com the court should reverse and direct and career judgment in favor of amazon because the district court exceeded the bounds of established texas law and deeming amazon the seller of a product sold by a rd party and exceeded the bounds of federal law adopting a new theory of solar liability that the texas legislature and texas supreme court out not embraced that theory essential a was that one can be a seller by providing services that involve possessing and delivering the product and there was never really any dispute that amazon itself the dot sell the product the district court acknowledged that the actual seller was named already but was never served and it also acknowledge thousand and fourteen of the record that amazon was a service provider what it did was tried to was use the place seen in the stream of commerce language in the definition of seller under the common law  the possession of the the concept of otherwise place seen in the stream of commerce is was addressed very clearly by the texas supreme court in the new texas auto case and that case is significant  not just for its analysis but also for the type of entity that addressed the auction in that case was selling cars and auction sells cars it actually it was us the cars and it provided the all the machinery th her and in fact it often suction service for cars of people wish to pay for that so there was actually a lot more extensive contact with a product then happened here so the results alone of new texas auto where the supreme court said that this entity is not a seller that alone should compel reversal but the court's analysis is also very significant the court explained what it regarded as placing in the stream of commerce and the main point on that is on page four hundred and four i believe it is the court says that it and the legislature a periodical use the terminology introducing in the stream of commerce and placing in the stream of commerce and it said that that terminology is intended to describe producers not just not just anybody who has some contact with a product mix specifically referenced entities that somehow introduce a product to the amazon with a restatement a rd restatement does address facilitators generally and that's restatement rd section twenty comment she which actually is is cited in new texas auto and out and that cites auctioneer's as an example of a great many potential facilitators the the big the large point of new texas auto is the distinction the court drew between placing in the stream of commerce which could be a seller a less traditional categories the manufacture of the seller the dealer the west or the provider a free sample that go back to work and mckesson and then in describing the category of entities that do not place the product the stream of commerce that's where all the facilitators come in and the and the significant point of that is it actually cited logistics providers as the types of entities that even though they may be involved in selling products do not themselves products  main level there are a lot of business like web services so forth but just look at the marketplace which i assume is what your question is asking about but that actually the majority of sales in the marketplace are by rd party sellers it is through your own reports that amazon sells some of its own products on the marketplace and in that be believe it's about fifty eight percent or rd party sales it's not in i don't believe it's in this record the place to find out though isn't just paizo shareholder letter each year he typically breaks out the the number of i believe last year was about fifty eight percent or rd party cilla taters in the restatement of things like advertisers i mean here of especially because it's a film by amazon case which i don't think is true of a lot of the other cases that have been out there you know it has it in his warehouse of process payment if it's the contact for the customer is my understanding if the customer wants to e mail questions or concerns you seems a lot more than all those examples listed in the restatement in that but the texas courthouse address the specific issue of amazon the courts that have looked at this issue have looked at f d a and generally said f b a it's just a logistics service it doesn't really change anything and with the courts that have looked even outside the f d a and the ohio supreme court is the best recent example of this have said you know amazon yes you're providing the website you're the place we're buyers the sellers need but that level that the service you provided and because the control you have over your service is not relevant for product liability purposes because you're not controlling the product that we're using now no taxes cases that really examine this specific issue not think you're right i mean amazon has a novel business model there really aren't any not do that in a case this consequential with no guide the same case law the procedural course exists and spend years before i don't agree that there is no god in case the new texas auto is pretty much on point it doesn't evolve this precise issue of amazon but the business model here is really not that different anything other than size the business model involves malls and swap meets and so forth i've done this work under sellers rate in a particular place or there's evaders craigslist there's other entities that provide a location physical or online where people need now the auction of course was not an online situation there are online auctions nowadays but the the mechanics of a sale are really not that much difference the rd parties and as an owner of the product and the the provider of the marketplace provides the place where people meet and products sources it from somewhere sets the price owns it amazon