People Are "Total-ly" Suing Amazon for Counterfeit Eclipse Glasses

Those of you in the Nashville, Tennessee area remember the total eclipse that occurred last week. For two blissful minutes (or eerie minutes, depending on your perspective), the sun disappeared, the birds stopped chirping while the cicadas started, and there was a sunset on every horizon. After a flurry of "eye-popping" prices for eclipse glasses, some unscrupulous vendors began peddling counterfeit glasses -- glasses that would not protect your eyeballs from the wonders of science. But is Amazon truly at fault?

First, what exactly does "counterfeit" mean?

Think of a counterfeit item as a forgery or a fake. A counterfeit product is made with the intent to mislead  the purchaser into thinking he is purchasing something authentic.

What happened with Amazon?

The first thing to remember is that the American Astronomical Society published a list of reputable vendors of eclipse glasses. "What you absolutely should not do is search for eclipse glasses on the internet and buy whatever pops up in the ads or search results," the AAS said. In other words, don't buy glasses just because they say they're eclipse-friendly, and don't just buy the cheapest thing that you can find.

At first, Amazon began recalling glasses after it was unable to confirm that the glasses were made by reputable manufacturers. Then, "out of an abundance of caution" (legal speak for "just letting you know, even though we have no obligation here"), Amazon began emailing customers alerting them to the counterfeit issue and offering refunds to individuals that purchased phony goods.

Enter Cory Payne and his fiancé, Kayla Harris. They allegedly purchased eclipse glasses on Amazon that were no good, wore them, and suffered debilitating consequences.

Do Amazon's Terms of Service come into play?

They absolutely should. Remember that, generally speaking, by using a website, you agree to its Terms and Conditions (also known as Terms of Service or Terms of Use). Amazon's "Conditions of Use" have a number of terms applicable to this lawsuit. First, the Conditions state as follows:

Amazon attempts to be as accurate as possible. However, Amazon does not warrant that product descriptions or other content of any Amazon Service is accurate, complete, reliable, current, or error-free. If a product offered by Amazon itself is not as described, your sole remedy is to return it in unused condition. 

In other words, Amazon does not guarantee that descriptions of products are accurate or reliable. Period. The Conditions also contain some standard disclaimers of warranty, including disclaimer of the "implied warranties of merchantability and fitness for a particular purpose." So right away, the plaintiffs have some issues to overcome. Another, more obvious issue is that the Conditions contain an arbitration clause. The arbitration clause states:

Any dispute or claim relating in any way to your use of any Amazon Service, or to any products or services sold or distributed by Amazon or through Amazon.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. As you can see from the complaint (the document that initiates a lawsuit), the suit was filed in South Carolina federal court. Again, a problem for the plaintiffs.

The Point: Amazon not only has deep pockets (always helpful when it comes to litigation), but some fairly clear terms in its Conditions of Use that should help its case. But when does "buyer beware" come into play? TechCrunch reported that a woman purchased 500 glasses in bulk from a Chinese manufacturer that told her the glasses were safe (they weren't). It's also worth mentioning that Mr. Payne and Ms. Harris filed suit against Amazon but, notably, did not name the actual manufacturer of the glasses as a defendant or wrongdoer. Interesting, isn't it?