                                      PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 18-1198


ERIE INSURANCE COMPANY, a/s/o Minh Nguyen and Anh Nguyen,

                    Plaintiff - Appellant,

              v.

AMAZON.COM, INC.,

                    Defendant - Appellee,

and

EBAY, INC.,

                    Defendant.



Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Roger W. Titus, Senior District Judge. (8:16-cv-02679-RWT)


Argued: March 21, 2019                                          Decided: May 22, 2019


Before GREGORY, Chief Judge, and NIEMEYER and MOTZ, Circuit Judges.


Affirmed in part and reversed in part by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Gregory and Judge Motz joined. Judge Motz wrote a concurring
opinion.
ARGUED: John Kerry Weston, SACKS WESTON DIAMOND, LLC, Philadelphia,
Pennsylvania, for Appellant. William Brendan Murphy, PERKINS COIE LLP, Seattle,
Washington, for Appellee. ON BRIEF: Jesse M. Cohen, SACKS WESTON
DIAMOND, LLC, Philadelphia, Pennsylvania, for Appellant. Eric D. Miller, Laura Hill,
PERKINS COIE LLP, Seattle, Washington, for Appellee.




                                         2
NIEMEYER, Circuit Judge:

       The main issue before us is whether Amazon.com, Inc., is subject to liability for a

defective product that a customer purchased on its website from a third-party seller with

Amazon “fulfilling” the transaction by storing the product and shipping it to the

customer.

       Trung Cao of Montgomery County, Maryland, purchased a headlamp on

Amazon’s website and then gave it to friends as a gift.          The headlamp’s batteries

apparently malfunctioned, igniting the friends’ house and causing over $300,000 in

damages. Erie Insurance Company, which insured the house, paid the loss and now, as

subrogee, is pursuing this action to obtain reimbursement from Amazon for negligence,

breach of warranty, and strict liability in tort, arguing that Amazon has liability under

Maryland law because it was the “seller” of the headlamp. In particular, Erie contends

(1) that, based on the services that Amazon provided in the transaction, it was a seller;

(2) that, in any event, Amazon was a “distributor,” which Maryland law deems to be a

seller; and (3) that Amazon was an “entrustee,” as the term is used in Maryland’s

Uniform Commercial Code, and therefore Amazon passed title to the purchaser of the

headlamp and thus should be considered a seller.

       On Amazon’s motion, the district court granted summary judgment to Amazon,

concluding that Amazon was not the seller of the headlamp and therefore did not have

liability for its defective condition. It also held that Amazon was immune from suit under

the Communications Decency Act, 47 U.S.C. § 230(c)(1), a federal law protecting

internet intermediaries in the online publication of a third-party’s information.

                                             3
      While we conclude that in this case Amazon is not immune under § 230(c)(1), we

do agree with the district court that, in the circumstances of the transaction before us,

Amazon was not the “seller” of the headlamp and therefore did not have liability under

Maryland law for products liability claims asserted by reason of the product’s defective

condition.


                                            I

      On April 9, 2014, Trung Cao, a resident of Montgomery County, Maryland,

purchased online an LED headlamp — “for cycling, camping, [and] hiking” — and gave

it as a gift to his friends, Minh and Anh Nguyen, who lived in Burtonsville, also in

Montgomery County. Two weeks later, the headlamp malfunctioned, supposedly from a

defective battery or batteries, igniting the Nguyens’ house and causing $313,166.57 in

damages. Erie Insurance Company, the Nguyens’ insurer, paid the loss.

      Cao purchased the headlamp on Amazon’s website, and the document evidencing

the transaction stated that the headlamp was “sold by: Dream Light” — and “Fulfilled

by: Amazon.” There can be no dispute that this information was displayed to Cao on the

website when he purchased the headlamp. The headlamp was paid for by credit card and

delivered to Cao on April 11, 2014, by UPS Ground.

