US Dist. Court EASTERN DISTRICT OF NEW YORK, UNITED STATES OF AMERICA, v. EBAY INC., 30 settembre 2024, ORELIA E. MERCHANT, United States District Judge, Case 1:23-cv-07173-OEM-LB , circa la vendita di dispositivi inquinanti per auto eludenti i divieti di legge (“eBay’s purported sale and offering for sale of aftermarket products for motor vehicles”):
<<eBay moves to dismiss Plaintiff’s claims on the basis that Plaintiff has failed to adequately plead its claims against eBay. See generally eBay’s Memo. eBay contends that Plaintiff has not adequately pled a violation of the CAA because Plaintiff has failed to establish that eBay violated Section 203(a)(3)(B) of the law. Id. at 6. Under CAA Section 203(a)(3)(B), certain “acts and the causing thereof are prohibited,” including causing “any person to manufacture or sell, or offer to
sell … [an emissions defeat device] where the person knows or should know that such part or component is being offered for sale or installed for such use or put to such use.” 42 U.S.C. § 7522(a)(3)(B). eBay contends that Plaintiff has failed to adequately allege that eBay committed an unlawful act with the requisite scienter under this section of the CAA. eBay’s Memo at 6.
Specifically, eBay argues that it never “sold,” “offered for sale,” or “caused the sale or offer” of Aftermarket Defeat Devices. Id>>
Poi:
<<The fact that the Utah Physicians defendant “transferred title of” the Aftermarket Defeat Devices through its agent was dispositive. Here, by contrast, no agency relationship exists between eBay and the individual sellers who use eBay’s platform. eBay’s Memo at 8. Indeed, no agency relationship could exist because eBay users explicitly agree to a non-agency relationship by consenting to Section 19 of the User Agreement which states “No agency . . . relationship is intended or created by this User Agreement.” Id. In short, while there may be broader views about what it means to “sell” something, here, under CAA Section 203(a)(3)(B), as in Utah Physicians, the Court finds that the plain meaning of the word “sell” is to “transfer [] property or title for a price.” Black’s Law Dictionary 1603, 1634 (11th ed. 2019).
In another context, the Second Circuit has similarly held that eBay is not a seller. In Tiffany (NJ) Inc. v. eBay Inc., jeweler Tiffany & Co. brought a trademark infringement action against eBay, arguing that eBay facilitated and allowed counterfeit items to be sold on its website. 576 F.
Supp. 2d 463, 469 (S.D.N.Y. 2008), aff’d in part, rev’d in part, Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010). The district court relied on three facts in concluding that eBay was not a “seller”: (1) buyers and sellers contacted each other to arrange payment and shipment; (2) eBay never physically possessed the goods sold; and (3) eBay did not necessarily know whether an item had been delivered. Tiffany, 576 F. Supp. 2d at 475. The Second Circuit affirmed eBay was not a seller: “eBay did not itself sell counterfeit Tiffany goods; only the fraudulent vendors did.”
Tiffany, 600 F.3d 114.
The United States attempts to distinguish the district court’s reasoning in Tiffany by pointing out that buyers and sellers no longer contact each other to buy items. Pl. Opp. at 14.
eBay’s business model has changed over the years, and today, buyers pay eBay. Compl. ¶ 109.
That said, importantly here, eBay still never physically possesses goods.
As a sister court has highlighted the importance of physically possessing goods sold, and the Second Circuit has affirmed that importance, to “sell” an item one must either possess the physical item or its title. Consequently, Plaintiff’s claim for injunctive relief and civil damages based on eBay’s purported sale of Aftermarket Defeat Devices is dismissed>>
(notizia e link al testo da Eric Goldman blog)