Id. at ¶ 18. Although

the Jisell battery charger was stored at an Amazon fulfillment center, Jisell never

transferred ownership of the battery charger to Amazon. Id. at ¶ 17.

Prior to the sale of the battery charger to Mr. Pickard on December 15, 2019,

Jisell had sent the battery charger to Amazon’s fulfillment center in San Marcos,

Texas, for storage and delivery in the event the product was purchased. [Doc. 109-

11, ¶ 15(b)]. When Mr. Pickard ordered the battery charger, Amazon retrieved the

charger from its warehouse and shipped it to Mr. Pickard. Id. At the time of Mr.

Pickard’s purchase, there were no safety-related reviews or reports for the ASIN

assigned to the Jisell four-slot battery charger. [Doc. 109-15, ¶ 6]. However, there

were three negative consumer safety reviews on a similar six-slot battery charger,

which bore a different ASIN, but was also manufactured and “sold by” Jisell. [Doc.

112-1, p. 11]. In the early morning hours of December 21, 2019, a house fire, allegedly

caused by a defect in the Jisell battery charger, ravaged Mr. Pickard’s home in

Shreveport, Louisiana. As a result of the fire, Mr. Pickard suffered severe burn

wounds and died from his injuries.

PROCEDURAL HISTORY AND CERTIFIED QUESTIONS

Plaintiffs filed their wrongful death and survival action in this Court in

November 2020, alleging that Amazon is liable for the allegedly defective four-slot

battery charger under three different theories: (i) manufacturer-seller liability under

the Louisiana Products Liability Act, La. R.S. § 9:2800.51, et seq., (“LPLA”); and the

tort-based claims of: (ii) non-manufacturer seller liability; and (iii) negligent

undertaking.

In a previously filed Motion for Summary Judgment, Amazon sought dismissal

of all Plaintiffs’ claims arguing, generally: (i) that Amazon was neither the seller nor

the manufacturer of the battery charger; and (ii) that Plaintiffs cannot establish the

elements of their negligent undertaking claim. [Doc. 59].

Given the dearth of Louisiana caselaw applying either the LPLA or the tort-

based theory of negligent undertaking to products sold on a web-based marketplace

platform, the Court sua sponte certified the following questions to the Louisiana

Supreme Court:

(1) Under Louisiana products-liability law, is the operator of an

online marketplace a “seller” of third-party products sold in its

marketplace when the operator did not hold title to the product

but: (i) had physical custody of the product in its distribution

warehouse; and (ii) controlled the process of the transaction and

delivery through its product fulfillment program?

(2) Under what circumstances, if any, would the operator of an online

marketplace who voluntarily adopts safety procedures for the

products sold through its website by third-party sellers, be liable

for injuries sustained by the purchaser of a defective product

based on a theory of negligent undertaking?

[Doc. 96]. The Louisiana Supreme Court granted certification, Pickard v.

Amazon.com, Inc., 379 So. 3d 19 (La. 2024), and answered the certified questions on

June 28, 2024. Pickard v. Amazon.com, Inc., 387 So. 3d 515 (La. 2024).

As to the first certified question, the Louisiana Supreme Court began by

setting forth the applicable LPLA statutory framework. The LPLA only applies to

manufacturers. Id. at 518, citing La. R.S. § 9:2800.52. However, under the LPLA, a

manufacturer includes “[a] seller of a product of an alien manufacturer if the seller is

in the business of importing or distributing the product for resale and the seller is the

alter ego of the alien manufacturer. Id. at 519, citing La. R.S. § 9:2800.53(1)(d).

Further, the LPLA defines “seller” as a person or entity who is not a manufacturer

and who is in the business of conveying title to or possession of a product to another

person or entity in exchange for anything of value. Id., citing La. R.S. § 9:2800.53(2).

Analyzing Amazon’s alleged “seller” status within the context of Subsection

9:2800.53(1)(d), the court stressed that the purpose of this subsection is to ensure

that when an alien manufacturer may not be subject to service of process or is

immune from enforcement of a judgment, “the seller-importer or seller-distributor

who is the alien manufacturer’s alter ego should bear the loss, not the consumer

plaintiff.” Pickard, 387 So. 3d at 520, citing John Kennedy, A Primer on the Louisiana

Products Liability Act, 49 LA. L. REV. 565, 575-76 (1989).4 See also Media Production

Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 So. 2d 377 (1972) (pre-

LPLA redhibition case that served as a basis for crafting the manufacturer-seller

classification in the LPLA). Turning to the text of the LPLA, the Louisiana Supreme

Court, using a dictionary, determined that the common and approved usage of the

word “possession” as it is used in the LPLA definition of “seller” means the “physical

custody and control of the product, without regard to ownership.” Pickard, 387 So.

3d at 520-21.

4 Senator John N. Kennedy was a drafter of the LPLA.

Accordingly, after careful consideration of the purpose of the LPLA, the

legislative history of the statute, and the language used by the Louisiana Legislature

in enacting the statute, the Louisiana Supreme Court answered the first certified

question as follows: “Under the [LPLA], the operator of an online marketplace is a

‘seller’ of third-party products sold in its marketplace when the operator did not hold

title to the product but: (i) had physical custody of the product in its distribution

warehouse; and (ii) controlled the process of the transaction and delivery through its

product fulfillment program.” Pickard, 387 So. 3d at 523.5

In answering the second certified question, the court focused on Bujol v.

Entergy Servs., Inc., 922 So. 2d 1113, 1128-29 (La. 2004), adhered to on reh’g (La.

2006), calling the decision the “definitive Louisiana analysis of Section 324A of the

Restatement of Torts Second,” and finding the standards set forth therein apply “to

determine if an operator of an online marketplace assumed a duty owed by a third-

party seller and is liable for any damages caused by the breach of that duty.” Pickard,

387 So. 3d at 526. The court did not speculate about “what circumstances may trigger

liability under Section 324A when the operator of an online marketplace voluntarily

adopts safety procedures” and specifically explained that “[a]ny fact-finding

responsibility is reserved to the federal court.” Id.

5 In so holding, the court factually distinguished Skaggs v. Amazon.com, Inc., 334 So.

3d 780 (La. App. 1st Cir. 2021), writ denied, 333 So. 3d 1243 (La. 2022), finding that, in

Skaggs, Amazon was not a seller within the meaning of the LPLA because the product was

shipped directly from the seller to the buyer. Pickard, 387 So. 3d at 523.

With the foregoing clarification from the Louisiana Supreme Court, this Court

permitted Amazon to file a second dispositive motion, which Amazon filed on August

16, 2024, again seeking summary judgment dismissing all claims. [Doc. 109]. All

briefing on that Motion having now been completed, the Motion is ripe for review.