      The arrangement between Dream Light and Amazon was governed by Amazon’s

comprehensive “Amazon Services Business Solutions Agreement” and included

“fulfillment” services offered by Amazon.       Under the fulfillment program, Amazon

provided logistics services for a fee. The seller could ship its inventory to an Amazon


                                           4
warehouse for storage and, once an order was received online for a product, Amazon

would retrieve the product from inventory, box it, and ship it to the purchaser. In this

case, Dream Light shipped its headlamps to Amazon’s warehouse in Virginia, and, when

Cao’s order for one came in, Amazon packaged and shipped it to Cao using the third-

party shipper, UPS Ground. As part of its fulfillment services, Amazon also collected

payment and, after withdrawing its service fee, remitted the balance to Dream Light.

Dream Light set the price for the headlamp and created the content of the product’s

description used on the Amazon site. While Dream Light was also allowed under the

program to “offer any warranty,” apparently no explicit warranty information was

provided in this case.

       After paying the fire loss, Erie Insurance Company, as subrogee, commenced this

action against Amazon, asserting products liability claims based on its allegation that

Amazon was the “seller” of the headlamp and therefore had the liability attributable to

sellers of defective goods under Maryland law.

       On Amazon’s motion, the district court granted summary judgment to Amazon,

concluding that Amazon was not the “seller” and therefore was not liable to Erie. In

reaching that conclusion, the court focused on the nature of Amazon’s fulfillment

services program:

       The question is whether the circumstances of this case in which Amazon
       “fulfilled” the order converts Amazon into the status of the seller. . . . The
       fulfillment role as far as Amazon is concerned is that it stored the product at
       the expense and risk of the seller Dream Light. That it allowed the
       merchandise to be advertised on Amazon’s webpage. That if a purchase
       was made, Amazon would take the product from its fulfillment center, put


                                             5
       it in a box and send it to the purchaser who made arrangements to buy the
       Dream Light.

       Amazon would collect the money and ultimately remit to Dream Light
       whatever is leftover after Amazon has covered its various charges . . . .

                                     *      *      *

       I conclude that the case can be disposed of favorably to Amazon on
       summary judgment because it is not a seller.

The court also concluded that the Communications Decency Act “would preclude the

claims in any event.” From the district court’s judgment dated January 11, 2018, Erie

filed this appeal.

                                            II

       At the outset, we address Erie’s contention that the district court erred in holding

that Amazon was immune from suit under the Communications Decency Act, which

provides immunity “not only from ultimate liability [as the publisher or speaker of

information], but also from having to fight costly and protracted legal battles.” Nemet

Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (cleaned

up). The district court held that the Act applied in this case because Amazon controlled

the content of Dream Light’s offer of sale for its headlamp, noting that Amazon had

“standards governing the third-party content and controlled the user experience and what

the content — what content was displayed.” Erie argues, however, that the Act does not

apply, positing that if its claims “sought to hold Amazon liable for a misrepresentation

made by Dream Light in its Amazon advertisement, then the Communications Decency

Act might apply.” But, it notes, its claims were “based, not on . . . internet content, but


                                            6
on Amazon’s own affirmative actions as a seller (or distributor) of products. . . . The

Communications Decency Act does not insulate Amazon from liability for its own

tortious acts and seller warranties.”

       The Communications Decency Act provides that “[n]o provider or user of an

interactive computer service shall be treated as the publisher or speaker of any

information provided by another information content provider.” 47 U.S.C. § 230(c)(1).

The Act defines “interactive computer service” as “any information service, system, or

access software provider that provides or enables computer access by multiple users to a

computer server,” id. § 230(f)(2), and “information content provider” as “any person or

entity that is responsible, in whole or in part, for the creation or development of

information provided through the Internet or any other interactive computer service,” id.

§ 230(f)(3).

