[00:00:00] Speaker 03: Council? [00:00:02] Speaker 03: Yes, please. [00:00:03] Speaker 03: Could we make sure that Council on video can hear us? [00:00:07] Speaker 00: I can hear you, Your Honor. [00:00:09] Speaker 00: All right. [00:00:09] Speaker 03: Thank you. [00:00:16] Speaker 01: Good morning, Your Honors. [00:00:17] Speaker 01: My name is John Yulen. [00:00:18] Speaker 01: I'm a partner of Troy Gould, and I represent the plaintiff and appellant planet green cartridges. [00:00:23] Speaker 01: I'd like to reserve five minutes of my time for rebuttal. [00:00:26] Speaker 01: All right. [00:00:29] Speaker 01: Your Honors. [00:00:30] Speaker 01: case seeks to hold Amazon accountable for its participation in the destruction of an American industry, printer ink cartridge recycling. [00:00:38] Speaker 01: The district court's order granting Amazon's motion to dismiss left Planet Green with no effective recourse against Amazon, and that order was based on four essential errors that mandate reversal. [00:00:49] Speaker 01: First, [00:00:50] Speaker 01: In finding Amazon immune from all of Planet Green's claims under Section 230 of the Communications Decency Act, the district court ignored material allegations in the complaint and defied this court's admonition that courts must take care not to exceed the scope of the immunity that the statute creates. [00:01:09] Speaker 01: In simple terms, Section 230 only even arguably applies to claims arising from statements [00:01:15] Speaker 01: by third parties that are posted over a defendant's website. [00:01:19] Speaker 01: But Planet Green's claims do not arise exclusively from third party statements on Amazon's website. [00:01:24] Speaker 01: The claims also arise substantially from conduct by Amazon that falls outside the scope of Section 230 specifically. [00:01:32] Speaker 01: The claims arise from one, Amazon's own promotion of misrepresented clone printer cartridges, including by email and over websites and search engines not [00:01:42] Speaker 01: controlled by Amazon, that is, statements by Amazon and statements made outside the context of its website. [00:01:49] Speaker 01: Two, Amazon's importation and distribution of clone printer cartridges in packages and bearing labels that misrepresent their nature and falsely describe them as recyclable and remanufactured. [00:02:00] Speaker 03: So, Counselor, you're reading to us. [00:02:02] Speaker 03: So could you just kind of tell us what cases you think support your argument that [00:02:12] Speaker 03: to Section 230 does not immunize Amazon from the claims? [00:02:20] Speaker 01: I think this court's cases, for example, in Barnes versus Yahoo, in Colleen's versus Metta, establish a scope for Section 230 immunity. [00:02:37] Speaker 03: And that's- So to me, [00:02:40] Speaker 03: The crucial point in this case is what part of the allegations relate to Amazon as a publisher of content, and what portion, if any, of the complaint relates to Amazon as a non-publisher. [00:02:58] Speaker 03: That's the difficult part of this case for me. [00:03:00] Speaker 01: I agree with that wholeheartedly, Joe Robinson. [00:03:02] Speaker 01: I think that's the number. [00:03:02] Speaker 03: So could you enlighten us on what portions of the case plead [00:03:07] Speaker 03: publishing conduct and what portions of the complaint plead non-publishing conduct, if any. [00:03:16] Speaker 01: So if I may focus on the portions that plead non-publishing contact. [00:03:21] Speaker 01: And that was the four steps that I was trying to go through a moment ago. [00:03:24] Speaker 01: Well, we have limited time. [00:03:26] Speaker 01: I understand. [00:03:27] Speaker 01: But what I'm trying to emphasize is there are at least four major categories of statements and conduct that fall outside the scope of Section 230. [00:03:35] Speaker 02: Well, I don't know if they do. [00:03:36] Speaker 02: And here's why, to try to focus this. [00:03:40] Speaker 02: I don't think, by the way, that 230 knocks out everything. [00:03:43] Speaker 02: But to the extent you're talking about Amazon repeating or, yeah, repeating misstatements that somebody else put on a package, I think you've got a problem. [00:03:55] Speaker 02: And that's, I think, endemic in most of these claims. [00:04:00] Speaker 01: What? [00:04:00] Speaker 02: You seem to be saying that if they forward those same images and same statements, same product claims, [00:04:07] Speaker 02: that they've exceeded the scope of 230. [00:04:11] Speaker 01: I am saying that in some circumstances, which relates to some of the allegations of the complaint, when Amazon itself sells the misrepresented product and adopts statements misrepresenting the nature of the product as its own promotion of [00:04:27] Speaker 01: products that Amazon itself is selling. [00:04:30] Speaker 01: That's one example of Amazon's. [00:04:31] Speaker 02: So let's talk about that example, because I think that's one of your strongest. [00:04:35] Speaker 02: So to the extent they're doing that, I think the complaint alleges that sometimes products are returned, and then Amazon sells those products. [00:04:43] Speaker 01: Yes, Your Honor. [00:04:44] Speaker 02: So they don't repackage the products, right? [00:04:46] Speaker 01: They don't repackage them. [00:04:47] Speaker 01: I don't believe they do, but again, that's a matter for discovery that we need to know more about. [00:04:50] Speaker 02: My client doesn't allege that they repackage them. [00:04:52] Speaker 01: No, we don't have enough information about that yet. [00:04:53] Speaker 02: I'm understanding this is a mislabeled package, and you object to that, [00:04:57] Speaker 02: very compelling reasons for objecting to that. [00:05:01] Speaker 02: But I think they're reselling the same package with the same alleged misrepresentation on it. [00:05:07] Speaker 02: And under our case law, to get back to Judge Rollinson's question, I think you'd have to materially add to the falsity of that product. [00:05:14] Speaker 01: But to be clear, Your Honor, when they're selling that product or distributing that product, that's conduct that's not taking place over the internet. [00:05:22] Speaker 01: That's not statements on the website. [00:05:25] Speaker 01: That's conduct by Amazon, including conduct that takes place off of the website. [00:05:29] Speaker 02: How do you want me to think of? [00:05:30] Speaker 02: OK, so that's helpful. [00:05:31] Speaker 02: That's another tranche. [00:05:32] Speaker 02: So if you're talking now about Amazon reselling product and you want me to think of it in a brick and mortar warehouse like Costco, [00:05:40] Speaker 01: And that, in fact, exists. [00:05:42] Speaker 02: Exactly. [00:05:42] Speaker 02: So now we're completely off the internet. [00:05:44] Speaker 02: So that's getting much farther away from 230. [00:05:46] Speaker 02: OK? [00:05:46] Speaker 02: Yes, you're right. [00:05:48] Speaker 02: OK. [00:05:48] Speaker 02: So to the extent that you're talking about those products, I think you're still not alleging that Amazon mislabels them. [00:05:56] Speaker 02: Relabels them. [00:05:57] Speaker 02: Forgive me. [00:05:58] Speaker 02: Relabels them. [00:05:58] Speaker 01: No, we have not alleged that Amazon relabels them. [00:06:00] Speaker 02: So let's talk about that subset, because then they're not asking as a publisher. [00:06:04] Speaker 02: But for those products, for example, I think you allege that there's passing off. [00:06:09] Speaker 01: Yes, Your Honor. [00:06:10] Speaker 02: Okay. [00:06:10] Speaker 02: How is that passing off? [00:06:11] Speaker 02: It's not relabeled to look like Planet Green's product. [00:06:15] Speaker 02: And I think the complaint alleges or you argued the people buying this don't maybe even know who Planet Green is. [00:06:23] Speaker 01: So, first of all, they don't have to know the exact identity of the producer for it to be passing off. [00:06:31] Speaker 01: They have to believe that... It's not the producer. [00:06:34] Speaker 02: That's the point. [00:06:34] Speaker 02: It's still the same product, as I'm understanding it. [00:06:36] Speaker 02: It's still the same product that is... It's not a counterfeit product, but it's a product that is mislabeled, not a planet-green product, and that's a product that's misrepresented as having this environmentally... this recycled attribute. [00:06:50] Speaker 01: The point in passing off is that [00:06:52] Speaker 01: Consumers believe that the product represented as recycled or remanufactured printer ink cartridges comes from the lawful source of printer, recycled printer ink cartridges that they're familiar with from their participation in the market. [00:07:08] Speaker 01: That's the passing off. [00:07:09] Speaker 01: It's in many regards similar. [00:07:11] Speaker 03: But most passing off cases, we have an identified producer of the product. [00:07:18] Speaker 03: Would you agree? [00:07:19] Speaker 01: Uh, I, I would, I don't think it's necessary, but I think your honor, if I may just to further answer your question, it goes to the level of precision with which one has to identify the producer of the product. [00:07:32] Speaker 03: Does that producer have to be the strongest case that you have to support your argument that in a passing off case, um, the producer of the, of the item does not have to be identified. [00:07:44] Speaker 03: What's the strongest case you have for that? [00:07:46] Speaker 03: So I would think a good example of the sort of- Give me the strongest case legally that you have for the proposition that in a passing off context, the producer of the product does not have to be identified. [00:08:04] Speaker 01: I would look, for example, at the [00:08:10] Speaker 01: Supreme Court's decision long ago in Kellogg versus National Biscuit, I don't know if this goes to the question. [00:08:20] Speaker 03: Kellogg seems to be the producer. [00:08:23] Speaker 01: Yes. [00:08:24] Speaker 01: Or National Biscuit was the producer in that case. [00:08:27] Speaker 01: But the factual scenario is very close to the factual scenario in this case. [00:08:32] Speaker 01: There was not a trademark used because the trademark was the term for which trademark protection was sought was deemed to be generic in that case. [00:08:41] Speaker 01: And there were multiple producers of shredded wheat out there, so there wasn't a singular producer, and yet the court said you can't use the shredded wheat name in or market your shredded wheat product in a manner that confuses consumers about whether it comes from [00:08:59] Speaker 01: another producer. [00:09:01] Speaker 01: Ultimately, that claim failed on the merits, on the facts, not at the pleading stage. [00:09:07] Speaker 01: It failed on the evidence, but the claim was the same. [00:09:09] Speaker 02: That's quite different from saying you can't use this label, you know, recycled printer, in a way that confuses people that they think they're buying a recycled printer. [00:09:19] Speaker 02: The passing off cases that we're speaking of, I mean, you know this, right, are cases where something is done to this product where it's passed off as, and people with consumers are allegedly mistaking it and thinking they're getting Planet Green's product. [00:09:35] Speaker 01: The district court, for example, apparently would have allowed this claim to proceed if Planet Green was responsible for producing 100 percent of the recycled, remanufactured printer ink cartridges. [00:09:50] Speaker 01: If that was the factual scenario, the court would have allowed this claim to proceed. [00:09:56] Speaker 01: Presumably, even if those folks couldn't identify the actual name Planet Green or couldn't identify that source, which is common in landmark jurisprudence, like flows from the trademark rule [00:10:08] Speaker 01: We don't have to know the name of the source of the product that's being infringed, as to which there's creation of confusion as to source. [00:10:17] Speaker 01: We simply have to know that's the product to which we are accustomed that comes from the source, whether known by name or not, that supplies that product. [00:10:24] Speaker 01: That's the general rule under the Lanham Act and of trademark and unfair competition protection. [00:10:31] Speaker 01: And the court would have applied it. [00:10:33] Speaker 01: I apologize. [00:10:34] Speaker 03: I was just going to say, generally, when we have those cases, [00:10:38] Speaker 03: what we call the senior mark, and then someone who's the junior mark is trying to pass off a product. [00:10:48] Speaker 03: I can envision a scenario where you're passing off, but you don't know what the original product is. [00:10:57] Speaker 01: Well, what the district court envisioned, which is close but not right, was [00:11:04] Speaker 01: You could have a trademark, and that would be one manner of passing off, because you've used a mark that [00:11:09] Speaker 01: the consumers associate with another product. [00:11:13] Speaker 01: Or you could have a company that produces, in the district court's view, 100% of that product. [00:11:17] Speaker 01: And so when you sell that product without authorization, you are creating a potential or a likelihood of confusion in the consumer mind that you're selling an authorized version of a product that, in its authorized form, comes from only one company. [00:11:32] Speaker 01: And the point that we're making is, in a world where the standard is likelihood of confusion and not certainty of confusion, so that 100% [00:11:39] Speaker 01: of making the product is sort of a certainty of confusion standard. [00:11:43] Speaker 01: In the world where the standard is likelihood of confusion, something less than 100% still constitutes passing off. [00:11:51] Speaker 03: So would it be 90%, would it be 80%, would it be 70%? [00:11:55] Speaker 03: Where would we draw the line then? [00:11:56] Speaker 03: What rule would we make that would [00:12:01] Speaker 03: would accommodate your argument. [00:12:04] Speaker 03: If we say 90%, we would say less than, but we don't know what number. [00:12:09] Speaker 01: Let me answer the question in two ways, Your Honor. [00:12:11] Speaker 01: I think what the facts will prove here, and admittedly it's not in the complaint, is that upwards of 90% of that marketplace of legitimate remanufactured products in the United States sold at retail comes from Planet Green, even higher over Amazon. [00:12:25] Speaker 01: And my answer to your question, where do we draw the line, [00:12:29] Speaker 01: This is one of the, and I apologize to talk at you like a trademark professor, which is one of my sidelights, but this is one of those circumstances where we will apply a totality of circumstances test that this court and others have applied repeatedly to address the conditions of likelihood of confusion. [00:12:48] Speaker 01: It's hard to draw a black letter line. [00:12:50] Speaker 01: Maybe courts over time will develop a standard as sort of a black-letter percentage line, but the better course is to apply the standard analysis that courts have applied to assess likelihood of confusion in this court and the district courts in this circuit do it all the time. [00:13:06] Speaker 02: But we're not—the consumer isn't being confused about thinking they're buying Planet Green, right? [00:13:11] Speaker 02: The consumer, according to your allegations, it's the same package. [00:13:15] Speaker 02: with the manufacturer's name on it and the confusion is or the misleading statement is that it's represented to be recycled. [00:13:22] Speaker 01: I think you're asking, I think your honor is asking a factual question that's not ripe for determination at the 12b6 stage. [00:13:28] Speaker 02: I just understand how that can be. [00:13:33] Speaker 02: I don't see the allegation, even the allegation. [00:13:36] Speaker 01: So what your honor is suggesting is where the box represents it's a different company and a different trademark [00:13:42] Speaker 01: and maybe a different product and it doesn't say Planet Green, that is enough additional information for a consumer to realize this is a different product and not be confused. [00:13:51] Speaker 02: Is it the case that you're contending that a label that says recycled ink cartridge is going to be, in a sufficient number of consumers' minds, synonymous with Planet Green, that they would be confused into thinking they're buying Planet Green? [00:14:08] Speaker 01: Ultimately, yes, Your Honor, although I don't think, and we're not alleging, that the consumer would know by name that the producer was planted green. [00:14:17] Speaker 01: And they're not required to know that under the LAM Act. [00:14:20] Speaker 02: I have questions about your negligence claim. [00:14:23] Speaker 01: Please. [00:14:23] Speaker 02: And can you explain to me your best argument that there's a duty here? [00:14:28] Speaker 02: What gives rise to the duty? [00:14:30] Speaker 01: So this is a duty of ordinary care case. [00:14:35] Speaker 01: This is not a special relationship case. [00:14:38] Speaker 01: The duty of ordinary care under the California Supreme Court's precedent in Gercourt v. Gregory arises under a six-factor analysis. [00:14:47] Speaker 01: And the most important one of those factors is the foreseeability of harm to the plaintiff. [00:14:53] Speaker 