SUMMARY JUDGMENT STANDARD

A court should grant a motion for summary judgment when the movant can

show that “there is no dispute as to any material fact and that the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,

477 U.S. 317, 323-24 (1986). In applying this standard, the Court should construe

“all facts and inferences in favor of the nonmoving party.” Deshotel v. Wal-Mart

Louisiana, L.L.C., 850 F.3d 742, 745 (5th Cir. 2017); see Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986) (“The evidence of the non-movant is to be believed, and

all justifiable inferences are to be drawn in his favor.”). As such, the party moving

for summary judgment bears the burden of demonstrating that there is no genuine

issue of material fact as to issues critical to trial that would result in the movant’s

entitlement to judgment in its favor, including identifying the relevant portions of

pleadings and discovery. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.

1995). The court must deny the moving party’s motion for summary judgment if the

movant fails to meet this burden. Id.

If the movant satisfies its burden, however, the nonmoving party must

“designate specific facts showing that there is a genuine issue for trial.” Id., citing

Celotex, 477 U.S. at 323. In evaluating motions for summary judgment, the court

must view all facts in the light most favorable to the nonmoving party. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no genuine

issue for trial – and thus a grant of summary judgment is warranted – when the

record as a whole “could not lead a rational trier of fact to find for the non-moving

party[.]” Id.

LAW AND DISCUSSION

I. Louisiana Products Liability Act

Under Louisiana law, the LPLA establishes the “exclusive theories of liability

for manufacturers for damage caused by their products.” La. R.S. § 9:2800.53. “A

claimant may not recover from a manufacturer for damage caused by a product on

the basis of any theory of liability that is not set forth in [the LPLA].” Id. As discussed

above, the LPLA defines “manufacturer” as including, “[a] seller of a product of an

alien manufacturer if the seller is in the business of importing or distributing the

product for resale and the seller is the alter ego of the alien manufacturer.” Id. §

(1)(d). In determining whether a seller is the alter ego of an alien manufacturer, the

LPLA directs courts to take into consideration: (i) “whether the seller is affiliated

with the alien manufacturer by way of common ownership or control;” (ii) “whether

the seller assumes or administers product warranty obligations of the alien

manufacturer;” (iii) whether the seller prepares or modifies the product for

distribution;” or (iv) “any other relevant evidence.” Id.

Here, Plaintiffs contend that Amazon is a “manufacturer-seller” as defined in

the LPLA. To satisfy this standard, Amazon must first be classified as a “seller.”

Applying the Louisiana Supreme Court’s guidance in Pickard to the undisputed facts

of the battery charger sale at issue, this Court concludes as a matter of law that

Amazon is a “seller” for purposes of the LPLA. 387 So. 3d at 523.

The Court’s next task then is to determine whether the record contains

material disputes of fact as to: (i) whether Amazon is in the business of importing or

distributing the subject Jisell battery charger for resale; and (ii) whether Amazon can

be considered the “alter ego” of Jisell using the statutory factors listed in La. R.S. §

9:2800.53(1)(d). The Court addresses each issue in turn.

A. Is Amazon in the Business of Importing or Distributing the

Battery Charger for Resale?

In arguing that it was not a “distributor” of the battery charger, Amazon turns

to the same argument it made when contending it was not a “seller” under the LPLA

– specifically, that it cannot be a “distributor” of the battery charger because it neither

held nor transferred title to the product. [Doc. 109-1, p. 15]. Unlike the term “seller,”

however, neither the LPLA nor Louisiana jurisprudence interpreting the LPLA

define the word “distributor,” and the parties offer competing definitions of the term.

Amazon cites an out-of-date edition of Black’s Law Dictionary, which defines a

“distributor” as a “wholesaler, jobber, or other manufacturer or supplier that sells

chiefly to retailers and commercial users,” BLACK’S LAW DICTIONARY (11th ed. 2019),

while Plaintiffs offer the Merriam-Webster definition of “distributor,” which includes

to “deliver” or “disperse.” MERRIAM-WEBSTER DICTIONARY (11th ed. 2024).

Because no Louisiana Supreme Court decision answers this question, the

Court must proffer an Erie guess as to how the Louisiana Supreme Court would rule.

SMI Owen Steel Co., Inc. v. Marsh USA, Inc., 520 F.3d 432, 436 (5th Cir. 2008). In

so doing, the Court’s “task is to attempt to predict state law, not to create or modify

it.” Id. at 442, quoting Herrmann Holdings, Ltd. v. Lucent Techs., Inc., 302 F.3d 552,

558 (5th Cir. 2002). Significantly, when making an Erie guess regarding Louisiana

law, federal courts must abide by and honor Louisiana’s unique civilian tradition. In

this fashion, federal courts must first examine the primary sources of law: the

constitution, codes, and statutes; jurisprudence serves only as a secondary source. In

re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).

The question before this Court is one of statutory interpretation, which is a

question of law. Carollo v. Dep’t of Transp. & Dev., 346 So. 3d 751, 759 (La. 2022),

citing Red Stick Studio Development, L.L.C. v. State ex rel Dept. of Econ. Dev., 56 So.

3d 181, 187 (La. 2011). The fundamental question in statutory construction cases is

legislative intent. SWAT 24 Shreveport Bossier, Inc. v. Bond, 808 So. 2d 294, 302 (La.

2001), citing Succession of Boyter, 756 So. 2d 1122, 1128 (La. 2000). Examining the

language of the statute itself serves as the starting point of statutory interpretation.

M.J. Farms, Ltd. v. Exxon Mobil Corp., 998 So. 2d 16, 26-27 (La. 2008).

When a law is clear and unambiguous and its application does not lead to

absurd consequences, it shall be applied as written, with no further interpretation

made in search of the legislative intent. La. Civ. Code art. 9; La. R.S. § 1:4. However,

“[w]hen the words of a law are ambiguous, their meaning must be sought by

examining the context in which they occur and the text of the law as a whole.” La.

Civ. Code art. 12. Also, when a law is susceptible of different meanings, “it must be

interpreted as having the meaning that best conforms to the purpose of the law.” La.

Civ. Code art. 10.

According to La. R.S. § 1:3, “[w]ords and phrases shall be read with their

context and shall be construed according to the common and approved usage of the

language. Technical words and phrases, and such others as may have acquired a

peculiar and appropriate meaning in the law, shall be construed and understood

according to such peculiar and appropriate meaning.” To obtain the plain meaning

and common usage of undefined words in a statute, dictionaries serve as a valuable

resource. Pickard, 387 So. 3d at 520, citing Gregor v. Argenot Great Cent. Ins. Co.,

851 So. 2d 959, 964 (La. 2003).

After careful consideration of the parties’ arguments and the governing

jurisprudence, the Court finds that a manufacturer-seller under the LPLA need not

take title to the product in question to be considered the product’s “distributor.” This

is true for three reasons. First, there is nothing in the text of the LPLA that supports

a deviation from the general rule that words should be given their generally

prevailing meaning. La. R.S. § 1:3. The use of the word “distributor” within the

context of the LPLA does not involve a technical matter, nor is there anything within

the LPLA that suggests the word has acquired a peculiar meaning in the law. Id.