       By its terms, therefore, the Act provides immunity for claims against providers of

interactive computer services, such as Amazon, “as the publisher or speaker of any

information provided by another information content provider.” 47 U.S.C. § 230(c)(1)

(emphasis added). Thus, to implicate the immunity of § 230(c)(1), a claim must be based

on the interactive computer service provider’s publication of a third party’s speech. See

Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (concluding that “lawsuits

seeking to hold a service provider liable for its exercise of a publisher’s traditional

editorial functions — such as deciding whether to publish, withdraw, postpone or alter

content — are barred”); id. (noting that the Act was enacted, “in part, to maintain the

robust nature of Internet communication”); see also Nemet, 591 F.3d at 254 (“Congress

                                           7
carved out a sphere of immunity from state lawsuits for providers of interactive computer

services to preserve the vibrant and competitive free market of ideas on the Internet”

(cleaned up)).

       The products liability claims asserted by Erie in this case are not based on the

publication of another’s speech. The underpinning of Erie’s claims is its contention that

Amazon was the seller of the headlamp and therefore was liable as the seller of a

defective product. There is no claim made based on the content of speech published by

Amazon — such as a claim that Amazon had liability as the publisher of a

misrepresentation of the product or of defamatory content. See Nemet, 591 F.3d at 252

(protecting postings published on the Internet that were “false and harmful to [the

plaintiff’s] reputation”); Zeran, 129 F.3d at 328 (protecting against liability for the delay

in removing from the Internet “defamatory messages” posted by unidentified third-

parties). While the Communications Decency Act protects interactive computer service

providers from liability as a publisher of speech, it does not protect them from liability as

the seller of a defective product.

       Accordingly, we reverse the district court’s ruling applying the Communications

Decency Act’s immunity to this case.


                                             III

       On the merits, Erie contends that Amazon, like a brick-and-mortar store such as

Home Depot, is a seller of products and therefore is liable under Maryland law for the

defective products that it sells. While it acknowledges that the document evidencing the


                                             8
transaction in this case indicated that Dream Light was the seller, it argues that Amazon,

through its fulfillment services program, took so much control over the transaction that it

effectively became the seller and therefore became responsible under theories of

negligence, breach of warranty, and strict liability in tort.        As Erie states, Amazon

controls “significant aspects of th[e] transaction,” “put[ting] [it] in the position of a seller.

It doesn’t make [Amazon] any different than if you go to a Home Depot and . . . bought

the same product from a Home Depot.” The reality, it argues, was that Dream Light’s

role in the sale was “passive,” while “Amazon was the actor, the controlling party.” In

support of this position, Erie notes:

       The purchaser ordered from Amazon, using Amazon’s website. The
       purchaser paid Amazon directly. Amazon packaged the product, in
       Amazon’s warehouse, delivered it to the carrier, assumed the risk of credit
       card fraud, received payment, collected Amazon’s fee, and presumably
       forwarded any remaining balance to Dream Light. The purchaser never had
       direct contact — or, really, privity of any sort — with Dream Light. The
       contract was between him and Amazon, not between him and Dream Light.

Erie thus reasons, “The purchaser, of course, reasonably assumed that title passed directly

from Amazon to him, inasmuch as all of his dealings were with Amazon.”

       As both parties observe, products liability under Maryland law, whether asserted

under theories of negligence, breach of warranty, or strict liability in tort, is imposed on

sellers and manufacturers (a manufacturer also being a seller). As Maryland courts have

explained, “Irrespective of whether the theory of recovery is breach of warranty,

negligence or strict liability, a plaintiff must show three product litigation basics —

defect, attribution of defect to seller, and a causal relationship between the defect and the

injury.” Laing v. Volkswagen of Am., Inc., 949 A.2d 26, 39 (Md. Ct. Spec. App. 2008)

                                               9
(emphasis added) (cleaned up); see also Ford Motor Co. v. Gen. Accident Ins. Co., 779

A.2d 362, 369 (Md. 2001) (“We consistently have held that a plaintiff must prove the

existence of a defect at the time the product leaves the manufacturer [or seller] to recover

on the implied warranty claim, as well as with regard to strict liability and negligence

claims”). The defect must be shown to exist at the time the product left the seller

(whether manufacturer, distributor, or retailer) or at the time the sale was made. But in

each case Maryland law imposes liability on the seller. See, e.g., Md. Code, Com. Law

