Amazon ruled liable for Prop. 65 disclosure failures

Amazon.com Inc.'s failure to warn customers about the danger of skin-lightening face creams containing hazardous levels of mercury was the subject of a bench trial that went very wrong.

Plaintiff trial lawyers Rachel S. Doughty and Jessica L. Blome of Greenfire Law PC sought to persuade the court that Amazon must be held accountable for offering the products on its website without Proposition 65 warnings.

But Alameda County Superior Court Judge Robert D. McGuiness ruled that the lawyers failed to establish their case and that, anyway, Amazon is immune from liability under the Communications Decency Act.

So Doughty and Blome teamed with veteran appellate counsel Jonathan D. Weissglass. They persuaded a state appellate panel to reverse McGuiness on five separate and independent grounds. The state Supreme Court denied review. A retrial is set for October. The reversal was one of The Daily Journal's Top Verdicts of 2022. Lee v. Amazon.com Inc., A158275 (1st DCA, op. filed March 11, 2022; modified April 8, 2022).

Doughty, who founded Greenfire Law in 2011 as an environmental and land use shop, launched the Lee case two years later. "It's occupied a large part of my legal career," she said.

In an 80-page opinion, Justice J. Anthony Kline of the 1st District Court of Appeal detailed the many ways that McGuiness was mistaken. Said Doughty, "I was very happy about that opinion. It was validation after all those years."

Weissglass, who has practiced for 25 years, said, "I've had some big wins, but this one was at the top. There are arguments on both sides, of course, and sometimes judges do get things wrong. I was optimistic once I delved into the record, but to run the table is hard. We had to get five different rulings reversed. Amazon only had to get one of those five sustained."

Blome, a Greenfire shareholder who joined the firm while the Lee case was in its lengthy pretrial stage, called Amazon a tough foe. "They fought all our discovery requests and they fought our request for preliminary warnings regarding these products. They did a decent job explaining to the court how a loss would be catastrophic to their business model. The judge seemed uninterested in our theory of the case, that Amazon was liable under Prop. 65."

At one point, the trial judge demanded the plaintiffs produce a witness who had actually been injured by the product. "But Prop 65 is a warning statute, so we thought that was a pretty good issue for appeal," Blome said.

And so was the Communications Decency Act defense. The CDA does not immunize Amazon, the panel ruled, and its online marketplace is subject to the same requirements as any brick-and-mortar retailer and, therefore, must comply with Prop. 65.

That extends the ruling for online sellers to many other California protection laws for which they have claimed immunity, Blome pointed out.

JOHN ROEMER