01: Under the facts alleged in the complaint, the damage to Planet Green's business, both its sales and its reputation, were a foreseeable consequence of Amazon's [00:15:06] Speaker 01: sale and distribution of misrepresented printer ink cartridges, and therefore there was a duty. [00:15:16] Speaker 01: And this is, again, a claim that flows from the failure by Amazon to verify that the product it was selling and it was distributing physical product was consistent with, true to, the representations made on the labeling and packaging of the products. [00:15:31] Speaker 01: So hopefully that's helpful. [00:15:34] Speaker 02: It's helpful I think you're arguing That Amazon has a duty to verify each product at the selling the legitimacy the authenticity of the of the of the representations made on each product We otherwise it's foreseeable. [00:15:52] Speaker 02: Somebody's gonna get hurt. [00:15:53] Speaker 01: We are yes We are arguing that and an additional fact that that reinforces that duty here is that Amazon was [00:16:01] Speaker 01: three times put on notice of a category-wide problem with misrepresentation in this product class, twice by my client and once by an independent trade association. [00:16:10] Speaker 02: So you're not asking us to rule that a duty to inspect arises just because they're reselling things on the internet, which would be extraordinary, in my view? [00:16:21] Speaker 02: Instead, you're saying they were told three times and so that gave rise to the duty that they should have looked into this rather than continuing to market a product that's mislabeled? [00:16:32] Speaker 01: We're saying that there is a foreseeable harm caused by their failure to confirm that the products are true to their labeling. [00:16:41] Speaker 02: If it goes only that far, forgive me for interrupting, but if it only goes that far, that is true of every product they sell. [00:16:49] Speaker 02: And we've never come close to that. [00:16:51] Speaker 02: No, I can't think of any court that's gone close to that. [00:16:54] Speaker 01: And again, I want to make two points. [00:16:56] Speaker 01: That is a point that we're making, that the burden of that sort of review of products where there is foreseeable harm that would flow from the misrepresentations is not extraordinary. [00:17:06] Speaker 01: And again, if I may. [00:17:07] Speaker 01: So let me stop there. [00:17:08] Speaker 02: If that's really the position you're taking, then that's not going to be limited to Amazon. [00:17:12] Speaker 02: It's every grocery store. [00:17:14] Speaker 01: If I may, just to complete my point, [00:17:19] Speaker 01: focus here is on Amazon's own sales of product and Amazon's own distribution of product. [00:17:24] Speaker 01: That's not the only aspect of the claim. [00:17:26] Speaker 01: The other aspect of the claim that makes it more forceful in these circumstances is Amazon's knowledge of the category wide problem that was given both by my client and by the Independent Trade Association and from the Independent Trade Association. [00:17:42] Speaker 01: a very simple verification process that could have been adopted and has not been adopted even to this day. [00:17:48] Speaker 02: Okay, so I've given you my most skeptical look at the first point that you made, and you've got a limited amount of time. [00:17:53] Speaker 02: So I'm gonna go to the second point, okay. [00:17:55] Speaker 02: And you can try to convince my colleagues at the first one. [00:17:59] Speaker 02: The second point is, once we raise it and complain to Amazon repeatedly that this thing's mislabeled, this product is mislabeled, that that gave rise to a duty. [00:18:08] Speaker 02: So can you tell me, do you have case law that supports that scenario? [00:18:13] Speaker 01: I don't have it before me, Your Honor. [00:18:22] Speaker 01: Again, the focus of our duty argument, and I think this is the right way to look at it, and I appreciate, Your Honor, skepticism on this point, is that JARECORP makes clear that foreseeability of harm creates a duty of ordinary care claim. [00:18:37] Speaker 01: your honor may be right to me it honestly listen into your honor's concern it seems more a concern about breach than it is about duty uh... and what is our time done to satisfy its duty i think you're your rule is beyond capacious and i think it imposes a duty for every retailer to check out every product [00:18:58] Speaker 02: Maybe I misunderstand the rule you're proposing, the one that I just set aside. [00:19:02] Speaker 01: But it does seem to me a bit limited. [00:19:03] Speaker 01: It may, although I'm not sure we need to analyze the potential breadth of that rule in a circumstance where Amazon is on notice and has been offered by an independent trade association a verification process, which looks a whole lot like how Amazon engages in verification to prevent the sale of counterfeit goods over its website. [00:19:27] Speaker 01: So it was a verification process that was implementable and similar to what had been implemented by Amazon. [00:19:36] Speaker 01: And again, this focuses on sales and distribution of hard goods in the real world that are inconsistent with their labeling and packaging. [00:19:47] Speaker 03: Thank you, Counselor. [00:19:48] Speaker 03: You've used most of your time. [00:19:50] Speaker 03: We'll give you a minute or two for reply. [00:19:51] Speaker 01: Very well, Your Honor. [00:19:52] Speaker 01: Thank you. [00:19:56] Speaker 00: Good morning, Your Honors. [00:19:58] Speaker 00: Mois Cava on behalf of Appellatees, and may it please the Court. [00:20:04] Speaker 00: Plaintiffs' claims, as revealed in the complaint, really all center around an allegation that third-party sellers allegedly mislabeled their products as remanufactured or