§ 2-314 (providing that a warranty that goods are merchantable is implied “in a contract

for their sale” and providing that the “seller” includes “the manufacturer, distributor,

dealer, wholesaler or other middleman or the retailor” (emphasis added)); id. § 2-315

(providing that the implied warranty of fitness for particular purpose is enforced against

the “seller” of the goods); Restatement (Second) of Torts § 402A (1965) (adopted in

Maryland by Phipps v. Gen. Motors Corp., 363 A.2d 955, 963 (Md. 1976)) (imposing

strict liability on “[o]ne who sells any product in a defective condition unreasonably

dangerous to the user or consumer or to his property” (emphasis added)). Moreover,

Maryland courts have repeatedly noted that products liability claims sounding in

negligence, breach of warranty, and strict liability in tort overlap, all focusing on the

liability of a seller for a defective product. See Miles Labs., Inc. v. Doe, 556 A.2d 1107,

1123 (Md. 1989); Laing, 949 A.2d at 39. And we have no basis to conclude that

Maryland’s understanding of “seller” is not uniform throughout its products liability law.

As Laing explained, “[i]rrespective of whether the theory of recovery is breach of



                                            10
warranty, negligence or strict liability, a plaintiff must show . . . attribution of defect to

seller.” 949 A.2d at 39.

       We also find no indication that the term “seller,” as used in Maryland’s products

liability law, should be understood in any manner other than its ordinary meaning. And

the ordinary meaning of “seller” is “one that offers [property] for sale,” with “sale”

defined as “the transfer of ownership of and the title to property from one person to

another for a price.” Merriam-Webster’s Collegiate Dictionary 1129, 1097 (11th ed.

2007). Indeed, the Maryland Uniform Commercial Code adopts this definition precisely.

See Md. Code, Com. Law § 2-103(1)(d) (defining a seller as “a person who sells or

contracts to sell goods”); id. § 2-106 (defining a “sale” as “the passing of title from the

seller to the buyer for a price”).

       We thus conclude that insofar as liability in Maryland for defective products falls

on “sellers” and manufacturers (who are also sellers), it is imposed on owners of personal

property who transfer title to purchasers of that property for a price. In this sense, a

manufacturer, distributor, dealer, and retailer who own — i.e., have title to — the

products during the chain of distribution are sellers, whereas shippers, warehousemen,

brokers, marketers, auctioneers, and other bailees or consignees, who do not take title to

property during the course of a distribution but rather render services to facilitate that

distribution or sale, are not sellers. See, e.g., Musser v. Vilsmeier Auction Co., 562 A.2d

279, 283 (Pa. 1989) (holding that auctioneers are not “sellers”). Consistent with this

distinction, various courts have held that Amazon was not a seller under similar

circumstances. See, e.g., Milo & Gabby LLC v. Amazon.com, Inc., 693 F. App’x 879,

                                             11
886–88 (Fed. Cir. 2017) (holding that Amazon was not the seller of a pillowcase

allegedly infringing copyright law when the pillowcase was sold by a third party on

Amazon’s website and “fulfilled” by Amazon); Oberdorf v. Amazon.com, Inc., 295 F.

Supp. 3d 496, 501 (M.D. Pa. 2017) (holding that, under the Restatement (Second) of

Torts § 402A, Amazon was not the seller of an allegedly defective dog leash that was

sold by a third party on Amazon’s website); McDonald v. LG Elecs. USA, Inc., 219 F.

Supp. 3d 533, 541–42 (D. Md. 2016) (holding that, under Maryland products liability

law, Amazon was not the seller of batteries sold by a third party on Amazon’s website).

       In this case, no one has presented evidence to dispute that when Dream Light

shipped its headlamp to Amazon’s warehouse in Virginia, it was the owner of — i.e., it

had title to — the headlamp. And when it transferred possession of the headlamp to

Amazon, without Amazon’s payment of the headlamp’s price or an agreement

transferring title to it, Amazon did not, by that simple transfer, receive title. See Jones v.

