United States District Court, M.D. Tennessee, Nashville Division
FRENSLEY MAGISTRATE JUDGE
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE.
before the Court are Defendant Amazon's Motion For
Summary Judgment (Doc. No. 119), and Plaintiffs' Motion
For Partial Summary Judgment (Doc. No. 136). For the reasons
set forth below, Defendant Amazon's Motion For Summary
Judgment (Doc. No. 119) is GRANTED,
Plaintiffs' Motion For Partial Summary Judgment (Doc. No.
136) is DENIED, and this action is
pending before the Court is Plaintiffs' Motion To Exclude
Evidence Regarding Reasonableness Of Defendant Amazon.com,
Inc.'s Decisions Made During December 10, 2015 Meeting
(Doc. No. 106). Through the Motion, Plaintiffs request the
Court prohibit Defendant Amazon from introducing certain
evidence at trial. Given the Court's disposition of this
action, the Motion is DENIED, as moot.
Factual and Procedural Background
Charles Brian Fox and Megan Fox originally brought this
action in the Circuit Court for Davidson County, Tennessee,
individually and on behalf of their four minor children,
Hailey, Matthew, Rebecca, and Sarah, to recover for injuries
and other damages they sustained as a result of a fire at
their home allegedly caused by a hoverboard purchased through
the Amazon.com website. (Doc. No. 1-2). Plaintiffs named
Amazon.com, W2M Trading Corporation, and various Amazon
entities as defendants. (Id.) The Amazon defendants
removed the case to federal court based on diversity of
citizenship jurisdiction. (Doc. No. 1). Plaintiffs
subsequently filed a Second Amended Complaint, naming
Defendants Amazon.com, Inc. and W2M Trading Corporation, and
raising the following claims: violation of the Tennessee
Products Liability Act, 29-28-101, et seq.,
negligent failure to warn, intentional and/or negligent
misrepresentation, and violation of the Tennessee Consumer
Protection Act, 47-18-101, et seq (Doc. No. 94).
Plaintiffs seek compensatory damages, punitive damages, and
treble damages. (Id.) Plaintiffs have obtained an
Entry of Default as to Defendant W2M Trading Corporation.
(Doc. No. 88).
allege that Plaintiff Megan Fox purchased a self-balancing
scooter, more commonly known as a hoverboard, from the
Amazon.com website on November 3, 2015 to give to her son,
Matthew, for Christmas 2015. (Doc. No. 94, at ¶¶ 6,
9, 10). Plaintiffs further allege that on January 9, 2016,
Matthew used the hoverboard, then left it next to a couch on
the first floor of their home. (Id., at ¶¶
11, 12, 13). Later that day, the hoverboard allegedly
triggered a fire that consumed the house, and caused physical
and psychological injuries to Plaintiffs.
(Id.¸ at ¶¶ 11-28). The parties do
not dispute the hoverboard, specifically the lithium-ion
battery pack, was the cause of the fire. (Id., at
parties' statements of undisputed material facts
supporting their respective motions for summary judgment
include several statements that are more in the nature of
argument than fact. Setting aside the argumentative
statements, the undisputed material facts are as follows.
of the Hoverboard
(“Amazon”) is an information service and system
designed so multiple users across the world can access its
servers and browse its marketplace at the same time. (Doc.
No. 147, at ¶ 15). Defendant W2M Trading Corporation,
also known as “W-Deals, ” was a seller that
listed and sold products on Amazon.com. (Id., at
¶ 1). On November 3, 2015, Plaintiff Megan Fox
used her existing account with Amazon to purchase the
hoverboard at issue here, the FITURBO F1. (Doc. No. 150, at
¶ 2). It is Plaintiffs' position that she bought the
hoverboard from Amazon. (Doc. No. 147 at ¶ 2). It is
Amazon's position that, although it retails some products
on its marketplace, it did not sell the hoverboard at issue
here. (Id.) Rather, Amazon contends Mrs. Fox
purchased the hoverboard from Defendant W2M Trading
Corporation, or “W-Deals, ” through the Amazon
marketplace. (Id.; Doc. No. 120, at 9).
to Mrs. Fox's purchase, Mr. Fox had investigated
hoverboards, which included visiting Amazon's website and
reading hoverboard reviews and comparing the component parts.
(Doc. No. 150, at ¶ 5). The hoverboard was described on
the webpage as having an “original Samsung advanced
battery pack.” (Id., at ¶ 3). Amazon made
no statements or representations about the hoverboard, nor
did it develop the product detail page content, on the
webpage. (Doc. No. 147, at ¶¶ 10, 11). Amazon did
not make any representations to Mrs. Fox about the hoverboard
before or at the time she purchased it. (Id., at
¶ 12). Amazon did not design or manufacture the
hoverboard. (Id., at ¶¶ 4-5).
providing her credit card information, Amazon charged Mrs.
Fox the entirety of the hoverboard purchase price of $274.79.
(Doc. No. 150, at ¶ 4). W-Deals set the price for the
hoverboard. (Doc. No. 147, at ¶ 9).
purchase receipt was sent by “amazon.com, ” and
contained Mrs. Fox's billing address, the shipping
address, the order date, shipment date, the detailed
description, the purchase price, tax, and receipt number.
(Doc. No. 150, at ¶ 6). The purchase receipt also
contained the phrase “Sold by: -DEAL-“.
(Id., at ¶ 7). Amazon permitted sellers to use
a “friendly name” by which it would be identified
as a seller of its products. (Id., at ¶ 8).
Amazon contends that Defendant W2M Trading Corporation or
“W-Deals” used “-DEAL-” as its
“friendly name” when selling items on the Amazon
website. (Id., at ¶ 9). Both Mr. and Mrs. Fox
believed the hoverboard was purchased directly from Amazon.
(Id., at ¶ 10).
parties disagree as to whether the hoverboard was shipped by
Defendant W2M Trading Corporation or by Amazon. (Doc. No.
147, at ¶¶ 3, 6). They appear to agree the
hoverboard was shipped via Federal Express from China. (Doc.
No. 150, at ¶ 11). When Plaintiffs received the
hoverboard, the shipping box contained the trademark
“Amazon” on the outside. (Id., at ¶
12). The product box containing the hoverboard was labeled
“Smart Balance Wheel” and had no information
about the seller, or about the identity of the manufacturer.
(Id., at ¶¶ 37, 38). The identity of the
manufacturer is still unknown. (Id., at ¶ 39).
operates a program known as “Fulfillment by
Amazon” or “FBA” in which sellers can place
products in Amazon's possession and control in an Amazon
Fulfillment Center until the products are purchased.
(Id., at ¶ 13). Once a product is purchased,
Amazon ships the product using Amazon-labeled boxes.
(Id., at ¶¶ 13-14) In 2015, Amazon's
FBA program shipped items using Federal Express, and it had
FBA centers in China. (Id., at ¶¶ 15-16).
Amazon contends, however, that Defendant W2M Trading did not
use this service. (Id., at ¶¶ 13, 31).
presence of sellers on Amazon's website has steadily
grown over the years. (Id., at ¶ 32).
Approximately 40% of Amazon's gross revenue comes from
co-sales. (Id., at ¶ 33). Amazon has a
“merchant integration team” specifically for the
purpose of encouraging and enhancing co-sales. (Id.,
at ¶ 34). The purpose of the merchant integration team
is to help new sellers learn how to list products, how to
describe their products on Amazon's website, and how to
handle order fulfillment. (Id., at ¶ 35). The
merchant integration team acts as the “dedicated
account manager” for sellers by being the point of
contact for sellers and answering questions or offering other
assistance such as creating sample entries on the Amazon
spreadsheet. (Id., at ¶ 36).
never communicated with any person or entity other than
Amazon regarding the purchase of the hoverboard.
(Id., at ¶ 40). Amazon does not permit any
direct communication between a seller and Amazon customers,
and did not permit sellers to have access to the contact
information of Amazon's customers. (Id., at
Business Solutions Agreement (“BSA”) with all of
its sellers provides in part, “We will provide order
information to you for each order of your products through
the applicable Amazon site.” (Id., at ¶
43). Pursuant to the BSA, Amazon had complete control over
all the money from co-sales, including the right to impose a
90-day hold on the payment of funds. (Id., at ¶
98). The BSA outlines Amazon's general intention to remit
payments to sellers every 14 days. (Id., at ¶
99). The BSA also provides sellers “will not have the
ability to initiate or cause payments to be remitted to
you.” (Id., at ¶ 100). In December 2015,
Amazon imposed a 90-day hold on remitting payment for
hoverboard sales because Amazon was worried it would
“see a higher return rate and [there would be] a
potential [for sellers] to run off with this money.”