recycled. [00:20:20] Speaker 00: And that rather than those third party sellers being liable for that mislabeling, Amazon itself should be liable. [00:20:29] Speaker 00: The district court [00:20:31] Speaker 00: a large body of case law under 230 and outside of Section 230 found that plaintiffs cannot satisfy the elements of their claims. [00:20:44] Speaker 00: The complaint, contrary, I believe, to at least some of the argument here, I think really lays bare what the allegation is. [00:20:53] Speaker 00: In paragraph 17 of the complaint, the focus again is on [00:20:58] Speaker 00: Amazon allowing sellers to sell these products, these allegedly mislabeled products. [00:21:06] Speaker 00: Paragraph 36, Amazon approving seller listings. [00:21:11] Speaker 00: Paragraph 55, Amazon, or sorry, sellers on Amazon using allegedly [00:21:19] Speaker 00: The alleged is not in the complaint, of course. [00:21:22] Speaker 00: Sellers on Amazon using deceptive advertising. [00:21:26] Speaker 02: May I stop you there to ask you a question? [00:21:28] Speaker 00: Yes, your honor. [00:21:28] Speaker 02: I think we've, or at least I have communicated my skepticism about that to the extent that there's nothing, that Amazon's not adding anything. [00:21:35] Speaker 02: But there is an allegation that Amazon adds to some products a badge. [00:21:41] Speaker 02: And I don't know if there's, my first question is, is there any badge that indicates that a product is green or environmentally friendly? [00:21:49] Speaker 00: That is not the allegation. [00:21:53] Speaker 00: I'll wait for your second question. [00:21:54] Speaker 00: No, no. [00:21:54] Speaker 02: Please go ahead. [00:21:55] Speaker 02: My second question is basically, what do those badges do? [00:21:57] Speaker 02: What do they signify? [00:21:59] Speaker 00: It just says Amazon's Choice. [00:22:01] Speaker 00: So as the complaint itself acknowledges, the Amazon's Choice badge, it's paragraph 15 of the complaint, Your Honor, is assigned via an algorithm that endorses products based on customer feed. [00:22:15] Speaker 00: This is the complaint's allegation. [00:22:16] Speaker 00: It's customer feedback, highlighting ratings, price, popularity, availability, and delivery. [00:22:23] Speaker 00: And Your Honor, that is not much different than [00:22:28] Speaker 00: I'm sorry. [00:22:31] Speaker 00: Yeah, Barnes versus Yahoo or... [00:22:35] Speaker 00: There was a similar allegation. [00:22:38] Speaker 00: Yelp has star ratings and allows allegedly wrongful conduct to be associated with star ratings. [00:22:46] Speaker 00: The Yelp, Kinsey v. Yelp case cited a California Court of Appeals case favorably, which was a case against eBay, where a similar allegation was made. [00:22:57] Speaker 00: eBay sort of [00:22:59] Speaker 00: of either a high rating or a badge of some sort. [00:23:07] Speaker 00: In both of those cases, the Ninth Circuit in Kimsey v. Yelp and the California Court of Appeal, in the eBay case, found that there was a very high rate of [00:23:15] Speaker 00: that those sorts of neutral tools, even if it was a badge, even if it was a five-star rating, et cetera, do not take you out of Section 230 land. [00:23:25] Speaker 00: That itself is not the allegedly unlawful speech, Your Honor, the allegedly unlawful content. [00:23:33] Speaker 02: It comes closer. [00:23:34] Speaker 02: To the extent they're alleging that that is a badge that endorses a product that is mislabeled, it comes closer, under our case law, to adding to the falsity. [00:23:43] Speaker 00: What about that? [00:23:45] Speaker 00: I would say, Your Honor, that because the badge does not purport to say that we have determined that this product is recycled, is remanufactured, or is green, using Your Honor's analogy, I think it actually is much closer to the [00:24:06] Speaker 00: what was happening in in police and what the discord on bonk said in the fear of housing case which is it has to be the content that that is the cup the the content provided itself has to contribute to the unlawfulness the alleged unlawfulness here is the claim of remanufactured there is no claim that amazon contributed to making that [00:24:31] Speaker 03: If it endorses the claim, that's not contributing to the falsity of it? [00:24:36] Speaker 03: If it endorses the falsity? [00:24:39] Speaker 00: It is not, Your Honor, because one, as I said, the allegation of the complaint is that this Amazon Choice Badge is based on things like price, popularity, availability, and delivery. [00:24:54] Speaker 00: If, for example, in Calise, the allegations were that Metta went out, solicited and disseminated fraudulent information [00:25:06] Speaker 00: In Kimsey, the allegation was Yelp knowingly took this false information, attached star ratings to it, and then reproduced it, disseminating it through Google. [00:25:20] Speaker 02: Stop right there if I could get you to stop right there. [00:25:22] Speaker 02: His allegation is that they've three times told Amazon this is falsely labeled and that Amazon has responded by either responding to that or continuing to indicate that it is Amazon's choice. [00:25:36] Speaker 00: Amazon has not responded by saying it is Amazon's choice, Your Honor, and that's not the allegation. [00:25:41] Speaker 00: The allegations in the complaint actually reveal that Amazon, when alerted that there was something here with respect to particular sellers, [00:25:51] Speaker 00: Actually, and the complaint goes into detail about this, Amazon reached out to those folks and said, hey, here's been the allegation, not because Amazon had a duty, your honor, going to the duty point that you raised to do so, but Amazon actually did take steps. [00:26:05] Speaker 00: And the fact that one party may come forward and say, hey, I