just does this stuff online at a larger scale than others so the mechanics of a sale are really not that much different from what happened in new texas auto other than the way prices  auction of course is the auction mechanism here the rd party seller such the price so they're actually i think that the reason not to certified is the new texas auto provides the analysis  the district court's error was to shrink new texas oddo down to its smallest possible fact which was the fact that the auction there took title due d to a quirk in the odometer history and it disregarded the analysis about of the things that so that was not about authority the other mistake that the district court made was using the fresh coat and centerpoint cases as a springboard to say you don't have to be selling it is enough to provide service them fresh coat was a subcontractor it bought the siding system and installed them so those cases are about entities that they're themselves sellers but are also provide services so they really don't have anything to do d with the issue in this case so what they did the only real way to establish that amazon was introducing a place in this product in the stream of commerce was to place amazon within one of the categories identified consumer through a sale so it is of course true under texas law that you do not have to convey title to be considered a seller for liability purposes but that principle just means that there are other types seller like things like l who can be treated as sellers it does not tell you to tell us that title is somehow irrelevant to a transaction where the product reach the consumer through a sale and the texas law there's a good deal of texas law that tells us exactly what a sale consists of under the commercial code to dash one hundred and six sale consists in the passing of title from the seller to the buyer for a price and when we look at who had taught it all it was the rd part are not amazon and the texas supreme court recently emphasized the importance of title in the hagar vs american multisystem cinema case which is six hundred and five south west rd thirty five where three and the to the extent that there are gaps to fill that job or the gap flowing is to be done by the legislature and the legislature actually has been actively involved in addressing the rules that deal with marketplaces in two thousand legislature adopted a tax provision that defined marketplace sellers d facilitators and so forth and explicitly treated marketplace providers as sellers for purposes of collecting tax in everything we talk that doesn't distinguish between scrawling for an item in a store or strolling d through store and when mr gartner went to on amazon dot com and he picked out this remote an placed it in his online shopping cart and then he went and checked out of this experience if you can imagine this if this experience to a place within four physical walls the only difference between that and what happened  own agreement and that's not all post purchase the other day you get a deal through amazon you can't even deal directly with this mysterious mr into the saloon in china or many facts that they have to go through amazon and so it's a of itself it's a one up yes it's an extremely unusual situation where notch near was ordered by the arbitrator to actually take idols for the car and it what's interesting is you can actually think that case to understand that title is not critical to the discussion of whether or title absolutely not know and that's discussed again and again in the cases but you've got to be engaged in the business of this option here was never in the business of selling directly cars that it owned it was forced by an arbitrator to do this really unusual situation and so you know that there was litigation over in the courts of awareness and this is really really different but then they analyzed a lot regards to checker he too and they came up with some some important things that we think actually make texas law very clear you've got to be in the business of selling it can't be merely incidental which clearly wasn't the situation with the seventy's it can't be a one off and title was not the deciding factor and those are all from new taxes on so texas law what what amazon is actually seeking in this case is an exception to texas law for the way they practice business not an application of texas law they want to have this exception that none of these other texas businesses get if they get an advantage over all these other texas retailers mom and pop stores best buy anything ask you about some other um businesses would you say  sellers when they're in the business of selling food selling delivering food to folks i don't admit i don't use those that are some familiar with them but it really is going to be fact specific a center point says you look at the facts in any particular case so sure in certain situations a grub could become a lot of if they have if they a zest if they if they control the situation and they put it in the stream of commerce certainly better you that's a complete red herring because then you go back to what i just discussed you gotta be in the business of selling so amazon is in the business they've got a ton of remotes on their on their website that's what it is looking for they're in the business of selling remotes u p s that x is not in the business of selling the products they're manufacturer mr who they chose not to do that that's in there that's how i'll think amazon a lot of their argument is well you know we're the innocent retailer but they're the ones that shows to do business with this mr here and  sell that product which was in clear violation of the safety standards and that's why this but better he popped out unharmed the so they have every right to deny any