Monday January 31, 2022
Judge in Recall Case Deems Amazon to Be a Distributor
Administrative Law Judge James Grimes January 19 declined to dismiss CPSC's lawsuit to force a recall by Amazon, rejecting the company's position that it is not a distributor under the CPSA. This means the schedule of activities agreed to by both sides goes forward. First up are preliminary deadlines like filing proposed confidentiality orders (Feb. 3) or serving party discovery requests (Feb. 14).
Other highlights are a June 21 discovery cutoff and a July 18 deadline for motions for summary decisions. Opposing filing and replies are due August 8 and August 29 respectively.
Grimes writes (bit.ly/3r6EEEZ) that after resolving any such motions, he will set a hearing schedule. Most important, such sessions would be targeted to start 60 days later. This means that absent other resolution, the case most likely will extend at least into 2023 absent other resolution.
In rejecting Amazon's argument (PSL, 11/15/21) that it fits the definition of a third-party logistics provider rather than that of a distributor, Grimes' discussion included:
"The undisputed facts show that the consumer goods at issue were delivered to Amazon. In fact, that's part of how the Program works; the third-party sellers send their products to Amazon so that Amazon can store the products and then ship them to consumers. So the question is whether the third-party sellers delivered, or caused to be delivered, the products "for purposes of distribution in commerce.'"
After that, he asserts that the company does perform activities that fall under a definition of distribution in commerce, especially holding for sale and holding for distribution, both occurring after introduction into commerce.
He proceeds to knock down Amazon's logistics provider argument, which would give it safe harbor against the CPSC action. Highlights of his findings include: