 So I'll do Sarah, so I'll take notes here and if I have something, it'll be on the right. Same. More than we'll still be. Yeah. Yeah. No, I totally agree. Yeah. You know, one. 45 minutes is. Or do we do a little bit of. We'll see. Yeah. Right. You ready? You ready to go? All right. Okay. Well, good afternoon, everyone. We're here for consumer products, safety commission. Docket number 21 dash two. This is a matter of Amazon.com incorporated. When we start with appearances of counsel. So for complaint counsel. Yeah. I'm John Eustis and with me are Liana Wolf, Serena and on. And Howard Tarn. All right. Thank you. And then for Amazon. Good afternoon, your honor, Sarah Wilson for Amazon. I have my colleagues Stephen Anthony. Afternoon, how are you? All right. So we're going to hear. Your argument on the parties. Motions and I think the way we set this up is. We're going to have 45 minutes aside on the merits issue. The complaint council going first. We're serving some time. And then. And then the remaining 15 minutes aside on the other issues with. Amazon going first. Is that acceptable to both sides? It is wrong. Okay. So, oh, one other thing since. I guess there was a question about mass of the podium. I think you probably take mass off of the podium. But that's fine. But. So you can enunciate. And if you're using some, you know, unusual words or case names, which you might not be familiar, you can spell those out. So do they call to her and for the record as well. So unless there are any questions, we need to address before we started. Mr. Eustis, I think you're up. Okay. We do intend to reserve approximately 10 minutes for. Good afternoon. We are complaint council in this action. We filed this case to compel Amazon to take remedial action. As a distributor of three categories of products sold through its fulfillment by Amazon or FBA program. Carbon monoxide detectors that do not detect carbon monoxide children's sleepwear garments that fail mandatory fungability standards and hairdryers that lack immersion protection and therefore create a risk of electrocution hazard. These collectively are the subject products. Our motion for partial summary decision establishes that Amazon is a distributor of these consumer products under the Consumer Product Safety Act, the CPSA, based on an undisputed set of facts relating to Amazon actions and its FBA program generally as well as its specific actions with respect to these subject products. Mr. Eustis, has the commission ever interpreted the term distributor or the term third party logistics provider? Interpreted the term in terms of in what way, Your Honor? Okay. Is there any case for the commission or decision of the commission's issue where the commission said this is what those terms mean? I don't believe I can point to a specific case where the commission is opined on exactly what it means to interpret it other than what are the words of the statute. But, Your Honor, I do want to mention that my colleague, Ms. Wolfe, will address the statutory language at issue and explain why Amazon is a distributor of the subject products and not as Amazon contends a third party logistics provider. I will then turn to the products liability case law and how it applies to this matter as well as the practical reasons for holding Amazon accountable here. And following Amazon's presentation of its motion to dismiss, my colleague, Ms. Anand, will explain why this particular case is properly adjudicated and does not run afoul of the Administrative Procedure Act and I will deal with Amazon's mootness arguments explaining why this matter must be decided. And with that, Your Honor, I did want to hand the baton off to Ms. Wolfe, unless you have further questions for me about the structure. My bigger picture question was, as I just asked, it sounds like it hasn't been interpreted before. And then I was going to ask how potentially far reaching your interpretation is, who else is it going to encompass? Absolutely. And I believe Ms. Wolfe is more than prepared to answer that particular question, as well as how the term distributor must be read under the statute. Good. Thank you, Your Honor. So to answer your question and direct you to the statutory language, the Consumer Product Safety Commission works with this statute every day. It's very familiar with the fact that the statutory language gives it very broad authority and very broadly identifies who are the responsible parties that the agency can reach out to to ensure the public is protected against unreasonable risks of injury associated with consumer products. And applying that plain language of the statute here, we're trying to accomplish that mission. And it's actually an exceptionally simple case. If you look at Amazon's expansive role in commerce and the expansive role that Amazon is playing in getting these products into the hands of U.S. consumers, they should be responsible as a distributor. The plain language of the statute sets out a very broad definition of distributor. And we pointed to you. What are their aggies for businesses? What are they? A number of entities, Your Honor, it obviously varies by industry. There's no one classic example of who is a distributor. The agency is used to reaching out to whichever party in the particular circumstances regarding the particular products is best able to address the hazard at hand. Can you give me a real-world concrete example of another business that would be a distributor or a third-party logistics provider? Well, sure. Any entity that falls within the expansive definition of distributor as set forth in the Consumer Product Safety Act, it just needs to be an entity to whom a consumer product is delivered or sold for purposes of distribution and commerce. Federal Express, UPS. Is there going to fall on this definition, too? No, Your Honor. And that leads us to why this is a very... Amazon is trying to make this about the third-party logistics provider definition, which is very narrow, and it pairs up and marries with the exception in 2052B. If you back up and look at the distributor language, it broadly encompasses entities that are introducing items into U.S. commerce. They're holding products for distribution within commerce. Isn't that what put action with the S&P? Those, Your Honor, would fall within a narrow exception, and that's why Amazon is so distinguishable from those entities. If you look to the 2052B exception, it plainly says that, yes, those actions that they're engaging in could indeed be distributor actions, and they are because they're holding products for distribution, but they fit into the carve-out because 2052B gives them an out saying if you're operating as a carrier or a forder, Congress has made the decision that you're in that narrow lane, and you won't be deemed a distributor despite the actions that you're taking because you fall within the exception as a carrier and for a forder. Amazon does not fit within the third-party logistics provider definition to even make you move to 2052B. A third-party logistics provider is a very narrow scope. It's a very narrow lane that Congress decided to set out when it looked at the fact that in 2008 there was another type of comparable entity that these carrier entities engaging in transportation-related functions, and they're operating as third-party logistics provider doing that during transportation logistics. Hold on. You're telling me that's what Congress had in mind that enacted this language, third-party logistics provider language? Well, I'm saying that the statute sets out broad power for the agency to reach responsible parties, and if you're doing any type of introduction or holding, you fall within the distributor definition. And Congress already had 2052B set out for common carriers and contract carriers, and those types of transportation carrier for your entities. In 2008, Congress didn't make a sweeping change. I'm saying all the legislative history we pointed you to, so it's that they're trying to keep the broad power in the agency in a little technical amendment they added, and they clarified this is exactly who's going to fit into a third-party logistics provider definition. If you look at the Senate report and House report, third-party logistics provider is not mentioned at all. No. It shows up seemingly out of nowhere after the pomp and reason. So that's what I'm trying to figure out is, why did you include this language in the statute from looking at the legislative history at least? That's why you have to look at the purpose of the act, the purpose delineates. It's trying to broadly empower the agency to reach responsible parties to remedy hazardous subject products, hazardous consumer products like the subject products. This tiny little narrow exception certainly wasn't meant to turn the entire statute on its head and sweep in all kinds of entities. That's exactly what they're including in this. They're including entities who solely receive hold or otherwise transport. If you look up logistics, it's transportation-related activities. These are companies that sit on the back end. They move a product A to B location. They're not companies that you go to their website and you do online shopping. They're not companies that are doing, you know, they're handling the consumer products, doing 21st 7th customer service. You don't call them about. How is what you're describing different from being a common carrier or contract carrier or freight tool? What's the difference between those three things and a third party business provider? Sure. Well, they share similarities, which is why they nest together in 2050 to B. They're entities that are somehow transporting the product. The consumer product safety act does not define the common carrier, contract carrier, freight forwarder, but there are definitions set out elsewhere, and the code of federal regulations at title 19 and a common carrier, someone generally available to the public, anybody can go to. What's the difference? I mean, why did Congress put a similar, I mean, presumably, as Ms. Wilson has probably already argued, there's a reason Congress put a similar. So what's the difference from that phrase and the other three phrases? Well, one of the cases that we cited to you, Your Honor, in our briefing, it says to you that I believe was the public citizen case, but it says that Congress can act to add clarity. Those common carrier, contract carrier, freight forwarders, they weren't defined. But in 2008, certainly there were entities calling themselves third party logistics providers, and Congress put in a definition to say, okay, okay, well, this is what we view as a third party logistics provider. Someone who solely receives, holds or otherwise transports the product. If you do that, you fit within this narrow exception, this narrow definition, and you can claim to have an exception under B. That's