See also La. R.S. § 1:3. Further, although the LPLA provides specific, technical

definitions for terms like “damage,” “express warranty,” and “reasonably anticipated

use,” it notably does not define the word “distributor.” This Court therefore finds that

if the Louisiana Legislature had intended to give “distributor” a technical meaning,

it would have done so.6

It is equally clear that the generally accepted meaning of the word “distributor”

does not require that a “distributor” have ownership of the object being distributed.

For instance, Merriam-Webster’s definition of “distributor” is “one that distributes”

and “one that markets a commodity.” MERRIAM-WEBSTER (11th ed. 2024). Merriam-

Webster defines “distribute” as “to divide among several or many . . . to give out or

deliver especially to members of a group[.]” Id. And the current version of Black’s

Law Dictionary defines “distribute” similarly.7 These definitions are, of course,

inclusive of situations where a distributor takes title to a product. But nowhere does

the definition require title or ownership to be a distributor.

Second, the purpose of the LPLA, as set forth in its legislative history, supports

a broad interpretation of the word “distributor.” For instance, a prior legislative draft

of the manufacturer-seller definition in La. R.S. § 9:2800.53(1)(d) required the alien

manufacturer to be insolvent or bankrupt for a plaintiff to recover against a “seller-

manufacturer.” S.B. 684, 1988 Reg. Sess. (La. 1988). However, this language was

removed after a Louisiana Senate Judiciary Committee meeting that included

testimony urging that, “at least to the Louisiana citizen who buys a foreign product,

6 This finding is consistent with the Louisiana Supreme Court’s answer to the certified

question in this matter, where it chose to use the general, non-technical definition of

“possession.” Both “distributing” and “possession” are found in the same section of the

Louisiana Revised Statues. See La. R.S. § 2800.53.

7 BLACK’S LAW DICTIONARY (12th ed. 2024) (“distribute:” “1. To apportion; to divide

among several. 2. To arrange by class or order. 3. To deliver. 4. To spread out; to disperse.”).

he ought not to be required to go to China to collect his judgment.” Minutes of Comm.

on Jud. A, La. Senate, May 17, 1988, p. 10. Thus, the legislative history supports a

broad reading of the word “distributor” to meet the underlying goal of allowing

recovery for Louisiana consumers harmed by a defective product manufactured by

foreign companies.

To this point, as referenced by the Louisiana Supreme Court in Pickard, a law

review article written shortly after the LPLA’s passage by current United States

Senator John N. Kennedy, a drafter and proponent of the LPLA, explained the

purpose of the manufacturer-seller provision as follows:

[A] seller may be the only defendant available to the plaintiff if the alien

manufacturer, because of his foreign status, is not subject to service of

process or is immune from enforcement of a judgment. In those

circumstances the seller-importer or seller-distributor who is the alien

manufacturer’s alter ego should bear the loss, not the consumer

plaintiff.

387 So. 3d at 520, citing Kennedy, 49 LA. L. REV. 565, 575-76 (footnotes omitted).

Third, the Court’s interpretation of “distributor” is consistent with the

rationale used by the Louisiana Supreme Court in answering this Court’s certified

questions. Specifically, the Louisiana Supreme Court stated that an operator of an

online marketplace, such as Amazon, should bear the loss for injury caused by a

defective product if it is the alter-ego of a foreign manufacturer. Pickard, 378 So. 3d

at 520. In doing so, the court compared an operator of an online marketplace – here,

Amazon – to the distributor in Media Production Consultants, Inc., 262 So. 2d 377

(La. 1972),8 stating that in this factual circumstance, the operator’s “involvement can

form a substantial and material part of the transaction . . . like the distributor in

Media Production.” Id. Thus, the Louisiana Supreme Court implicitly referenced

Amazon as a “distributor.” On the other hand, were the Court to adopt Amazon’s

proffered definition of “distributor” as requiring ownership, it would render

meaningless the portion of the Louisiana Supreme Court’s opinion stating the

conditions on which Amazon could be considered an alter ego of the manufacturer.

Pickard, 378 So. 3d at 520. Therefore, the use of the generally prevailing and less

restrictive definition of “distributor” is supported by Louisiana’s highest court in this

very case.

Considering the foregoing,9 this Court interprets “distributor” in La. R.S. §

9:2800.53(1)(d) to mean an entity that “gives out” or “delivers” a product, regardless

8 “In Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc.,

which predated the adoption of the Products Liability Act, this court found a domestic

distributor of a foreign automobile manufacturer to be a manufacturer for purposes of

redhibition. In addition to marketing the vehicles, the domestic distributor inspected,

adjusted, and prepared the automobiles for sale and delivery to dealerships.” Pickard, 387

So. 3d at 520 (citations omitted).

9 For largely the same reason, this Court rejects Amazon’s argument that the phrase

“for resale” in La. R.S. § 9:2800.53(1)(d) precludes Amazon from being a distributor under the

LPLA. Reading the LPLA in pari materia, it is clear that the word “resale” simply refers to

the sale of a foreign manufactured product in Louisiana by a domestic “importer” or

“distributor” of that product. It is undisputed that online retailers, like Amazon, transact

the sale of goods to customers in the United States. And, of course, the Louisiana Supreme

Court has already told us the Amazon was a “seller” of the subject battery charger under the

facts of this case. While it is undisputed that no sale took place between Jisell and Amazon

because title was never transferred, allowing the language “for resale” to prevent liability for

the operator of an online marketplace like Amazon is inconsistent with the Act’s legislative

purpose and Louisiana’s highest court’s most recent opinion on this issue.

of whether it holds and transfers title. Considering the summary judgment evidence

presented, Amazon clearly meets this definition of a “distributor.”10

B. Is Amazon the Alter Ego of Jisell for Purposes of Seller-

Manufacturer Liability under the LPLA?

Next, the Court considers whether summary judgment is appropriate on

Plaintiffs’ claim that Amazon is Jisell’s alter ego for purposes of the LPLA. La. R.S.

§ 9:2800.53(1)(d) provides four factors to apply in determining if a domestic seller is

the alter ego of an alien manufacturer: (i) “whether the seller is affiliated with the

alien manufacturer by way of common ownership or control;” (ii) “whether the seller

assumes or administers product warranty obligations of the alien manufacturer;” (iii)

“whether the seller prepares or modifies the product for distribution;” and (iv) “any

other relevant evidence.” La. R.S. § 9:2800.53(1)(d). While other federal district

courts appear to be divided on this issue,11 the Court finds that this inquiry presents

10 See [Doc. 109-11, p. 6] (“Amazon retrieved the battery charger from Jisell’s inventory

and handed it to UPS for delivery to the shipping address designated by Mr. Pickard.”). See

also [Doc. 112-41, p. 10] (“Through its FBA program, Amazon picked, packed, labeled,

shipped, and distributed the battery charger to Mr. Pickard.”). See also [Doc. 112-28, p. 19]

(“As part of our fulfillment services, we will ship Units from our Inventory of Your Products

to the shipping addresses.”).

