good morning your honor you're ours and me a priest the court my name is dan berglund and i am here today representing the appellate state farm fire and casualty company and if i may i would like to reserve five minutes for rem d your owners i think the facts of this case are pretty self explanatory and they are not dissimilar to other cases where amazon has an inning and like many of those other cases amazon is alone in being the only party that can be sailed into court after a defective product has caused damage or personally injury to light there are however a couple of factual legal issues that the steve wish this particular case from others and that's what i'd like to focus factually this case is distinguishable from some of the other cases and that includes a steiner decision that mr murphy just provided to you last week because it involves the fulfillment b amazon program and through this program amazon in takes an inventory of a product before a sale even occurs keeps possession of it until sale processes the sale and then packages and places the product back into the stream hummers so there is this additional layer active participation in the sale and distribution of the product and doesn't exist in some transactions on the legal side of course we're dealing with arizona law which is something pret prior federal circuit court has addressed in these amazon cases now with that said i did receive the court's order last week requesting that we be prepared to talk about the issue of certification to the arizona supreme court and if i can jump right into the water on that issue now your honors and i'd like to do so now given the introductory language of the tourist decision from the arizona supreme court i understand that this is why  under various cases in this circuit including cream in versus cohen this court isn't required to certify questions unless an issue has not been resolved by state courts and as i say as this issue been resolved by arizona state courts i'm do believe it has your honor because we are talking about a retailer and i will get into that in a little bit more detail later on here because we aren't talking about the issue like a license or such as and or as we're not dealing with the issue of an auctioneer this is something involving a retailer and i believe that amazon has a retailer for the reasons that i won't get in and for that reason  believe that we're not really treading into territory where arizona president doesn't provide guidance so kind as your question if this were a brick and mortar retailer is your position the arizona law is clear that if this if this had been purchased of the reported been purchased from you know sears or or or brick and mortar company that there would be strict liability to that retailer absolutely your honor and i think the case law makes clear even when you look at the decisions that we at will be discussing here today be a grub where you have the winds or you have the the co operative  the hardware store in that case which was i believe the hardware that that that defendant was named as a in strict liability in dealer department stores of course dealer department store was named in strict liability and it's all because they have this interface with the consumer they are heard of the stream of commerce and similarly here your are if you and amazon says it doesn't and doesn't play a title there's at least a gap there isn't there there is a gap in the sense that they don't take title and as we address in our brief this this process that they use to facilitate the sale as they call it is really no different than what a retailer does the only difference is they take a commission on the sale rather than take possession and then mark the product so on and object of basis if you are a consumer if you're purchasing from amazon it's really no different than if you're purchasing from a brick and mortar store the only reference is that argument and functionally they were they were in a very similar fashion but as your colleague across the aisle has pointed out there are lots of cases that have found that difference to be one that matters well in this case if you are looking at the arizona precedent there is a lot of factual distinction between those cases and you don't have the direct interface with the consumer such as the such as in the case of the cooperative or the roker and in the case you have to start talking about  cases and you want us to draw some it makes me have that much more skeptical that arizona law gives a clear answer so we should jump ahead and answer this question for ourselves well your honor i think that the guy he says there  if you look at it and if you think this guy is there and your colleague thinks the guidance is there and we think the guy who's points in different directions know we're used to that it happens all the time but if this is it is you of state law i come back to the original inquiry we're not supposed to be making decisions as they law that's for the state courts i'm still waiting to hear other than the fact that you think maybe you can win without going to state court and maybe you're not optimistic about what the arizona supreme court will say but i still haven't heard why we should jump or with making a decision ok well if i may if you take a look at the dillard decision because that does a good job in articulating what that line is between a stellar and something that should not be considered a seller and state law and the dealer decision cites what it calls the dual concepts of profitable venture and preventive action in determining when the public policy considerations for section two a so if a party is part of the enterprise a court should determine whether the party is profiting and whether it is in a position to take measures to increase safety with respect to the product went fo and our brief list all of the ways that amazon participates in the enterprise and i detail them all in creates the website selects what vendors are allowed to sell in the market marketplace with the fulfillment by amazon programming of the product and amazon that super engine conducts the sales transaction so it's got this participatory connection to the street but it's also in a position to take preventive measures and as we note in the brief amazon monitors product quality hold dangerous products issues warnings it handles returns so it has this power to prevent dangerous products from reaching the consumers i it's a village ability to shut off that amazon is a seller for the purposes of arizona law so this isn't a cheese where amazon simply picking up a product and delivering it to an address like u b s or a fed ex and it's not a case where amazon simply processing a here and the district court was on to novo review here so the district court said well what i want to do is i want to look at all arabs only cases i want to put them all out there and i want to see what they said and i want to look at what the factors are in determining if the out of these purse protest pay significantly in the stream of commerce and therefore subject to strict liability and then puts pick seven factors and found those seven factors in the different cases in arizona and then analyzed those factors and came down with a decision i'm trying to figure out why the district court's decision why that analysis did and i went through the district court's opinion and frankly i'm having a tough time understanding why shouldn't do the same thing well your honor there are a couple of issues and it's discussing  it's discussed in your brief but frankly pick one of those because i mean i i'd look at no warranty yeah no rate refunds were provided but the rd party sellers gave them the funds to mean i'm trying to go through each one of those seven factors and i frankly think this record came out pretty for pretty fair if we don't send it over to the arizona supreme court find out what the answer is what you give to amazon any amounts they have to do in a refund so i don't think that this record was wrong well your honor you have to look at it in light of the amazon prime program and also if i am on  factors that any one quarter of said are the factors but the district court like i would need to do would have to look at