what they're doing. At the same time, it didn't give us a definition of common carrier or contract carrier or freight forwarder. No. But common carriers are generally available. That's UPS. That's FedEx. If you go to anybody in the public, you can go to them and say, here's a package where you ship it for me. They're generally available. Contract carriers are kind of viewed more as they contract with an entity, one particular, one or few parties, like trucking companies that work in a geographical area. And freight forwarders, they're generally, they're companies that can help with transportation internationally and customs paperwork. But Congress tells you what is a third party logistics provider. Amazon is big. Amazon doesn't come close to fitting solely. All you have to do is solely receive, hold or otherwise transport. That's the plain language. Statutory interpretation begins with the plain language of the act. And if you look at the plain language, it says a distributor introduces into commerce, holds products for distribution, that's what Amazon does. It says a third party logistics providers on the transportation back end of things. They solely hold, receive, hold or otherwise transport. That's not, that's not what Amazon's doing. I mean, all you have to do. Hold on, hold on. So a third party logistics provider cannot do anything other than receive, hold or otherwise transport. Is that your perspective? That's what the plain language of the statute says. That is, as we pointed you to the Supreme Court's instructional case in Helverling, the Supreme Court said the same thing, solely leaves no leeway. It means plus something else, put you outside of the scope. So can Amazon inspect the goods? The manufacturer makes the goods, shifts them to Amazon as part of the film-up by Amazon process. Can Amazon inspect the goods? Make sure they receive the right goods. Well, what Amazon's doing exceeds the scope so far that we don't need to engage. Can an entity that is, that fits within your definition of third party logistics provider do that? Can it inspect the goods and make sure they're in the right goods? But that's not the question before the court year-on-year. Can it do that? If it exceeds what Congress has defined, if they do something other than solely receive, hold or transport, that puts them outside. That doesn't mean the agency will exercise its discretion to go after that agency, but certainly the agencies of power to do so. I'm trying to figure out what the language means, and I'm trying to figure out how broad they are in the class. I've never done an interview before. I don't know who else is going to encompass. Oh. You're moving, you're moving to summary of this position on an issue. Similarly, at first impression, I imagine you're aware of cases from the courts of appeals, but the courts of appeals have said that the district courts abuse their discretion when they grant some of the disposition on issues of first impression of potentially wide-ranging impact and I'm trying to figure out how wide is the impact. Oh, this is not a wide impact case at all. This is a routine agency action where the agency is operating under the plain language. That is what a court is supposed to do. A court is supposed to look at the plain language. The plain language says you do all of these broad activities you are a distributor. Look at the plain language. Here's the definition of third-party logistics provider. Do they fit? No, because they're doing, they're working to store. They're having an online store where you can go shopping. Hold on. So if I'm trying, I'm a company, I want to be a third-party logistics provider. Can I inspect the business? Well, you could receive, hold and transport the products. If you do anything else, the agency would have the discretion to engage with you and decide looking at the big picture. Looking at the big picture, that's another issue for another day, which this case isn't getting to. Well, that's my question now. So it sounds like what you're saying, I know you don't, it sounds like you don't want to answer it, but it sounds like when you're interpretation, if that purported or attempted third-party logistics provider inspects the goods, maybe looks at them and sees if they work. Now they've done a little bit more than solely and no longer a third-party logistics provider. Well, the language says what it says and we have to assume it's a canon of interpreting statutory law that Congress means what it means and it says what it means and it says solely. You solely receive hold and transport, and there are entities that do that. There absolutely are. I mean, just speaking of entities that the agency is familiar with during the recall process, if a company is doing a recall, they can hire a third-party logistics provider to assist with those transportation-related logistics of taking the products from the manufacturer and taking them to company B. Company B is going to destroy them, repair them or refurbish it. That's it. They're in the business of providing transportation logistics of moving products, which Amazon is not doing. You don't need to go down that line of what is one step over, what is two steps over, what if you have your toe over the line? The plain language interpretation for the court is to enforce it as it's written. Amazon fits the distributor. It doesn't come close to solely fitting within the third-party logistics provider, and