11 See Performance Contractors, Inc. v. Great Plains Stainless, Inc., 2012 WL 5398534,

at *7 (M.D. La. Nov. 2, 2012) (“Accordingly, no reasonable juror could find that Great Plains

is a manufacturer as Zhejiang Jndia's alter ego. As a matter of law, Great Plains is therefore

not a manufacturer under the alter ego definition.”). Contra Stone Energy Corp. v. Nippon

Steel, 475 F.Supp.3d 563, 569 (W.D. La. 2020) (“The statute appears to direct the Court to

take on the fact intensive inquiry of whether sellers are ‘alter-ego manufacturers.’”). But the

Court also notes that while Stone appears to categorize the alter ego issue as a question of

law, it still applied the federal summary judgment standard to the outcome. Id. (“Because

the parties also raise the issue of alter ego, the Court will address this definition of

manufacturer even though issues of fact preclude summary judgment on the ‘control and

influence’ definition.”).

a mixed question of law and fact. Accordingly, under the federal summary judgment

standard, the resolution of the alter ego issue must be determined by a jury if there

are material factual disputes relevant to the application of these factors.12

The Court would note that this view is also in accordance with the legislative

history of the LPLA. LSU Law Professor Tom Galligan, who testified before the state

legislature during the drafting of the LPLA, expressed the same belief shortly after

the LPLA’s passage: “In Louisiana[,] the alter ego issue is a question of fact.” Tom

Galligan, The Louisiana Products Liability Act: Making Sense of it All, 49 LA. L. REV.

629, 633, n.24 (1989).

But the Court is faced with a difficult task in applying this standard: it must

retrofit the modern world of e-commerce to the statutory framework of the LPLA,

which was enacted in 1988 and has not since been amended. Adding complexity is

the fact that while the LPLA provides four factors to consider in the alter ego analysis,

Louisiana law does not speak to the weight that should be given to each factor.

12 A mixed question of law and fact involves the “application of legal standard[s] to a

particular set of facts.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 96 S. Ct. 2126, 48

L.Ed.2d 757 (1976). Under this standard, if the Court finds that reasonable persons could

draw different conclusions when applying the alter ego factors to the evidence in the record,

summary judgment is not appropriate. See, e.g., Newcomb v. N. E. Ins. Co., 721 F.2d 1016,

1019 (5th Cir. 1983). In Newcomb, the Fifth Circuit, applying Louisiana law, held that

because “reasonable and fair-minded persons could differ as to the conclusions to be drawn

from” the factors used in determining if an employment relationship existed, that issue

presented a mixed question of law and fact, and summary judgment was inappropriate. Id.

(where the factors were, “the degree of control exercised by the alleged employer, the nature

of the contract between the parties, and the extent to which the parties are economically

interdependent.”). Similarly, in the business associations context, the determination of “alter

ego” status for the purpose of piercing the corporate veil is clearly a question of fact reserved

for the jury. See Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, 872 So. 2d

1147, 1155 (La. App. 1st Cir. 2004). Thus, in this context, summary judgment is only

appropriate when reasonable minds could not differ on the answer to the mixed question.

Considering the foregoing, the Court finds the “fourth” factor – “any other relevant

evidence” – to be particularly important to the case at hand. By including this fourth

“factor,” the LPLA provides an avenue for a factfinder to consider the realities of the

modern marketplace in determining whether a domestic distributor acts as an alter

ego of a foreign manufacturer. The Court will discuss each factor in turn.

1. Is Amazon Affiliated with Jisell by Way of Common

Ownership or Control?

The first factor in determining if Amazon is the alter ego of Jisell is “whether

the seller is affiliated with the alien manufacturer by way of common ownership or

control.” La. R.S. Ann. § 9:2800.53(1)(d). In its Motion, Amazon points to the BSA

which provides that both parties are independent contractors and “nothing in [the]

Agreement will create any partnership, joint venture, agency, franchise, sales

representative, or employment relationship between” the parties. [Doc. 109-13, p. 5].

Further, Amazon states that third-party sellers are free to terminate their use of

Amazon at any time, can sell their products through other channels, and retain

complete authority over how and where they sell their products. Id. In opposition,

Plaintiffs argue that Amazon controlled nearly every aspect of the sale through the

FBA program, citing heavily to an article published in the Yale Journal of Law &

Technology13 and the BSA.14

In support of its Motion disclaiming any ownership or control of Jisell, Amazon

merely provides an affidavit broadly stating that, “Amazon is not affiliated with

third-party sellers by way of common ownership or control.” [Doc. 109-11, p. 7]. But

Amazon has failed to provide any specific evidence relevant to either issue. While

Amazon provides its independent contractor agreement with Jisell [Doc. 109-13], this

is merely a contract between the parties and does not reflect either company’s

ownership structure. There is otherwise nothing in the record showing, for example,

that Amazon does not own any shares or stock in Jisell.

13 See Edward Janger & Aaron Twerski, Functional Tort Principles for Internet

Platforms: Duty, Relationship, and Control, 26 YALE J.L. & TECH. 1, 30, 32, 49-50, 54 (2023)

(“Amazon determines the ability of third-party vendors to communicate with Amazon

customers without its permission[;] Amazon controls how the consumer learns the seller’s

identity and does so quietly[;] Payments for all sales made on Amazon are made to Amazon,

not to the third-party seller[;] Amazon provides all customers who purchase on its website,

including purchases from third-party vendors, an ‘A-to-Z Guarantee’ that covers defective

products[;] By guaranteeing satisfaction and an open return policy, Amazon communicates

to the consumer that Amazon is in charge of the transaction[;] When a single product is

offered by multiple sellers, Amazon determines which seller will get the first chance to sell

the product as a ‘Featured Offer.’[;] It may ‘commingle Units’ from multiple third-party

sellers, leaving a buyer without knowledge of which party the product originated from[;]

Once an item is sent to one of Amazon’s fulfillment centers, the seller never touches it

again.”).

14 See [Doc. 112-28, Selling on Amazon Service Terms, § S-6]; Id. at General Terms, § 2,

¶ 1] (“You will use only a name you are authorized to use[.]”); Id. at Selling on Amazon Service

Terms, § S-1.2 (Amazon will “receive all sales proceeds[.]”); Id. at § S-3; Id. at Fulfillment by

Amazon Terms, § F-4; Id. at § F-4 to F-10.

More importantly, however, is the issue of control. It is well-known that

Amazon is one of the largest and most powerful retailers in the world,15 illustrating

its capacity to exercise an inordinate level of control over its third-party sellers.16

The summary judgment evidence in this case shows that Amazon exercises

control over third-party sellers in several ways. First, Amazon mandates the

parameters of what third-party sellers must do to use its platform, as shown in the

BSA agreement. See [Doc. 109-13] (“[T]his Amazon services business solutions

agreement contain the terms and conditions that govern your access to and use of the

services[.]”). Further, as cited by Plaintiffs in their opposition brief, examples of how

Amazon controls entities like Jisell include “determin[ing] and approv[ing] the

content, appearance, design and described functionality of any product that it puts

on its online platform” and accepting payments directly for all sales made on its

platform. [Doc. 112-1, p. 17], citing Janger & Twerski, 26 YALE J.L. & TECH. 28, 30

(2023).