(Id., at ¶ 101; Doc. No. 117-10).
Relating to Post-Sale Events
2015, Amazon had a product safety team in the U.S. and
Europe. (Doc. No. 150, at ¶¶ 17, 18). The product
safety team engaged in the proactive monitoring of customer
electronic and telephone contacts, including social media, to
look for product safety problems. (Id., at ¶
19). Amazon's product safety team also reviewed news
reports and notifications from governmental agencies to stay
attuned to any potential product safety issue. (Id.,
at ¶ 20). Amazon's customer service employees were
instructed to direct any “safety-related contact”
to the product safety team, regardless of whether it was a
direct sale or a co-sale. (Id., at ¶ 21).
December 2015, Amazon's product safety team demanded
sellers provide legal compliance documentation for the
hoverboards offered for sale. (Id., at ¶ 22).
This demand included documentation that the hoverboards
complied with Underwriters Laboratory requirements and United
Nations transportation regulations. (Id.) Very few
sellers responded to Amazon's demand for compliance
documentation or attempted to satisfy these requirements.
(Id., at ¶ 23). Amazon had no safety
certifications from any of the sellers placing hoverboards
for sale on the Amazon website. (Id., at ¶ 67).
has a “HazMat” (more recently renamed,
“Dangerous Goods”) team to ensure any potentially
dangerous products in an Amazon Fulfillment Center were
properly identified and labeled. (Id., at
¶¶ 24-26). The Dangerous Goods team had no role
with products that had not reached an Amazon Fulfillment
Center. (Id.) Any product with a lithium-ion battery
- including hoverboards - fell within the jurisdiction of the
Dangerous Goods team if stored or shipped by Amazon.
(Id., at ¶ 27).
constituted nearly all of Amazon's hoverboard sales.
(Id., at ¶ 66). Amazon received over $200
million in sales for hoverboards purchased from its website
from September 2015 through November 2015. (Id., at
November 2015, Amazon began an internal investigation into
the dangers of hoverboards sold from the Amazon website.
(Id., at ¶ 45). Damon Jones, an Amazon
employee, worked “almost non-stop” from November
2015 through January 2016 on this investigation.
(Id., at ¶ 46). The product safety team
prepared a written report, dated December 10, 2015, outlining
its investigation. (Id., at ¶¶ 47, 48).
The report was completed just before a meeting on December
10, 2015, which involved approximately twenty Amazon
employees, including “a broad set of senior
decision-makers.” (Id., at ¶ 49). These
decision-makers included the leadership of the product
safety, product quality, and legal teams. (Id., at
November 30, 2015, an Amazon customer sent an email to
Amazon's CEO Jeff Bezos informing him a hoverboard from
“W-Deals” (i.e. Defendant W2M Trading)
had burst into flames while his daughter was riding it with
“fireworks-like explosions, ” and had caused
substantial damage to his home. (Id., at
¶¶ 50a, 51a). The customer also reported that his
three children had narrowly escaped physical harm when the
hoverboard burst into flames. (Id., at ¶ 52).
Plaintiffs contend the ASIN [Amazon Standard Identification
Number] identified in the email to Mr. Bezos on November 30,
2015 was the same as the ASIN for the hoverboard they
purchased. (Id., at ¶ 53). The manufacturer of
the hoverboard purchased by the man who sent the November 30,
2015 email could not be identified. (Id., at ¶
product safety team's December 10, 2015 report identified
at least 17 complaints of hoverboard fires or explosions in
the United States alone from hoverboards sold on Amazon's
website. (Id., at ¶ 55). Only four of the 17
customers reported that fires occurred during the process of
charging the products. (Id., at ¶ 56).