all of the arizona cases that have been on this kind of an issue and they would have to see what the factors were that they measured in that and then they would have to apply it in this particular measure or they'd have to but one case above another and so what the district court did was say ok arizona has got all these cases all but all these factors together i'll go through and see which one may and which one makes which one doesn't and in effect i want to know when the when and that's what i'd have to do given i'd brief point out all of the things they forgot to do is there anything you want to add to that because if so i have seriously looked at what you have suggested in your brief to determine if  is before you today in terms of the transaction and the processes that were involved in it in d amazon's sale of that product as well  by directly addressing the court's question about why it should make a decision rather than certifying to the arizona supreme court the reason the court can make a decision here is that there is sufficient material in arizona law to to analyze the issue and come up with predict exactly what the arrows on the supreme court and intermediate appellate courts would do while there's no decisions where really on the issue of amazon in arizona as there isn't in the number of other places there is a supreme court case that sets or the mode of analysis for determining who is a cell are circumstances like a trademark license or worse so muddied does not fit the traditional common sense notion of selling taking title setting a price and so forth that mode of analysis requires the court to look at whether there was significant purchase a patient not just a transaction but in the overall process by which a product is control over the incidence of manufacture and distribution and the you know its horrors dealt with a trademark license or the intermediate courts of appeal in arizona have addressed a very similar situation involving market places or companies that provide services that bring together buyers and sellers or otherwise assist in the sale of products the most on point is the end zone the car auction case so it was a large involved a very large marketplace the court at one point says it's one of the largest subsidy representation that is one of the largest options in the hours the area as in this case the auction and then tone had possession of the product and stored it it's a possession in the night before and that he actually did at auction really doesn't gauge in the act of selling it's just doesn't happen to set the price what's more and what sets amazon even further apart even from the example hand own is that an so on offered an inspection program where the auction ends on offered inspection program amazon does not inspect products in the program sellers who use the service and it's an optional service and it's a service available to sellers who sell entirely off amazon dot com so it's not it's not necessarily tied in with selling using amazon dot com the sellers who send their products into amazon send them in full the packaging assembled and they're put on the shelf and then when a buyer orders the product on the seller it's taken off the shelf and either shipped its own container or put it a a box and an shipping label is applied so to return to the mode of analysis used in torquay when i ask about to make crystal clear what that distinction is amazon is not suggesting that it would be it would not be liable in a situation where it is the retailer amazon does sell some products and amazon dot com and in that situation it's very it's just like the brick and mortar situation hamazon sources the product owns the product puts a price on the product and offers a personnel and amazon is identified as the seller on amazon dot com and all associated or rd party is completely different rd part are responsible for sourcing their product owning their products putting a price on their product and offering the product for sale and describing their products but to return to your question about just the analogy would be analogy s in a brick and mortar context where they just take anything that their bodies are comes in and they take the mission off that would that be the appropriate comparison in a brick and mortar gun here no it wouldn't because  consignment seller actually does up the price they take they take things in they don't as legal title but like and simon sellers say or this couch is going to be three hundred dollars or you know whatever the price says and there's actually a comments in the arizona of section nine hundred and one makes clear that just having possession of shipping on something that's not a consignment sale so that is so arizona law does distinguish between those those things so try to look and i know this came up in the  but there are really considering situations where a product got to a customer in a non sale situation and it is true that a lot of states have extent strict liability to us stores and some to bail ours and in those cases those are not title transactions necessarily but here are the product reach the consumer through a sale so it is appropriate to place a greater weight on title ownership in this particular case and really in cases of all the rd party sales on amazon actual entity so i get the distinctions that you've been trying to draw and the arizona law has grown in different contexts but i don't see and he's from arizona th reading of torah as i don't think that controls and in fact it says right am dora's or must acknowledge the realities of the marketplace when it decides ace and i defective product by having placed it into the stream of combers and then what it means to having been placed in the stream of commerce is is a tough thing and that's where the district court case now i don't know why the district court or i i'm in a better position to make this decision than the arizona court based on what i pointed out to you those cases put together and it came down in your favor and i said to myself why is that that this district court or i am in a better spot to make this decision than the arizona well i don't i mean i don't know that of federal circuit or would ever be in a better position than a state court so to say what state law is i can then why don't we do that over there but because there's sufficient material in state law there's a you know the state supreme court decision that says this is what the sellers and just to go to the realities the marketplace language that you're citing on page nine hundred and forty four dollars of torres that comes immediately before the paragraph where the court has basically examining the overall apparatus in which this product is manufactured licensed and sole so i guess court is talking about in the realities the marketplace is that goes to the overall process and what quite us are trying to do is shrink the frame of reference in judging what is significant significant in that white but what torres makes clear with that reality is the marketplace is that the frame reference needs to be broad you need to walk and see how is this product made how is it distributed and that's where the plaintiff has no evidence whatsoever there is no evidence that amazon had anything to do with how those products are going to factor there is no evidence amazon anything to do with how it's distributed other than providing one of many possible ways a seller may on its own volition choose to to have some sort of control over the band of actual ring of the product and i think that that is a bit of an overreach i think in the specific instance of or as you were talking about a license or and sells the product has some sort of obligation to control the manufacturing in order to be held strictly liable it even grob the case that mr murphy sides that hardware store that at it individually so if you look at what amazon does here in an objective sense whether you consider it an intermediary or a retailer it's in the business of selling the product and that's that statutory definition it's an active in it's a significant participant how that product reach the consumer and for that reason your honor knew that the district court erred in determining that it was on can't be liable