Second, Amazon exercises control by virtue of retailers’ reliance on its platform

to market and sell their goods. Here, Amazon has not presented the Court with any

evidence regarding the percentage of Jisell’s domestic sales that occur through

Amazon’s platform. If, for instance, ninety five percent of Jisell’s sales occur through

15 See Cally Russell, Who Are the 10 Biggest Retailers in the World, FORBES (Dec. 10,

2021), https://www.forbes.com/sites/callyrussell/2020/01/09/who-are-the-10-biggest-retailers-

in-the-world/ (Amazon is “[t]he top online retailer globally with $213bn in revenue.”).

16 See Michael Totty, Amazon (and Other Platforms) vs. Third-Party Sellers:

Complicated Debate, THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (May 10, 2023)

(“There’s no denying that platforms such as Amazon hold sway over third-party sellers[.]”).

Amazon, this would suggest that Amazon has a considerable amount of control over

Jisell. Amazon corporate representative Andy Sachs explained in his deposition that

Jisell is “registered to sell in [Amazon’s] Mexico, Canada, and U.S. Stores.” [Doc. 112-

3, p. 29]. If Jisell relies primarily on Amazon’s platform to sell goods to the entire

North American market, this would indicate a high level of control by Amazon over

Jisell. If Amazon no longer allowed Jisell to use its platform to sell goods, then

presumably Jisell would suffer significant financial consequence.

As discussed above, Amazon’s Motion suggests that it does not control Jisell

because third-party sellers are free to terminate their use of the Amazon platform at

any time, can sell their products through other channels, and retain complete

authority over how and where they sell their products. [Doc. 109-13, p. 5]. While this

is certainly relevant evidence that can be presented to the jury, the Court will not

cabin the issue of Amazon’s control of Jisell to these factors alone. Because nothing

suggests that the legislature intended to use a technical definition of “control,” the

Court again looks to the dictionary, which defines “control” as “to exercise restraining

or directing influence over . . . to have power over.” MERRIAM-WEBSTER (11th ed.

2024).17 This definition clearly encompasses more than the literal, concrete type of

control posited by Amazon.

17 In Pickard, the Louisiana Supreme Court utilized Merriam-Webster to obtain the

generally prevailing meaning of the word “possession.” Pickard, 387 So. 3d at 520. The Court

notes that the definition of “control” from Black’s Law Dictionary echoes the Merriam-

Webster definition. Black’s Law Dictionary defines control as “to exercise power or influence

over” and “to have a controlling interest in.” BLACK'S LAW DICTIONARY (12th ed. 2024).

Here, given the factors cited by the Court, there is a genuine dispute of

material fact with respect to the amount of control exercised by Amazon over Jisell.

This issue must be resolved by the finder of fact.

2. Did Amazon Assume or Administer the Product Warranty

Obligations of Jisell?

Next, the Court must consider “whether the seller assumes or administers

product warranty obligations of the alien manufacturer.” La. R.S. § 9:2800.53(1)(d).

In arguing that it does not assume the product warranty obligations of Jisell, Amazon

relies on its Conditions of Use, which expressly states that Amazon does not warrant

the products of third parties.18 Amazon also proffers the deposition testimony of

corporate representative Andy Sachs, who testified that “Amazon handles any

returns pursuant to our return policies. Any warranty that a buyer may want to

leverage, it’s possible that also overlaps with our return policies, but any returns or

exchanges we would make are pursuant to our policies. It is not dependent upon or

pursuant to a manufacturer or seller-issued warranty.” [Doc. 112-3, p. 49].

In response, Plaintiffs point to specific language in the BSA, arguing that by

virtue of its contractual relationships, Amazon actually does administer, or pass on,

the warranties of its third-party sellers to buyers when it accepts product returns:

S-2.2 Amazon Refund Policies for the applicable Amazon Site will apply

to Your Products. Subject to Section F-6. for any of Your Products

fulfilled using Fulfillment by Amazon, you will promptly accept,

18 Amazon’s Conditions of Use states: “We are not responsible for examining or

evaluating, and we do not warrant, the offerings of any [third-party] businesses or individuals

(including the content of their Web sites). Amazon does not assume any responsibility or

liability for the actions, product, and content of all these and any other third parties.” [Doc.

109-14, p. 5].

calculate, and process cancellations, returns, refunds, and adjustments

in accordance with this Agreement and the Amazon Refund Policies for

the applicable Amazon Site, using functionality we enable for your

account. Without limiting your obligations, we may in our sole discretion

accept, calculate, and process cancellations, returns, refunds, and

adjustments for the benefit of customers. You will route any payments

to customers in connection with Your Transactions through Amazon. We

will make any payments to customers in the manner we determine, and

you will reimburse us for all amounts we pay.

. . .

S-3.2. If we inform you that we have received or initiated a claim under

the "A-to-Z Guarantee" offered on a particular Amazon Site or other

dispute relating to the offer, sale or fulfillment of Your Products (other

than a chargeback), concerning one of Your Transactions, you will have

30 days to appeal our decision of the claim.

. . .

F-8.2 We will be responsible for all customer service issues relating to

packaging, handling and shipment, and customer returns, refunds, and

adjustments related to Amazon Fulfillment Units. We will determine

whether a customer will receive a refund, adjustment or replacement for

any Amazon Fulfillment Unit and we will require you to reimburse us

where we determine you have responsibility in accordance with the

Agreement (including these FBA Service Terms and the Program

Policies). We will promptly notify you when you are responsible for a

customer refund. You may appeal if you disagree with our finding within

thirty (30) days after our notification, in addition to your right to request

that Units be returned to you under Section F-7.1. Except as provided

in this Section F-8 regarding any Amazon Fulfillment Units, customer

service will be handled in accordance with your Seller Agreement.

[Doc. 112-28, Selling on Amazon Services, § S-2.2, § S-3.2; Fulfillment by Amazon

Service Terms, § F-8.2].

After conducting an independent review of the evidence submitted, this Court

finds that Plaintiffs have presented sufficient summary judgment evidence to create

a genuine dispute of material fact that Amazon not only “administers product

warranty obligations of the alien manufacturer” but may even create the warranty

obligations for third-party seller/manufactures such as Jisell. Stated differently, the

express terms of the BSA provide substantial evidence that it is actually Amazon that

creates the warranties and then contractually passes on the cost of such warranties

to its third-party sellers.19

All told, while Amazon and its corporate representative point to their

Conditions of Use and attest that they do not administer or pass on the warranties of

third-party sellers when they accept product returns, the Court finds that Plaintiffs

have the stronger position: “a jury can weigh this disclaimer against the commercial

reality, but this disclaimer does not warrant summary judgment on this factor.” [Doc.