State, 498 A.2d 622, 623 (Md. 1985) (noting that a person can receive possession of

goods without receiving title to them). Moreover, after Amazon received the headlamp at

its warehouse, there was no action or agreement that amounted to the consummation of a

sale of the headlamp by Dream Light to Amazon. Indeed, even as Amazon possessed the

headlamp in its warehouse, Dream Light set the price for the sale of the product to

purchasers, designed the product description for the website, paid Amazon for its

fulfillment services, and ultimately received the purchase price paid by the purchaser. In

these circumstances, as Amazon explicitly posted on its site, Dream Light was the seller.



                                             12
       Moreover, the agreement between Dream Light and Amazon governing their

relationship confirms this, as it repeatedly specifies and contemplates that Dream Light,

not Amazon, retained title to the goods it stored in Amazon’s warehouses as part of the

fulfillment program. See Huettner v. Sav. Bank of Balt., 219 A.2d 559, 561–62 (Md.

1966) (explaining that a contractual agreement may determine which party retains title);

see also Md. Code, Com. Law § 2-401(1) (“[T]itle to goods passes from the seller to the

buyer in any manner and on any conditions explicitly agreed on by the parties”). For

example, under the agreement, if Dream Light were to request that Amazon dispose of

the headlamps that it stored in Amazon’s warehouse, then, upon receipt of Dream Light’s

request, “title to each disposed unit [would] transfer to [Amazon].” Of course, this

indicates that title otherwise remained with Dream Light.

       Finally, Amazon stated in an affidavit filed with its summary judgment motion

that it “did not . . . hold title to the headlamp,” and Erie presented no evidence to the

contrary.

       While Amazon does in fact sell products that it owns on its website and thus

would be considered a seller of those products, in this case it facilitated the sale for

Dream Light under its fulfillment program. We thus conclude that Dream Light was the

seller, as Cao was so informed on the site, and there is no evidence to indicate that title

passed other than from Dream Light to Cao. Although Amazon’s services were extensive

in facilitating the sale, they are no more meaningful to the analysis than are the services

provided by UPS Ground, which delivered the headlamp to Cao. Neither Amazon nor

UPS Ground was a seller incurring liability for the defective product.

                                            13
      Erie argues that Amazon was an “entrustee” under Maryland’s Uniform

Commercial Code and contends that, as entrustee, it was authorized to transfer title to

Cao and should thus be deemed a seller. The relevant provisions, however, do not

support the argument. They provide:

      (1) A purchaser of goods acquires all title which his transferor had or had
      power to transfer except that a purchaser of a limited interest acquires
      rights only to the extent of the interest purchased. . . .

      (2) Any entrusting of possession of goods to a merchant who deals in goods
      of that kind gives him power to transfer all rights of the entruster to a buyer
      in ordinary course of business.

      (3) “Entrusting” includes any delivery and any acquiescence in retention of
      possession regardless of any condition expressed between the parties to the
      delivery or acquiescence and regardless of whether the procurement of the
      entrusting or the possessor’s disposition of the goods have been such as to
      be larcenous under the criminal law.

Md. Code, Com. Law § 2-403 (emphasis added).

      Section 2-403 does not make Amazon a seller. To the contrary, it authorizes

Amazon, as an entrustee — i.e., as a bailee or consignee — to pass Dream Light’s rights

to the buyer in the ordinary course of business. Moreover, the purpose of this provision

is “to safeguard unsuspecting buyers who purchase goods from merchants in good faith,”

Great Am. Ins. Co. v. Nextday Network Hardware Corp., 73 F. Supp. 3d 636, 640 (D.

Md. 2014), and it does not in any sense create products liability for Amazon as an

entrustee. Indeed, § 2-403 “only applies when a rightful owner attempts to sue a buyer

after the buyer purchases goods from a merchant.” Id. Erie has made no argument

addressing why Amazon as entrustee would somehow have title or would be liable as a

seller. To the contrary, when Dream Light sent the headlamp to Amazon, it authorized

                                            14
Amazon to sell the headlamp on behalf of Dream Light, and thus Amazon was only

authorized to convey Dream Light’s title to the purchaser, Cao. And again, Amazon

recognized this by noting on the webpage that the headlamp was “sold by Dream Light.”