Amazon's North American Consumer Leadership team was
concerned the reports of fires and explosions may be
indicative of a safety issue across all Chinese
manufacturers, which constituted the vast majority of the
hoverboards being offered for sale. (Id., at ¶
58). Damon Jones - the leader of Amazon's product safety
team - was concerned the entire hoverboard product category
was “bad” because the dangers of fires and
explosions were spread across many manufacturers, many
brands, and many component parts. (Id., at ¶
knew nearly 250, 000 units had been sold in the 30 days
before the December 10 report. (Id., at ¶ 60).
By December 10, 2015, Amazon knew approximately 25 percent of
the units sold in the preceding 30 days had not been
delivered. (Id., at ¶ 61). On December 10,
2015, Amazon knew it was likely the majority of hoverboards
sold during the preceding 30 days were unused and would be
opened during the holiday season. (Id., at ¶
62). Mr. Jones testified he expected to see more complaints
about hoverboard fires, smoke, and overheating.
(Id., at ¶ 63; Doc. No. 117-5, at 245, 312-13).
As a result, Amazon made “contingency plans” in
anticipation of more fires and explosions. (Id., at
¶ 64). This contingency plan included having Amazon
employees work on Saturday, December 26, 2015, to monitor any
news reports or customer complaints regarding hoverboard
fires or explosions. (Id., at ¶ 65).
a meeting on December 10, 2015, Amazon decided to recommend
the international sales team suspend all hoverboard sales.
(Id., at ¶ 73). During that meeting, Amazon
also decided to send a “non-alarmist” email to
United States hoverboard purchasers. (Id., at ¶
74). After being told of the decision to suspend all
hoverboard sales worldwide, the third highest Amazon
executive sent an email on December 10, 2015, cautioning
other Amazon employees that the email to customers would be
“headline news.” (Id., at ¶ 91).
Amazon stopped selling hoverboards in the United States and
worldwide starting on December 11, 2015. (Id., at
December 12, 2015, Amazon sent the “non-alarmist”
email to customers who had purchased hoverboards.
(Id., at ¶ 76). The subject line of the email
stated: “Important Product Safety Notification
Regarding your Amazon.com Order.” (Id., at
¶ 13). The email stated the following: “There have
been news reports of safety issues involving products like
the one you purchased that contain rechargeable lithium-ion
batteries.” (Id., at ¶ 77). Mrs. Fox was
one of the Amazon customers who received the
“non-alarmist” email. (Id., at ¶
Fox had a habit of reading emails sent to her email address,
firstname.lastname@example.org, and occasionally received
emails from Amazon to that email account. (Doc. No. 157, at
¶ 9). She has no recollection of the December 12, 2015
email from Amazon relating to hoverboards, but she does not
deny receiving it. (Id.; Doc. No. 147, at ¶
14). Mrs. Fox testified during her deposition that had she
heard “there was one fire caused by the particular
board that I bought, I would not have let it be in my
house.” (Id., at ¶ 92).
argue that the email should have informed customers of the
actions Amazon had already taken in response to hoverboard
safety concerns. Plaintiffs also argue that the email should
have informed customers that: the “safety issues”
were the risks of “fire” and “explosion,
” or that some hoverboards had burst into flames while
in use; some of the 17 fire and explosion incidents involving
hoverboards had caused significant damage to customers'
homes; Amazon was very concerned about a possible
“uptick” or “large spike” in fire and
explosion incidents as hoverboards purchased in the last 30
to 45 days were put into use for the first time on or about
December 25, 2015; Amazon had decided to stop selling
hoverboards worldwide on December 10, 2015, because of the
risk of fire and explosion; Amazon had decided to stop
selling certain ASINs, including the exact same product
purchased by Mrs. Fox, on December 2, 2015, because of the
risk of fire; Amazon's product safety manager was
concerned that the entire hoverboard product category was
bad; the dangers of fires and explosions were spread across
many manufacturers, many brands, and many component parts;
Amazon was specifically concerned that the hoverboard fires
and explosions might have been indicative of a problem across
Chinese manufacturing; Amazon's source of concern was a
“deep dive” internal investigation; and Amazon
had multiple additional sources of information other than
news reports. (Doc. No. 150, at ¶¶ 79-89).
Hoverboard refunds were limited to nineteen percent (19%)
despite the risk of fires and explosions. (Id., at
The Standards Governing Motions ...