112-1, p. 20].20

3. Did Amazon Prepare or Modify the Battery Charger for

Distribution?

The third factor to consider for this inquiry is “whether the seller prepares or

modifies the product for distribution.” La. R.S. § 9:2800.53(1)(d). Another court in

this district has determined that this factor requires the seller to take “some final

step in readying the finished product” for distribution. Stone Energy Corp. v. Nippon

19 See Wall v. Am. Prod. Co., 2006 WL 3436059, at *3 (W.D. La. Nov. 27, 2006) (“Further,

information in the Owner’s Manual, namely warranty information and the order form for

replacement parts and accessories, supports the fact that APC was the alter ego of the alien

manufacturer.”).

20 The Court notes that Amazon’s reliance on Skaggs, 334 So. 3d 780, is misplaced. As

the Louisiana Supreme Court explained, Skaggs is “factually distinguishable” in several

respects. Pickard, supra, 387 So. 3d at 523. Among other things, it is unclear in the Skaggs

case whether evidence was presented in the trial court with respect to Amazon’s warranty

obligations.

Steel, 475 F.Supp.3d 563, 570 (W.D. La. 2020) (Juneau, J.). In Stone, the court found

it was enough when a seller “inspected and ‘bucked on’ . . . pipe before it was sent” to

the customer. Id.

Here, it is undisputed that Amazon’s physical interaction with the battery

charger was limited to storing the pre-packaged battery charger in its warehouse,

retrieving the battery charger from the warehouse when ordered, placing the product

in a shipping container or applying a shipping label to the product’s box, and

delivering or arranging delivery of the product to the buyer. [Doc. 109-11, ¶ 15]. The

weight that these actions should be afforded in the alter ego analysis is properly

reserved for the jury.

4. Other Relevant Evidence

Finally, the Court addresses the “other relevant evidence” factor. Here, the

Court finds that at least one additional matter will be important for a jury to consider

when deciding whether Amazon acted as the alter ego of Jisell – how the typical

Amazon transaction looks from the viewpoint of the customer. While this additional

consideration echoes some of the analysis discussed above, it also speaks more

broadly to whether a typical consumer might consider Amazon and its third-party

seller/manufacturer to be one and the same or, alter egos, when making a purchase.

To start, the Court notes that Amazon is the largest e-commerce company in

the world.21 Amazon’s share of the U.S. e-commerce market was 37.8% in 2023 and

21 See Russell, supra, Who Are the 10 Biggest Retailers in the World (Amazon is “[t]he

top online retailer globally with $213bn in revenue.”).

is expected to rise by another 11.7% in 2024.22 While Amazon does not publish the

exact number of orders it receives annually, in 2023 it sold over 4.5 billion items in

the U.S. alone. This translates to an average of over 12 million items sold per day,

8,600 goods per minute, and 143 products per second. Amazon’s average daily sales

revenue is $1.6 billion.22 On the other side of these transactions are individual

consumers that may not be fully aware of the origin of the products they are

purchasing. A visit to the Amazon website shows the experience from the perspective

of the buyer:

ft, 18650 Rechargeable Li-ion Battery Charger ‘Currently not available.

4-slot universal smart Li-ion battery Other sige products are

charger, compatible with 26650, 18650, © Select a shipping adlress

17670, 18490, 17500, 17335, 16340 (RC123),

14500, 10440

5 The page contains machine translation, Chinese Is for reference only

a ie isiinal tov! shall ev

in | LU ets 96 Comments

lp uP □ + oe Currently not available.

a ii fd 2 i i} Other sinmilar precducts are welcome.

i 4 fi i fii i «1. Suitable for multiple sizes: 4 batteries of different sizes and capacities

fi fd i (| Can be charged af the same tine

(( A + 2 Strong compatibility: compatible with different 3.7¥ rechargeable

lithium batteries, including 26650, 18650, 17670, 18490, 17500, 17335,

i. 16340 (ROR 123), 14500, 10440, ete.

© 3 Intuitive charging etatus: LED indicater design clearly shows the

Yj, en charging progress.

/ a il « 40° With overcurment protection, overcharge protection, overpower

protection, overtemperature protection, short circuit protection, over

discharge protection and over-voltage protection. Charging stops

automatically when finished.

+ 5 Portable: Fits your home and travels.

[Doc. 112-38, p. 2];

22 20 Amazon Statistics You Need to Know in 2024, REPRICEREXPRESS (January 29,

2024), https://www.repricerexpress.com/amazon-statistics/.

23 Jacob Lauring, 14 Staggering Amazon Statistics You Need to Know in 2024: Daily

Sales, Market Share, and More, JUNGLESCOUT (June 4, 2024), https:// www. junglescout. com/

resources/articles/amazon-statistics-2024/.

Page 26 of 36

Delivered Dec 17, 2019

Signed by: DRIVER RELEASE

18650 Rechargeable Li-ion Battery Charger 4 Slot Universal Smart Li-ion Batteries Leave seller feedback

Charger, Compatible with 26650, 18650, 17570, 18490, 17500, 17335, 16340 (RCR 123),

4; 0440 Write a product review

: Return window closed on Jan 31, 2020 Archive order

$14.99

Condition: New

[Doc. 109-4, p. 1].

This screenshot shows the Jisell battery at issue as it was sold on the Amazon

website. As can be seen, the entire presentation of the product to the consumer is

controlled by Amazon. First, the product appears on Amazon’s website, [Doc. 103-138,

p. 12], and the webpage used to purchase the product includes Amazon’s “product

promotions.” [Doc. 112-38, p. 2]; see [Doc. 103-13, p. 12]. Notably, the font size used

to identify Jisell as the “seller” is small compared to the other words on the webpage.

All reviews visible to consumers on the website are Amazon customer reviews, [Doc.

112-38, p. 2], and Amazon’s webpage includes the deadline for a return of the product

to Amazon. [Doc. 109-4, p. 1] (Return window closed on Jan 31, 2020].]”). Payment

is made to Amazon, [Doc. 109-13, p. 26]; Amazon applies an Amazon shipping label,

[Doc. 109-11, p. 6]; Amazon ships the product, Jd.; and Amazon makes safety

assurances, [Doc. 112-9]. If a consumer has an issue with the product he or she

purchased, the consumer interfaces with Amazon to resolve the problem. The

Amazon shopper may even have an Amazon “app” on his or her phone, which keeps

the Amazon shopper up to date on all aspects of the transaction, from payment to

shipment to delivery.

Page 27 of 36

And Amazon’s administration of the return process on behalf of its third-party

sellers, including alien manufacturers, is also important. Amazon’s return policy

creates the impression that Amazon is standing in the shoes of its third-party sellers

and providing at least some assurance that its customers will receive a quality

product. If they don’t, no worries; Amazon will take the product back and return the

customers’ money. When viewed holistically, Amazon controls the entire experience

of the consumer when purchasing a product from a third-party seller on its platform,

including foreign manufacturers such as Jisell.

