His testimony came as Amazon puts more muscle behind efforts to grapple with this scourge and hold not-so-honest third-party sellers accountable, including an enhanced seller vetting program and a Counterfeit Crimes Unit. It also recently partnered with two high-profile brands—healthcare, safety and consumer goods conglomerate 3M and designer Valentino—on seller lawsuits. (In response to a query about the 3M suit, an Amazon spokesperson said the platform has demonstrated a “clear and consistent stance against price gouging and counterfeiting.”)
We’ve seen these lawsuits before: Since 2018, Amazon has partnered with at least three brands on five cases. And while these brands generally seem pleased with the outcome, the cases, which in many ways mirror the current lawsuits, help illustrate just how hard it is to hold Amazon sellers accountable—even with Amazon’s help.
Amazon.com and Vera Bradley Designs Inc. v. Linda Kurth
Take, for example, handbag designer Vera Bradley, which partnered with Amazon on three lawsuits against sellers of counterfeit products in 2018. In one case, Amazon.com and Vera Bradley Designs Inc. v. Linda Kurth, court documents show the plaintiffs were awarded a default judgment because the defendant never responded.
Court documents also show all three cases resulted in injunctions, which prevent the defendants from selling the brand’s products and/or from selling on Amazon. But the complaints also included John Does 1-10 as placeholders for any additional parties, and, in some cases, even the named defendants aren’t clear. In Amazon.com and Vera Bradley Designs Inc. v. Wei “Tony” Jiang et al, the complaint includes 18 such defendants with descriptions such as, “Defendant Wei ‘Tony’ Jiang, d/b/a ‘Tony Springs,’ is either an individual who resides in Texas or is an ‘a/k/a’ or alter ego for one or more of the other Defendants identified in this Complaint.”
What’s more, as of April 19, 2019, the case was settled and dismissed, but court documents show mail to Jiang was returned unopened. And it’s not clear how brands or even Amazon can prevent a hard-to-find seller from reappearing on the platform under a different name. Amazon did not respond. Daren Garcia, a partner on the eControl team at law firm Vorys, surmised there may be a way to stop sellers through the merchant IDs they use on the platform, but he acknowledged he does not have inside knowledge.
Julia Bentley, vice president of investor relations and employee communications at Vera Bradley, did not comment on whether the injunction has kept the defendants from selling Vera Bradley products or from selling on Amazon—or whether Amazon paid the brand’s legal fees.
“Since , we have seen a significant reduction in counterfeit selling activity on the Amazon platform,” she wrote in an email.
Amazon.com and Otter Products LLC v. Ngullen Alejandro Rivera et al
John Does 1-10 were also included in electronics accessory brand Otter Products’ 2018 case.
“Lawyers will add Doe parties to lawsuits as essentially placeholders,” Garcia said. “What they’re saying is, ‘We believe there likely may be additional bad actors, but we don’t know or are unsure about their identity and will use the discovery process to find that information with regard to who ought to be an additional party and then amend our complaint to add them.”
According to Kevin McPherson, senior director of brand protection at Otter Products, Amazon approached the brand because it was removing listings connected to a large seller of counterfeit goods. He said Amazon’s advice was to sue—and it offered to cover legal fees and hand over any money recovered.
Otter Products knew where the primary defendant was located because of seller information from Amazon, and McPherson said they learned about the John Does through the case’s discovery process. As of Feb. 28, 2019, the defendants agreed to an injunction, and about a month later, the suit was dismissed.
McPherson said he’s happy with the outcome and appreciative of Amazon, adding, “Going as far as filing a lawsuit with us carries a lot of weight as a deterrent.”
Now, he, too, said counterfeiting and unauthorized sellers are less of an issue, calling it an “annoyance.”
“It’s a couple—one or two a week—not like the multitudes we used to have,” McPherson added.
However, he conceded the decline could also be attributable to Otter Products’ vigilance—and he said Amazon could do more to make it easier for brands to remove bad actors.
Amazon.com and Nite Ize Inc. v. Chun Wong et al
Meanwhile, in mid-2018, mobile, hardware and lighting accessories brand Nite Ize began conducting test buys of suspected counterfeit products based on “an unusually high number of low-priced offers and poor customer reviews.” Chief legal officer Clint Todd said the brand traced the listings to a seller in Canada and later determined this seller had shipped nearly 300,000 products to Amazon fulfillment centers.
“Once we understood the magnitude of the problem, we reached out to Amazon and it offered to take over the case, pay for the legal fees moving forward and provide Nite Ize with any damages recovered,” Todd said.
Like the other cases, Nite Ize is not 100% clear on seller identity. But, in this case, Amazon doesn’t appear to know either.
Todd said Amazon had a name, address and bank account for the defendants listed in the complaint, but doesn’t know who they are or where they are located now, and they have not responded to the lawsuit. On Jan. 16, 2020, the court authorized expedited discovery to help track down the defendants and Todd is optimistic if Nite Ize can access bank account and ISP information, it will be able to identify them.
“Hopefully we can hold them accountable in some way for their actions, but, as it stands right now, the only thing we’ve been able to do is shut down their Amazon stores,” he said. “I don’t know if they’ve opened up under different names or something else.”
Amazon’s ad hoc approach
Lawyers say these lawsuits are a positive step for Amazon, brands and consumers. However, thus far, they’ve only helped a small number of brands. And brands that can’t tap into Amazon-funded lawyers may struggle to see their own cases through.
“It’s really difficult—those sorts of stories about brands that don’t have the money, time or resources to fight these fights are losing market share and being driven out of business,” Todd said.
In the end, Sucharita Kodali, vice president and principal analyst at research firm Forrester, said it’s much easier for Amazon to deal with these issues on an ad hoc basis because the platform would otherwise be restricting what it allows onto the site, and she said Amazon doesn’t want to do that.
“They have … half a billion items on the site and if even some of them … may be questionable otherwise, why would Amazon want to lose that if no one is complaining?” she added.
She pointed to a federal law, Section 230 of the Communications Decency Act, which, as The New York Times put it, “permits internet companies to moderate their sites without being on the hook legally for everything they host.”
“Fundamentally, the issue is that Amazon is not obligated to do anything because it’s a marketplace and marketplaces are protected by Section 230,” Kodali said. “Amazon can do whatever the heck it wants.”
In an email, an Amazon spokesperson said, “This could not be further from the truth. Counterfeit damages our brand, disrupts the integrity of our store and challenges the trust we have worked hard to earn from customers.” She also noted Amazon’s A-to-Z Guarantee covers the cost of returns, refunds and other issues related to the sale of counterfeit goods “when a bad actor doesn’t pay.”
Instead, Kodali said the government should revoke Section 230 so Amazon can be held accountable for consumer protection and price gouging like other retailers.
“There’s no law that kind of holds Amazon accountable for anything from fake reviews to counterfeit products to really even price gouging because the sellers are the ones held accountable if someone chooses to pursue a lawsuit against the brand, which is why 3M is going after a seller, not Amazon,” Kodali added.
Editor’s note: This story has been updated to include a statement from Amazon.