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From Products Liability Law Daily, December 11, 2014

e-Bay immune from liability for sale of recalled products

By Pamela C. Maloney, J.D.

The broad immunity provision established by Congress in the Communications Decency Act (CDA) barred all claims filed against an Internet-service provider for the sale of a treestand and safety harness that were subject to recalls by the Consumer Product Safety Commission (CPSC), a federal district court in Mississippi held (Hinton v, LLC, December 9, 2014, Starrett, K.).

Background. The treestand and two safety harness subject to CPSC recalls were purchased through eBay for use by the purchaser’s adult son. Her son died in connection with a hunting accident, but the specific hunting equipment involved in the accident was not an issue in the purchaser’s lawsuit against eBay. In her lawsuit against eBay and, the purchaser stated the following counts: (1) request for injunction; (2) negligence; (3) intentional conduct; (4) gross negligence; (5) breach of the implied warranty of merchantability; (6) failure to warn; (7) breach of the duty of good faith and fair dealing; (8) violation of the Mississippi Consumer Protection Act; (9) violation of federal law; and (10) punitive damages. and eBay moved to dismiss all claims arguing that they were barred by the immunity provision of the CDA.

Communications Decency Act. The CDA immunity provision has been construed by the courts as providing broad immunity for Web-based service providers for all claims stemming from their publication of information created by third parties. The immunity provision has been found to encompass state tort claims, alleged violations of state law, requests for injunctive relief, and alleged violations of federal statutes not specifically excepted by the CDA. In determining whether the immunity provision applied, courts have examined three elements: (1) is the defendant a provider or user of an “interactive computer service”; (2) is the claim based upon information furnished by another “information content provider”; and (3) is the defendant alleged to be the publisher or speaker of the information.

After noting that eBay had been held immune under the CDA in federal and state litigation concerning the sale of defective or illegal items, the court concluded that all of the purchaser’s claims against eBay arose from the publication of information created by third parties and therefore, that CDA immunity would attach in the absence of a statutory exception.

Exceptions for criminal and civil penalties. The purchaser argued that eBay was not entitled to immunity because it allowed the sale of recalled items in violation of the Consumer Product Safety Act (CPSA), which provides for the imposition of criminal penalties for any violations. The court rejected this argument, stating that the CDA exception for federal criminal statutes applies to government prosecutions only, not to civil private rights of action.

The purchaser also argued that the civil penalties imposed by the CPSA prevented the application of the CDA’s immunity provision in this case. This argument was also rejected because the collection of civil fines under the CPSA is reserved for the CPSC and could not be enforced by private litigants.

The case is Civil Action No. 2:13cv237-KS-MTP.

Attorneys: Lawrence E. Abernathy, III (Lawrence E. Abernathy, III, Attorney at Law) for Marsha Hinton. Patrick J. Schepens (Galloway, Johnson, Tompkins, Burr & Smith, APLC) for, LLC, and, LLC

Companies:, LLC;, LLC

MainStory: TopStory DefensesLiabilityNews SCLIssuesNews ProductRecallsNews SportsandRecEquipmentNews MississippiNews

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