Nor can it be disputed that the average Amazon shopper often knows little to

nothing about many foreign manufacturers, such as Jisell, when purchasing that

company’s products. On the other hand, the typical Amazon shopper is very familiar

with Amazon and may rely on Amazon’s reputation when choosing the products to

purchase. The Court therefore finds that the typical buyer experience is a relevant

factor that the jury may wish to consider in its alter ego analysis.

Finally, in determining the weight to give to each of these fact-intensive

considerations and the proper application of the summary judgment standard, the

Court also takes into account that Jisell is a foreign manufacturer based in Shang

Hai, China. [Doc. 17, p. 9]. As discussed above, one of the purposes of the LPLA is

to ensure that the consumer does not bear the loss when a foreign manufacturer is

“not subject to service of process or is immune from enforcement of a judgment.”

Kennedy, supra, 49 LA. L. REV. at 575-76. Though there have been recent exceptions,

it has long been the case that when plaintiffs bring “their U.S. money judgments”

abroad to China, “foreign judgments are rarely, if ever, enforced there.” Jason Hsu,

Judgment Unenforceability in China, 19 FORDHAM J. CORP. & FIN. L. 201 (2013); see

also Michael J. Meagher & Lucia Lian, Chinese Law for Lao Wai A Survey of Chinese

Law for American Business Lawyers, 51 BOSTON B.J., 17, 19 (2007).24 Simply put, if

Amazon is not answerable to the Plaintiffs for the damage caused by the Jisell battery

charger, no one likely is.

Considering all of the foregoing, the Court finds that reasonable persons could

draw different conclusions when applying the alter ego factors to the evidence in the

record. The Court is therefore precluded from determining whether Amazon acted as

the alter ego of Jisell as a matter of law in the present case. Accordingly, because: (i)

the Court finds that Amazon was a “distributor” of the battery charger under the

undisputed facts of this case; and (ii) there are significant issues of fact that must be

weighed by a jury to determine whether Amazon operated as the “alter ego” of Jisell,

summary judgment on Plaintiffs’ LPLA claim is denied.25

24 “Chinese courts will not likely enforce the judgments of United States courts. The

United States and China have never been signatories to an international treaty calling for

the recognition and enforcement of foreign court judgments and there is no other reciprocal

obligation of U.S. and Chinese courts to enforce each other’s judgments.” Id.

25 Even if Plaintiffs are able to establish at trial that Amazon is the alter ego of Jisell

and therefore a “manufacturer,” they must still prove the remaining elements of their LPLA

claim at trial. “To recover under the [LPLA], a plaintiff must establish four elements: (1)

that the defendant is a manufacturer of the product, (2) that the claimant’s damage was

proximately caused by a characteristic of the product, (3) that this characteristic made the

product unreasonably dangerous, and (4) that the claimant’s damage arose from a reasonably

anticipated use of the product by the claimant or someone else.” Daigrepont v. Exxon Mobil

Corp., 340 So. 3d 1018 (La. App. 1st Cir. 12/30/21), amended on reh’g, (La. App. 1st Cir. 2022),

writ denied sub nom., 347 So. 3d 151 (La. 2022).

II. Non-Manufacturing Seller Liability

Plaintiffs also argue that Amazon is liable as a non-manufacturing seller. To

succeed on this claim, Plaintiffs must prove: (i) that Amazon is a seller, and (ii) that

Amazon had “actual or constructive knowledge that the product was defective, and

that the seller failed to declare the defect.” Alexander v. Toyota Motor Sales, U.S.A.,

123 So. 3d 712, 714 (La. 2013); Slaid v. Evergreen Indem., Ltd., 745 So. 2d 793, 799

(La. App. 2d Cir. 1999).

A. Is Amazon a “Seller” for Purposes of Liability Under Article

2315?

The parties dispute whether the Louisiana Supreme Court’s interpretation of

the word “seller” as used in the LPLA is applicable to Plaintiffs’ claim for non-

manufacturer seller liability, with Plaintiffs arguing for a broad interpretation of the

word and Amazon arguing for a more restrictive interpretation.26 The Court finds

that the term should be construed in accordance with the Sales Title of the Louisiana

Civil Code.

Generally, the articles of the Civil Code are part of a “complete system and

must be construed with reference to each other and harmonized with its general

purpose.” Udomeh v. Joseph, 103 So. 3d 343, 347 (La. 2012). Here, the “Sales” Title

of the Louisiana Civil Code and Plaintiffs’ claims against Amazon as a “non-

26 The Court notes that at the time it certified questions to the Louisiana Supreme

Court, Skaggs was the most applicable Louisiana case discussing the definition of “seller”

under both a non-manufacturer seller claim and the LPLA. 334 So. 3d 780 (La. App. 1st Cir.

2021). However, the Louisiana Supreme Court has now weighed in on the issue. Pickard,

387 So. 3d 515.

manufacturing seller” (brought pursuant to La. Civil Code art. 2315) share a common

purpose and apply to the same class of persons, i.e., those who transfer a thing to

another for a price.27 Thus, in defining “seller” for this tort claim, it is proper to

construe the definition of “seller” in pari materia with the Sales Title of the Civil

Code. See also Succession of Brandt, 362 So. 3d 670 (La. App. 5th Cir. 2021), aff’d,

346 So. 3d 765 (La. 2022) (articles involving the same subject matter are presumed

to be enacted in light of each other). This conclusion is further supported by the

Louisiana Supreme Court’s emphasis in Pickard that its interpretation of the word

“seller” was limited to the LPLA, which includes its own statutory definition. La. R.S.

9:2800.53(2). The court, however, “express[ed] no opinion whether the operator of an

online marketplace is a seller in any other context.” Pickard, 378 So. 3d at 523.28

Under the Civil Code, a sale is “a contract whereby a person transfers

ownership of a thing to another for a price in money.” La Civ. Code art. 2439

(emphasis added). This transfer of ownership occurs “as soon as there is agreement

as to the thing and the price is fixed, even though the thing sold is not yet delivered

nor the price paid.” La. Civ Code art 2456. Importantly, the law of sales specifically

27 The articles within the “Sales” Title of the Louisiana Civil Code share the purpose of

codifying the law as it relates to those transferring “ownership of a thing to another for a

price in money.” La. Civ. Code art. 2439. But notably, these Civil Code articles and the LPLA

“do not relate to the same class of persons or things, or share a common purpose.” See

Pickard, 387 So. 3d at 521.

28 The Court’s conclusion is further supported by the Louisiana Supreme Court’s

rationale behind defining “seller” broadly under the LPLA. Under the LPLA, sellers are only

liable where they are found to be “de facto manufacturers,” rendering a broad definition of

“seller” appropriate. Pickard, 378 So. 3d at 523. In contrast, the threshold question for

Plaintiffs’ non-manufacturing seller claim is simply whether the defendant is a “seller.”

states that one cannot sell something that he does not own. See La. Civ. Code art.