In short, Amazon functioned much like an auctioneer, a broker, a consignee, or a bailee,

none of whom actually possesses title but nonetheless is, if it is a merchant, authorized to

effect a transfer to the buyer of title held by the owner — i.e., the seller.

       Erie also argues, relying on Md. Code, Com. Law § 2-401, that because Amazon

provided for the delivery of the headlamp to Cao, it was Amazon who sold the headlamp.

See id. § 2-401(2) (“Unless otherwise explicitly agreed[,] title passes to the buyer at the

time and place at which the seller completes his performance with respect to the physical

delivery of the goods . . .”). First of all, the argument fails most obviously because UPS

Ground, not Amazon, delivered the headlamp to Cao, and under Erie’s argument, UPS

Ground would then have been the seller even though it never held title. But more

fundamentally, § 2-401(2) simply instructs when title passes, (i.e., upon delivery), but

does not state that the person making delivery is the person holding and transferring title.

In this case, delivery was accomplished by UPS Ground on instructions from Amazon,

which was facilitating the transaction for Dream Light, the owner of the product being

delivered.

       Erie next argues, relying on the Restatement (Second) of Torts § 402A, that

Amazon in any event is liable as a “distributor.” Comment (f) to § 402A states, “The rule

stated in this Section [imposing strict liability] applies to any person engaged in the

business of selling products . . . [and] therefore applies to any manufacturer of such a

                                              15
product, to any wholesale or retail dealer or distributor, and to the operator of a

restaurant.” Id. § 402A cmt. f (emphasis added). Erie argues, accordingly, that Amazon

as distributor need not be a seller to have § 402A liability. But Erie does not recognize

that each of the entities enumerated in Comment (f) is a type of seller that is addressed in

the text of § 402A and that the text of § 402A explicitly imposes strict liability on “one

who sells any product in a defective condition.” (Emphasis added). Erie would, by its

argument, eliminate from § 402A the “seller” requirement, and it would thus impose

strict liability on any entity who participates in the chain of distribution, including

shippers, warehousemen, consignees, and deliverers — in this case, UPS Ground. See

Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 643–44 (Md. 1992).

       At bottom, we conclude that Amazon was not, in this particular transaction, a

seller — one who transfers ownership of property for a price — and therefore does not

have the liability under Maryland law that sellers of goods have. To be sure, when

Amazon sells its own goods on its website, it has the responsibility of a “seller,” just as

any other retailer, such as Home Depot, would have. But when it provides a website for

use by other sellers of products and facilitates those sales under its fulfillment program, it

is not a seller, and it does not have the liability of a seller.

                                         *       *      *

       In sum, we reverse the district court’s ruling that Amazon was immune under the

Communications Decency Act, but we affirm its judgment that Amazon was not, in the

circumstances of this case, a seller and therefore did not have liability under Maryland

law for the allegedly defective product sold on its website by Dream Light.

                                                16
AFFIRMED IN PART AND REVERSED IN PART




    17
DIANA GRIBBON MOTZ, Circuit Judge, concurring:

       I concur fully in the court’s opinion rejecting Erie’s claims that Amazon is a

“seller” under Maryland law. I write separately to emphasize why this may not always be

so.

       Although at the moment, Maryland law supports the result we reach, much of the

State’s product liability law was adopted at a time when the American economy operated

much differently than it does now. See Phipps v. Gen. Motors Corp., 363 A.2d 955, 963

(Md. 1976) (adopting strict liability standard from Restatement (Second) of Torts

§ 402A). In a traditional supply chain, manufacturers transfer new goods to consumers

through multiple links, with each link in the chain — from manufacturer to distributor to

retailer — taking title to, and possession of, the product. Because seller liability extends

to manufacturers, distributors, and retailers alike, the consumer at the end of this supply

chain almost always has some legal recourse in the event of an injury, for some entity in

this linear supply chain is clearly a “seller” and available for service of process within the

United States.

