Case: 20-20108 Document: 00515919359 Page: 1 Date Filed: 06/29/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED June 29, 2021 No. 20-20108 Lyle W. Cayce Clerk

Morgan McMillan, individually and as next friend of E.G., a minor child,

Plaintiff—Appellee,

versus

Amazon.com, Incorporated,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CV-2242

Before Wiener, Costa, and Willett, Circuit Judges. Don R. Willett, Circuit Judge: This interlocutory appeal presents a single, narrow question: May Amazon be held liable as a “seller” under Texas products-liability law for third-party products sold on Amazon’s website and handled through Amazon’s Fulfillment by Amazon program? We certified this question to the Supreme Court of Texas “[g]iven the dearth of on-point caselaw and the significant potential consequences of holding online marketplaces responsible for third-party sellers’ faulty products.” McMillan v. Amazon.com, Inc.,

(5th Cir. 2020), certified question Case: 20-20108 Document: 00515919359 Page: 2 Date Filed: 06/29/2021

No. 20-20108

answered sub nom. Amazon.com, Inc. v. McMillan, No. 20-0979,

(Tex. June 25, 2021). The Supreme Court of Texas has now answered the question, holding that “potentially liable sellers are limited to those who relinquished title to the product at some point in the distribution chain.” Amazon.com, Inc. v. McMillan, No. 20-0979,

, at *1 (Tex. June 25, 2021). Because third-party sellers do not relinquish title to their products, “Amazon is not a ‘seller’” of those “products under Texas law.”

Accordingly, we REVERSE the district court’s conclusion that Amazon is a “seller” under Texas law with instructions to grant Amazon’s motion for summary judgment in full on remand.

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