of these potential manufacturers from overseas the right to use the amazon service and they chose to have to do that in the situation or effect after this happened they reached out to it's us and shopping is mr whose company and they disappeared this do think the texas law is clear and that what amazon's doing is they're really twisting things they're trying to make it seem like tax law is unclear and create an exception for amazon rather than if you look carefully like judge gilmore did they fit the definition of a seller assure us that these laws were created way before e commerce became so huge that the laws of said we would i mean texas i think is the california decision other than the california intermediate appellate decision as any state said amazon in this situation is a seller and i understand each stain as their own definition of seller and all that i also understand the facts in these cases are you know sometimes there's more or less involvement by amazon but which is big picture generally what i'm looking at the only that california in a media is always the only state court is it's held in favor of a plane is that right well there is the the given its u p s and sending it on its way so we think that we would prefer that the court looks to this case not so all these other cases that although we do like the decision was just recently done well they do not have like a document that says we now own this remote but they did have that document like i showed you where they have the power to transfer the title to the buyer and so there's entities actually want to be sellers it's kind of our own that and so the court is saying well of st point we're going to give you a seller going to the right of indemnity against the manufacturer and centerpoint they said no but i don't think there was discussion of agency in this case there was there wasn't a whole lot of discussion about price but there was an extreme case that you can refer to as apple versus pepper where they were there was some discussion about setting the price was important and the u s supreme court said well i mean come on apple is the one that is essentially setting the price and and you can't gerrymander around the laws in order to exclude yourself from in a trust laws and that's another thing that's a danger in finding them in favor of this exception that's one of the amazon is that now that encourages all these other companies like wal mart be that there's already starting to copy amazon's model to gerrymander and twist things to basically consumer products laws to protect their customers instead of us markets can get clouded with these knockoffs that are dangerous and that are not in compliance with u s standards there any anything else counsel well i'm just in conclusion if i might remind the poor strolling or strolling texas all that just doesn't matter and the reality is that a huge amount of commerce is performed every day in this manner we've got to look on this as a case by case basis we've got a seven a piece this is not a mere incidental action by by ems on where they're facilitating the stream of commerce not just paddling in the stream they are there are intricately involved in the sale of this remote this is a product it's not a service that was involved here this guy just amazon's in the business of selling this product or the texas product liability act that permits a court to base seller status on possession and the auction case prohibits that because the auction possess the product that that is the conclusive answer under texas law if possession  enough the auction which d possesses and is basically engaged in selling us this business would have been regarded as a seller now plaintiff like the district court says that the auction case is really just about the occasional that's not true the argument that the plaintiff made in new texas auto was this unique quirk of taking title takes us out of the general rule and the court rejected that and to do that it had this general rule applies to th that deals with the i mean of the transfer of title doesn't deal with who has title the correct provisions could deal with who has title are in the business solutions agreement which is at our two hundred and ninety three and our two hundred and ninety seven the specific provisions are provisions six two provisions f seven point two and provision f fifteen those provisions make clear that title d resides with the rd party seller not amazon even and those are a specific provisions of the business solutions agreement the judge will ask about whether product liability law requires holding title of course the answer in general is no because armstrong title is absolutely relevant under texas law new texas auto cited resave and rd section twenty d a part a which defines selling in terms of title and that puts texas last squarely on line with the th or th circuit's analysis of maryland law in the d erie case speaking of the case of the address amazon i mentioned steiner earlier that's the case where the ohio supreme court in the seventy and in there was one separate opinion on the point that the legislature might want to look at things but the result was seventy where the court said that amazon provided by providing a website where the rd party seller sold caffeine powder that caused the death of a teenager in ohio amazon does not have sufficient control and the key part of that opinion is ohio has a statute d that uses some similar language texas but it's actually a little broader at the ohio statute bases supplier status on certain specific acts but also use of the language otherwise participates and placing the product in the stream of commerce so it's a little bit broader and the ohio is a collection and there's so many cases i might have this wrong my recollection is the