2452.29 Therefore, in reading the definition of a seller for this tort claim in pari

materia with the Sales Title of the Civil Code, a “seller” must have ownership of the

item to be sold.

Here, it is undisputed that Amazon never had ownership of the battery

charger. [Doc. 112-1, p. 10]. Thus, Amazon does not meet the definition of “seller”

from the Sales Title of the Civil Code, meaning it is a not a “seller” for purposes of

Plaintiffs’ non-manufacturer seller tort claim. Summary judgment in favor of

Amazon on this claim is therefore appropriate.

III. Negligent Undertaking

Finally, Amazon seeks summary dismissal of Plaintiffs’ negligent undertaking

claim based on Amazon’s alleged assumption of a duty. Pickard, 387 So. 3d at 524,

citing Bujol v. Entergy Servs., Inc., supra, 922 So. 2d at 1128-29. As made clear by

the Louisiana Supreme Court in this case, one who does not owe a duty to act may

assume such a duty by acting. Pickard, 387 So. 3d at 524, citing Hebert v. Rapides

Parish Police Jury, 974 So. 2d 635, 643 (La. 2007), on reh’g (La. 2008). In Pickard,

the court explained that although the Louisiana legislature has not created a specific

cause of action for assumption of a duty, Section 324A of the Restatement of Torts

Second applies to determine if an operator of an online marketplace assumed a duty

owed by a third-party seller and is liable for any damages caused by the breach of

29 “The sale of a thing belonging to another does not convey ownership.” La. Civ. Code

art. 2452.

that duty. 387 So. 3d at 526, citing Bujol, 922 So. 2d at 1128-29.30 The analysis of

this claim is divided into two steps. The first determination is whether a defendant

assumed a duty. The defendant assumes a duty under Section 324A when

undertaking the rendition of services to another, which the defendant should

recognize as necessary for the protection of a third person. Pickard, 387 So. 3d at

524-25, citing Bujol, 922 So. 2d at 1129. An affirmative or positive undertaking is

required, and courts should consider the scope of the defendant’s involvement, the

extent of defendant’s authority, and defendant’s underlying intent. Bujol, 922 So. 2d

at 1131. Mere concern or minimal contact about safety matters is not sufficient to

constitute an assumption of a duty. Id. Superior knowledge and expertise regarding

safety issues will not create a duty to guarantee safety. Id. at 1133.

If a plaintiff can establish that the defendant assumed a duty and failed to

exercise reasonable care in performance of the duty, the plaintiff must then prove one

of the following: (a) defendant’s failure to exercise reasonable care increased the risk

30 Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to

another which he should recognize as necessary for the protection of a third

person or his things, is subject to liability to the third person for physical harm

resulting from his failure to exercise reasonable care to protect his

undertaking, if

(a) his failure to exercise reasonable care increases the risk of such

harm, or

(b) he has undertaken to perform a duty owed by the other to the third

person, or

(c) the harm is suffered because of reliance of the other or the third

person upon the undertaking.

Restatement (Second) of Torts § 324A (Am. Law Inst. 1965).

of harm to plaintiff, (b) defendant undertook to perform a duty owed by another to

plaintiff, or (c) plaintiff’s harm was suffered because plaintiff or the person who

originally had the duty relied on defendant to perform the duty.” Pickard, 387 So. 3d

at 527, citing Bujol, 922 So. 2d at 1129. Here, Plaintiffs assert reliance under Section

324A(c), which requires that “the harm be suffered because of reliance by the plaintiff

. . . on defendant’s undertaking to perform the duty.” Id. at 525, citing Bujol, 922 So.

2d at 1136. “Where the reliance of the other, or of the third person, has induced him

to forgo other remedies or precautions against such a risk, the harm results from the

negligence as fully as if the actor had created the risk.” Hill v. United States Fid. &

Guar. Co., 428 F.2d 112, 113 (5th Cir. 1970), citing Restatement (Second) of Torts §

324A cmt. E.

In its Motion, Amazon argues that even if it assumed a duty, Plaintiffs cannot

establish reliance because “they can offer no evidence that [Mr.] Pickard was even

aware of, let alone made purchasing decisions based on, Amazon’s purported

‘promises to oversee safety.’” [Doc. 109-1, p. 25]. In support of this argument, Amazon

cites the Conditions of Use, which states that Amazon is “not responsible for

examining or evaluating, and we do not warrant, the offerings of any of these

businesses or individuals (including the content of their Websites). Amazon does not

assume any responsibility or liability for the actions, product, and content of all these

and any other third parties.” [Doc. 109-14, p. 5].

Plaintiffs counter by proffering an Amazon blog post on its Amazon Seller

Central page, wherein Amazon proclaims that “[c]ustomer safety is of paramount

importance to Amazon.” [Doc. 112-16, p. 2]. Plaintiffs also point to the deposition

testimony of John Horn, Amazon’s Manager of Safety Controls for Product Safety and

Compliance, regarding general consumer reliance on Amazon. When asked if he

“believe[d] that Amazon expects their customers [to] rely upon [the] representation

that Amazon is going to use sophisticated tools to prevent noncompliant products

from being listed on its website,” Mr. Horn answered, “It’s my opinion that is correct.”

[Doc. 112-14, p. 11]. Finally, Plaintiffs present the affidavit of Angela Pickard, Mr.

Pickard’s daughter, in which she characterizes her father as a “conscientious

shopper” and states that he “made an effort to make purchases from sources he

trusted, such as Amazon’s website, rather than from stores or other websites because

Amazon told its customers, like my dad, that the products sold on its website were

safe and met safety standards.” See [Doc. 112-15, pp. 2-3, Affidavit of Angela

Pickard].

Here, it is undisputed that Amazon had no safety complaints in connection

with the battery charger that Mr. Pickard purchased. And, more importantly,

Plaintiffs have failed to offer any summary judgment evidence that Mr. Pickard

actually relied upon any promises or assurances made by Amazon about its product

safety practices when deciding to purchase the subject Jisell battery charger. Nor is

Mr. Pickard’s daughter’s affidavit alone sufficient to create a genuine dispute of fact

regarding this specific transaction. See Restatement (Second) of Torts § 324A cmt. E.

This alone is fatal to Plaintiffs’ negligent undertaking claim, regardless of whether

Amazon assumed a duty. Thus, summary judgment in favor of Amazon on this claim

is appropriate.

CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that the MOTION FOR SUMMARY JUDGMENT [Doc.

109] is GRANTED IN PART and DENIED IN PART, as follows:

The Motion is GRANTED with respect to the Plaintiffs’ tort-based claims of

non-manufacturer seller liability and negligent undertaking. Accordingly, these

claims are DISMISSED WITH PREJUDICE. In all other respects, Defendant’s

MOTION FOR SUMMARY JUDGMENT is DENIED.

THUS, DONE AND SIGNED in Chambers on this 25“ day of November 2024.

( C ooops

DAVID C. JOSEPH

UNITED STATES DISTRICT JUDGE

Page 36 of 36