think these are falsely labeled. [00:26:11] Speaker 00: Amazon then takes action to address that issue with the sellers. [00:26:15] Speaker 00: They can't check every single listing of every single product on Amazon.com. [00:26:23] Speaker 00: That doesn't take them out of Section 230 at all, but it also, Your Honor, doesn't create a duty. [00:26:30] Speaker 00: of harm, which is why they make that allegation that we put them on notice, and therefore it was foreseeable, has never been accepted as sufficient to create a duty under any case law. [00:26:45] Speaker 00: And the courts have routinely said the mere foreseeability of harm, even if it is true, does not create a duty. [00:26:51] Speaker 00: When you add on top of that, Your Honor, the allegation in this complaint that we put them on notice [00:26:55] Speaker 00: that planet green is actually a competitor of Amazon's. [00:26:59] Speaker 00: The case law is clear that there's never a duty owed as between two entities that are allegedly competing with one another. [00:27:07] Speaker 00: And so I think that what was [00:27:10] Speaker 00: from my colleague's argument is the scope, I'll borrow your words, Judge Christin, that the scope of what they are trying to impose here would be quite capacious. [00:27:22] Speaker 00: It would require not just Amazon, but the case you just heard. [00:27:27] Speaker 00: Anybody who is selling Catalina Crunch now presumably would now have a duty to confirm every allegation, every assertion made [00:27:37] Speaker 00: on the label there, and no cases endorse such a duty, and particularly in this context, this Court's precedents have repeatedly rejected that idea. [00:27:48] Speaker 03: Council, could we turn to the products that are actually sold from the Amazon warehouse? [00:27:54] Speaker 03: Is there a distinction? [00:27:55] Speaker 00: There is not, Your Honor, under this Court's [00:28:02] Speaker 00: as as just Kristen was was indicating the the issue with the product is that the packaged product reports to be remanufactured or recycled and plaintiff claims or appellant claims here that it is not There's no allegation that Amazon is doing anything adding any content whatsoever changing the packaging in any way whatsoever under this court's case law If there if you are not [00:28:31] Speaker 00: If you cannot establish or plausibly allege that the defendant is the one making the allegedly false statement, which they cannot do here, they in fact admit the opposite in the complaint, you can't sue that defendant for that statement. [00:28:45] Speaker 00: That's not quite right. [00:28:46] Speaker 02: That's not quite right. [00:28:47] Speaker 02: Our case law would require that Amazon materially contribute to the falsity. [00:28:52] Speaker 02: in the section 230 contest context yes your honor I was talking about it even outside of the section 230 okay so let me ask you about that because if I think that's right judge Walton was asking to talk about the warehouse so does this badge only appear online yes your honor it's not in other advertisements [00:29:13] Speaker 00: It is, I know Amazon is not, there's no allegation that, for example, Amazon takes out billboards or that Amazon. [00:29:19] Speaker 02: But in the warehouse context, when they're reselling this stuff. [00:29:24] Speaker 00: There's no, nobody walks into the warehouse, Your Honor. [00:29:27] Speaker 00: The warehouse itself is actually an online. [00:29:30] Speaker 02: Yes, but there are allegations that there are advertisements that are sent that are other emails that are sent. [00:29:36] Speaker 02: I recognize this is virtual, but I'm trying to figure out where this badge appears. [00:29:40] Speaker 00: Yeah, according to the complaint, the badge appears online. [00:29:47] Speaker 00: Where online? [00:29:47] Speaker 03: Does it appear as a banner on the product, or where is it located in the context of selling these items? [00:29:58] Speaker 00: My understanding is it's located when the listing comes up. [00:30:06] Speaker 00: That's my understanding. [00:30:08] Speaker 02: Is that any different if it's being sold or resold? [00:30:12] Speaker 00: I'm not sure. [00:30:15] Speaker 02: Either way, it comes up when the listing comes up? [00:30:17] Speaker 00: Yeah, that's my understanding, Your Honor. [00:30:18] Speaker 00: There's not a difference there. [00:30:22] Speaker 00: If your honor, I don't know if you ever, for example, would go on amazon.com and search for a product, it may come up that because there's a particular product that would get shipped to you more quickly. [00:30:36] Speaker 00: For example, that may that may come up as an Amazon choice as an example. [00:30:40] Speaker 00: But again, it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's [00:30:43] Speaker 00: Amazon is not actually contributing to the false statements in any respect, nor is it alleged to, even with respect to Amazon's choice or any products sold from Amazon warehouse. [00:30:56] Speaker 00: Your Honor, I'm also mindful. [00:30:58] Speaker 00: I have nine minutes. [00:30:59] Speaker 00: I'm mindful that I'm abutting lunch, so I did want to maybe address any questions about passing off. [00:31:05] Speaker 03: I would like for you to address the passing off issue. [00:31:09] Speaker 00: So I thought it was telling that in many of these cases, the cases I thought were actually most helpful from my side are the cases that that appellant cited. [00:31:22] Speaker 00: The passing off claim in this case [00:31:27] Speaker 00: in any case, Your Honor, after the Supreme Court's decision in Kellogg for many years ago, it's not, it isn't, I agree, it is not a trait, you're using my trademark, but you do have to have sufficient allegations that the primary significance of the term