In a recent post, we summarized recent developments in litigation and legislative activity concerning whether online marketplaces may be directly liable for the sale of defective and counterfeit products on their platforms. Now the executive branch has weighed in, with President Trump issuing (on Prime Day, no less) a Memorandum on Stopping Counterfeit Trafficking on E-Commerce Platforms Through Fines and Civil Penalties.

The Memorandum directs the Attorney General and the Secretary of Homeland Security to consider taking all appropriate action, consistent with applicable law, to:

(i) seize counterfeit goods imported into the United States in connection with a transaction on an e-commerce platform; and

(ii) impose the maximum fines and civil penalties permitted by law on any e-commerce platform that directs, assists with, or is in any way concerned in the importation into the United States of counterfeit goods.

In addition, President Trump directed the Secretary of Homeland Security, in coordination with the Attorney General, to develop a legislative proposal to promote the policy objectives of the Memorandum. As we previously discussed, multiple bills on this subject have already been introduced in the House and Senate with bipartisan support. Now the President seems to be on board as well.

One other update: We previously noted that the Pennsylvania Supreme Court had agreed to consider whether Amazon may be held strictly liable for defective products sold by third parties on its website. However, that case recently settled and the plaintiff dismissed her appeal. No word yet on whether the California Supreme Court will accept Amazon’s petition for review of the Bolger v. Amazon decision, in which a California appellate court reversed the trial court’s judgment and found Amazon could be held strictly liable for defective products.

We will continue to monitor this area and update readers on any developments in Congress or in court.

Photo of Jeffrey Warshafsky Jeffrey Warshafsky

Jeff Warshafsky is a partner in the Litigation Department. A versatile commercial litigator and strategic advisor, Jeff specializes in consumer class actions, sports litigation, false advertising, trademark, and other intellectual property disputes.

Jeff defends companies in connection with consumer class actions involving advertising…

Jeff Warshafsky is a partner in the Litigation Department. A versatile commercial litigator and strategic advisor, Jeff specializes in consumer class actions, sports litigation, false advertising, trademark, and other intellectual property disputes.

Jeff defends companies in connection with consumer class actions involving advertising and privacy issues. He has handled dozens of class actions around the country for multinational companies across diverse sectors including consumer product companies, retailers, and sports leagues. Jeff also counsels clients to avoid being targeted in such actions, helps them respond to demand letters from plaintiffs’ counsel, and negotiates resolutions.

Additionally, Jeff represents clients in competitor versus competitor advertising disputes, including in Lanham Act cases and advertising self-regulation disputes before the National Advertising Division and the National Advertising Review Board. He also counsels companies on advertising substantiation issues, with an emphasis on complex scientific testing, such as clinical trials and sensory testing. Jeff regularly advises major sports leagues on complex business disputes.

Jeff maintains a robust pro bono immigration practice, assisting clients with asylum and U-Visa applications and in connection with removal proceedings. In addition to his active practice, Jeff is an editor of and contributor to the Firm’s false advertising blog, Watch This Space: Proskauer on Advertising Law.