       But Amazon disrupts the traditional supply chain. By design, Amazon’s business

model cuts out the middlemen between manufacturers and consumers, reducing the

friction that might keep foreign (or otherwise judgment-proof) manufacturers from

putting dangerous products on the market. Today, Amazon makes up at least 46 percent

of the online retail marketplace, selling more than its next twelve online competitors

combined. Lina M. Khan, Note, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 712–13

(2017).   Yet Amazon’s business model shields it from traditional products liability

                                             18
whenever state law strictly requires the exchange of title for seller liability to attach, in

many cases forcing consumers to bear the cost of injuries caused by defective products

(particularly where the formal “seller” of a product fails even to provide a domestic

address for service of process).

       Indeed, Amazon played an outsized role in the transaction at issue in this case.

Trung Cao, the purchaser of the allegedly defective headlamp, ordered the product from

Amazon’s website and paid Amazon directly. Amazon took physical possession of the

product, warehoused it, packaged it, and delivered it to the carrier.         Amazon even

assumed the risk of credit card fraud, received payment, and remitted a portion of that

payment to the manufacturer. Nearly the only thing Amazon did not do was hold title.

       I agree that, under Maryland law as it stands today, that final fact — which is

surely no accident — resolves this case in Amazon’s favor. But that may not always be

so. Indeed, Maryland’s highest court has repeatedly emphasized that considerations of

public policy may justify a change in the common law when, “in light of changed

conditions or increased knowledge, the former rule has become unsound in the

circumstances of modern life.” Miles Labs., Inc. Cutter Labs. Div. v. Doe, 556 A.2d

1107, 1117 (Md. 1989); see also May v. Air & Liquid Sys. Corp., 129 A.3d 984, 989–

1000 (Md. 2015) (expanding duty to warn in asbestos case based on policy

considerations). And the Supreme Court, interpreting federal antitrust law, recently held

that consumers purchasing third-party digital applications on a marketplace operated by a

major technology corporation nonetheless qualified as “direct purchasers” from that



                                             19
corporation. Apple Inc. v. Pepper, No. 17-204, 2019 WL 2078087, at *3 (U.S. May 13,

2019).

         A federal court sitting in diversity, however, must proceed with caution. Our

charge is to take state law as we find it “or, if necessary, predict how the state’s highest

court would rule on an unsettled issue.” Askew v. HRFC, LLC, 810 F.3d 263, 266 (4th

Cir. 2016) (internal quotation marks omitted). Given the policy-intensive nature of this

inquiry, the lack of on-point Maryland precedent, and Amazon’s novel business model, I

cannot confidently predict that Maryland courts would treat Amazon as a seller under

state law. Nor do I believe it appropriate, in the absence of a request from either party, to

certify this question to the Court of Appeals of Maryland on this court’s own initiative.

         Even so, nothing in today’s holding prevents Maryland’s own courts or legislators

from taking up and resolving these difficult, fast-changing, and cutting-edge issues

differently. To be sure, Amazon’s strategy of removing nearly every products liability

case to federal court has complicated this endeavor and arguably stunted the development

of state law. * But legislative reforms, non-removable lawsuits, and (in appropriate cases)

certification remain available to consumers and state leaders who seek to confront these

uniquely modern challenges.

         *
         See, e.g., Allstate N.J. Ins. Co. v. Amazon.com, Inc., No. 17-cv-7238 (FLW)
(LHG), 2018 WL 3546197, at *4 (D.N.J. July 24, 2018); Fox v. Amazon.com, Inc.,
No. 3:16-cv-03013, 2018 WL 2431628, at *1 (M.D. Tenn. May 30, 2018), appeal
docketed, No. 18-5661 (6th Cir. June 25, 2018); McDonald v. LG Elecs. USA, Inc., 219
F. Supp. 3d 533, 535 (D. Md. 2016). At oral argument, counsel for Amazon represented
to us that Amazon had not removed such a case only once, and that was because a lack of
complete diversity precluded Amazon from doing so. See Stiner v. Amazon.com, Inc.,
120 N.E.3d 885 (Ohio Ct. App. 2019).

                                             20