that makes sense when you look at 2052B because they're just not operating as a carrier or a forward carrier. If I go through the analysis, and for some reason I go through the analysis, and it looks to me like, oh, doctors and I don't know, elevator attendants would fall within the definition, and that would make me a distributor, and that would make me think, okay, I need to reassess. That's why I'm asking what other entities would fall within the term of third-party logistics provider and who would fall under distributor? The definition of your reliance on the word solely means we're possibly looking at a wide variety of entities that might fall within the definition. You're keeping the statute as it was originally drafted in 1972, and as it did not turn on its head in 2008 saying, if you engage in the acts of a distributor, you're broadly responsible. We should be able to protect the public by engaging with those entities to remediate hazards. And Congress said, this is the tiny exception. This is a definition of when you may fit in 2052B, and then, if you're operating as a carrier or forwarder. I mean, that's also telling you to take a holistic look at the company. 2052B says, you may not be deemed a distributor if you're solely operating doing these things as a carrier or forwarder, which Amazon cannot claim to be doing when they're at the online marketplace. They're approving and rejecting product listings that come up through and get listed on the FBA program. They're marketing products. They're receiving these foreign products into the United States, and playing a role in the introduction into commerce of these products. This is simple. This is a simple application of the statutory language. Where do you think the introduction to commerce occurs? Well, I think it's when, we pointed to the fact that sometimes they can act as the consignee, but these products, these subject products, there's a foreign manufacturer, there's a foreign merchant. The only entity in the United States that handles them and that receives them is certainly Amazon. I mean, Amazon receives these products. It says, So your view is the introduction into commerce occurs at some point while Amazon is shipping the products to customers. That's the introduction into commerce. It's not when the manufacturer somehow transported to Amazon's facility. Well, it's obviously distinct from importing because importing is defined in the act. But that's another reason why the language of distributor is broad. It's meant to encompass when they're introducing into commerce and regardless of where you draw that line, the products are broad. They come into the United States through Amazon. We need to know when that is. We also have a definition of distributing commerce which talks about users that were introduced or introduction three times. So when does that occur? Because that's going to affect how I interpret the phrase distributing commerce. Sure. Well, it's when they come into the United States and they're released to Amazon and that's the path that these products take. I get that. When is the introduction? What's your position on when the introduction into commerce is? Well, I think you don't need to concretely decide that because they're, you know, the holding is sufficient. You're walking down and accepting Amazon's argument to rewrite the language. Look at the language of distributor. The distributor says your distributor if, let's see, a distributor is a person to whom a consumer product is delivered or sold for purposes of distribution in commerce. So what's distribution in commerce? So you go to distribution in commerce. That means to sell in commerce to introduce or deliver for introduction in commerce after introduction in commerce. And so I'm trying to figure out where you think the introduction in commerce occurs because it affects how I interpret these words for these phrases. So when, what's your position on when it happens? Okay. I understand that. But I also want to remind you that they are taking key distribution actions that clearly fit within the language of holding for distribution. But if we're talking about when they're introduced into commerce, they're introduced into the United States from abroad and their release to Amazon. That's when they're introduced. It's our shores, is that what you're saying? It's when the products come through the port of entry and they're released and sent to Amazon. Go ahead. But in any event, I mean, distribution is a broad concept as we explained in the briefing. The case law recognizes that the act contains expansive interpretations of commerce and distribution in commerce. And it sets forward all kinds of things that fit under the umbrella. And the case law also acknowledges that additional transactions fit within that enumerated language, including things like rentals and marketing. I mean, if you look at page 13 of Amazon's reply, Amazon itself admits that distributors engage in marketing. And they're clearly engaging in marketing. Whatever language you look at, they clearly fall within the distribution of commerce acting as a distributor. And they don't fit in with a third party logistics provider definition. They're not solely doing those acts. They're not doing one or two things over the line. If you look at what they're doing in full, they're not operating as a transportation related logistics entity exclusively. And they don't move down into 2052B