in the minds of the consuming public is not the product, but the producer. [00:31:54] Speaker 00: And here, Judge Kirsten, as you pointed out, Judge Rollinson, as you pointed out, the allegations actually take them entirely out of that category of claim. [00:32:04] Speaker 00: There's two in particular. [00:32:07] Speaker 00: Planet Green admits that consumers may not even know the name Planet Green. [00:32:15] Speaker 00: It's hard to say that how this [00:32:18] Speaker 00: remanufactured could therefore be associated in their minds with just with Planet Green. [00:32:24] Speaker 00: But they also say Planet Green is only one of the companies that is selling remanufactured product. [00:32:32] Speaker 03: The opposing council says that our precedent does not require that there be an association with a particular producer of the product. [00:32:42] Speaker 03: What's your response to that? [00:32:44] Speaker 00: the Supreme Court says quite the opposite. [00:32:47] Speaker 00: There's not a case that Your Honor has been cited to that says that there needs to be no affiliation with the producer at all. [00:32:56] Speaker 00: I'll cite other cases, Your Honor. [00:32:59] Speaker 00: Admittedly, this one, a strong one, is from the Fifth Circuit. [00:33:02] Speaker 00: American Heritage and Life Insurance Company, where the court said, nope, no passing off claim because there's no evidence sufficiently allegations that the word heritage is identified [00:33:14] Speaker 00: with plaintiff by the consuming public. [00:33:18] Speaker 00: And here, Your Honor, what they are essentially trying to do, again, it's quite a remarkable rule, is say, although we could not get a trademark for the word remanufactured in the ink cartridges context, we should get a back door to that through a passing off claim. [00:33:33] Speaker 02: they don't own remanufactured and there is not any sufficient allegation that they are even the only ones that sell remanufactured ink cartridges what about the negligence claim what about the negligence claim i expressed um a lot of skepticism about the notion that amazon would need to check on every one of its uh products but his response uh your friend's response is that three times this has been raised amazon's attention to say these are falsely [00:33:58] Speaker 02: labeled and it's decimating this industry. [00:34:06] Speaker 02: Does that give rise to a duty? [00:34:07] Speaker 00: It does not give rise to a duty, Your Honor, because then the duty would be created by a party that may be looking to bring suit against another. [00:34:15] Speaker 00: That duty does not arise under common law. [00:34:17] Speaker 02: That's why I'm not sure about this. [00:34:20] Speaker 02: Maybe not as pled, but I think it's pretty well known, at least in other cases that we've seen. [00:34:26] Speaker 02: Right, where people have triggered this procedure that Amazon has, and I think eBay has and several have, is somebody's marketing a counterfeit product, and there's a procedure, I think, for Amazon to check that out. [00:34:43] Speaker 02: How is this different? [00:34:45] Speaker 00: So in those cases, Your Honor, Lace Off actually is a Ninth Circuit. [00:34:50] Speaker 00: It was a district court case. [00:34:52] Speaker 00: It was a counterfeit product case. [00:34:53] Speaker 00: The district court ruled both 230 apply that you can't go after Amazon because other people are suing counterfeit products. [00:35:00] Speaker 02: I think it's the wrong defendant. [00:35:01] Speaker 02: I understand that argument, that for most of these claims it's the wrong defendant. [00:35:05] Speaker 02: But his argument on this one, on the negligence claim, is once we raise it, [00:35:10] Speaker 02: You don't tell you that this is a problem that that may give rise to duty for Amazon to check to see if it's if it is passing along I don't mean passing off but selling Products that are mislabeled. [00:35:20] Speaker 02: So what's your best response? [00:35:22] Speaker 00: My response is that [00:35:24] Speaker 00: providing a defendant, in this case Amazon, notice that you believe that there is something wrong with products being sold does not create a duty under any law that exists in California or recognized by this court. [00:35:40] Speaker 00: The law in California says foreseeability of harm is not sufficient to create a duty. [00:35:46] Speaker 02: I know, but he's acknowledged that. [00:35:47] Speaker 02: He said California's got a six-part test. [00:35:49] Speaker 02: Forseeability is only part of it. [00:35:50] Speaker 02: We know that. [00:35:51] Speaker 02: So why doesn't it fit here? [00:35:53] Speaker 02: Why doesn't it work here when they raise it to your attention? [00:35:55] Speaker 02: If it's not too burdensome to check on a counterfeit claim, why would it be too burdensome to check on this type of claim? [00:36:00] Speaker 00: But there is no claim, Your Honor, that even in the counterfeit context, it creates a duty. [00:36:08] Speaker 00: There may be other sets of claims that you want to assert if Amazon promised to do something and it failed to do that, but that's not a negligence-oriented duty claim. [00:36:20] Speaker 00: And I would point the court to Dirov. [00:36:23] Speaker 00: where the court said in that case, and again, it's an online case. [00:36:29] Speaker 00: We know Diruff. [00:36:30] Speaker 00: We know Diruff. [00:36:31] Speaker 02: And so what you're saying is, and I wondered about this as well, but that's not alleged here, that Amazon could have, may have, but we don't know if it's not alleged here, have a contractual obligation for folks who are participating on their marketplace. [00:36:45] Speaker 02: But aside from that, he's not alleging that. [00:36:47] Speaker 02: He's alleging common law duty under California tort law. [00:36:50] Speaker 00: That's exactly right. [00:36:52] Speaker 00: And he's alleging a common law duty under the allegations that we are competitors somehow, which has just not been recognized. [00:36:59] Speaker 00: There is no such duty that flows. [00:37:01] Speaker 00: Even the allegation, Your Honor, with respect to the contract, the potential [00:37:06] Speaker 00: They don't assert a claim on that basis. [00:37:13] Speaker 00: But even there, the language used is alleging the complaint is permissive. [00:37:17] Speaker 00: It's a Amazon may ask you for further information, may take those things down. [00:37:21] Speaker 00: There's no actionable promise there. [00:37:24] Speaker 02: I don't think he's asserting one. [00:37:27] Speaker 02: I don't have any further questions. [00:37:29] Speaker 02: If you're waiting for me, I'm done. [00:37:31] Speaker 00: If there are no further questions, I know when it's useful to give back time. [00:37:36] Speaker 03: Thank you, Council. [00:37:37] Speaker 03: Rebuttal. [00:37:40] Speaker 03: Since Council is so generous, let's have two minutes. [00:37:42] Speaker 01: I'll be brief, Your Honor. [00:37:43] Speaker 01: I know I'm the only thing standing between us all and lunch. [00:37:46] Speaker 01: A few quick points. [00:37:48] Speaker 01: First, Council raises the notion that the [00:37:52] Speaker 01: Since the gravamen or the main thrust of the claims is third-party statements over the internet First of all, we've also obviously argued that Amazon is deeply engaged in creating those third-party statements But leaving that aside the claims have multiple bases and it was incumbent on the district court to parse out which of those bases is Covered by section 230 and which is which are not and to allow those that are not covered by section 230 to proceed even if it Concluded that some are and the district court did not do that secondly [00:38:22] Speaker 01: With regard to this notion that there's an algorithm that digests consumer data and generates advertising and promotions that gets pushed to consumers either on Amazon's website or over email or through search engine optimization or creates these badges, council said, well, that's just a neutral website function that can't give [00:38:44] Speaker 01: rise to liability because it doesn't change the Section 230 analysis. [00:38:49] Speaker 01: That may no longer be true. [00:38:50] Speaker 01: The Supreme Court held in Moody versus Netchoice that that sort of curation of third party content by a website and promotion of that curation constitutes first party speech by the website to its users. [00:39:06] Speaker 01: And the Third Circuit took that a step further in Anderson versus TikTok, [00:39:12] Speaker 01: which came out in August, or came down in August, and held that that first party speech in the form of curation of third party posts and pushing those results out to users is first party speech by the websites that is not covered by Section 230 immunity because it's first party speech by the websites. [00:39:37] Speaker 01: We talked about, CASEL talked about the need to demonstrate that Amazon has created a false statement in order for there to be false advertising or unfair competition liability. [00:39:46] Speaker 01: Not so. [00:39:48] Speaker 01: The language of the federal statute is pretty clear on this, section 1125A1A of the Lanham Act. [00:39:54] Speaker 01: It is use of a false or misleading statement, not the authoring of a false or misleading statement that gives rise to liability. [00:40:01] Speaker 01: And there's ample allegations of use. [00:40:03] Speaker 01: I won't repeat the arguments in our brief, but it is use, not the authoring of that. [00:40:07] Speaker 01: of those statements. [00:40:11] Speaker 01: With regard to neutral tools, I just wanted to touch on two quick points. [00:40:16] Speaker 01: Judge Rawlinson asked whether the use of those false statements did not contribute to the unlawfulness. [00:40:23] Speaker 01: It does at least two things. [00:40:24] Speaker 01: It contributes to the magnitude of the harm suffered by the unlawful statements. [00:40:29] Speaker 01: And in the context of [00:40:31] Speaker 01: Lanham Act unfair competition-based claim. [00:40:35] Speaker 01: It contributes to the likelihood that consumers will be confused, and therefore, yes, it does contribute to the unlawfulness of the statements. [00:40:42] Speaker 01: That is the standard by which lawfulness and unlawfulness is judged in these circumstances. [00:40:47] Speaker 01: The only other point I wanted to – well, two quick points if I may. [00:40:51] Speaker 01: One to clarify, we are not arguing in passing off that the product doesn't have to be associated with a producer. [00:40:59] Speaker 01: We are arguing that the [00:41:02] Speaker 01: consuming public doesn't need to know the name of that producer. [00:41:05] Speaker 01: It doesn't need to be identified. [00:41:06] Speaker 03: You have exceeded your time, counsel, so please wrap up. [00:41:08] Speaker 01: Very well, Your Honor. [00:41:09] Speaker 01: The only other point I would make relates to the Kellogg case. [00:41:13] Speaker 01: Counsel said we're trying to get an end run around the fact that we couldn't or didn't get a trademark and recycled or recyclable or remanufactured and use a passing off claim as a substitute. [00:41:28] Speaker 01: Even if that were true, [00:41:32] Speaker 01: It's exactly what happened in the Kellogg case, and the Supreme Court blessed it. [00:41:36] Speaker 03: All right. [00:41:36] Speaker 03: Thank you, counsel. [00:41:38] Speaker 03: Thank you to both counsels. [00:41:39] Speaker 01: Thank you, Your Honor. [00:41:39] Speaker 03: The case is argued is submitted for decision by the court.