as a carrier or a forwarder because that's not how they're operating it either. If you're trying to get 2052B, you don't go to a carrier's website to online shopping for tons of products like you do to Amazon. That's not what a carrier is. Carriers aren't marketing products on their online stores. They're not engaging as the customer service representative. Here you get a product that you ordered from Amazon. You have a problem with it. You call Amazon. You talk to Amazon. You don't do that with a carrier entity. Are you going to talk about the issue of what are the significant concerns that Amazon is going to have? Absolutely, sure. Again, I think the plain language of the statute answers every question. Amazon is trying to add a lot of complexity and a lot of confusion by distracting from that language. But if you take a step back, you're going to have to rewrite every provision to get to where they go. But there's absolutely no need for an entity to take title to be a distributor because the plain language of the definition says that the product is delivered or sold. That plainly sets up two options. Delivery of the product is sufficient as we set forth in our briefing. The plain language of delivery is to take something to a person or place. If you look at Amazon's FBA service terms, they define an FBA product unit as a quote unit that you deliver to Amazon in connection with the FBA program. That marries up perfectly. These products are delivered. The definition of distributor, the thing when you look at the definition of third-party logistics provider, you have the concluding clause that says that third-party logistics provider is one who does not take title to the product. And I'm wondering your friends on the other side have raised this point, excuse me, that your interpretation would sort of read that language out of the statute. It doesn't. What is the point of putting that language in a statute? I mean, that's a gross mischaracterization of any position of any party, party red lines and ads language and deletes language from definitions here. You're saying that you're composing to start writing what they're saying? No, no, no. I'm saying Amazon's view is incorrect. As we put forward in our paper, they're the ones that are redlining this. What's the point of that language that they're saying? It clarifies. It says you solely receive, hold or otherwise transport a consumer product without taking title. You couldn't do those actions and take title. You'll have zero chance of fitting in the exemption if you don't satisfy it. Did you say that a company could solely receive, hold or transport and also take title? Oh, sure. But wait, your your definition or excuse me, your interpretation of the word solely is you could only do these things. You could only do those things. So are you saying that you could solely do those things and take title? Is taking title some sort of inquiry concept you're actually acting? Is that what you're saying? Well, it's a matter of the contractual arrangements between the parties when they're receiving and holding and transporting the product. I'm sure that's true. But I mean, for purposes of interpreting the statute, I'm trying to figure this out. So you're saying that that can't happen but it's but solely is not indicated when that happens. I mean, in any event you read the clause as a whole and it's saying you solely do this, this and this, but not this. It's explaining all in context. It adds clarity. It's not reading out any language. This is all part of the definition of narrowing Congress's intent to narrowly define what's a third-party logistics provider. Well, okay. So taking title is not an action that one of these NAs can take with respect to the projects. Is that what you're saying? Well, you can solely what is it? You can solely hold receive or transport and take title. The definition itself is the entirety of the definition. It's saying solely receive, hold or transport, but don't take title when you do so. That's all part and parcel of the definition. You don't see the tension there that you're relying on solely but it seems like solely sort of means only, but you can also take title maybe even though it's not implicit there. No, I don't. I think the language that Congress has meaning, I think it explains to entities how you fit yourself within that definition. You can scope your activities accordingly if you want to have any chance of falling within 2052B. So I think if you take a step back, this really is plain language interpretation. If you look at what Amazon's doing, like I mentioned, they're running the online store where you go shopping. They're approving the product listings. They're marketing products. They're receiving these foreign products from abroad. They're storing them, which even they concede they put in as a distributor activity. They're processing consumer payments when you buy something they send you and let's just thank you for shopping with us. They deduct their fees from those sales proceeds before they send them to the merchants so they're taking part of that. They have fair pricing policies where they're scoping and impacting the sales price of a product. They're providing 24-7 customer service with everything. I mean, there's no way they fit within the definition of a third-party logistics provider. Okay, so you have this list of six things on pages 18 and 19 of your initial motion. Here's the things that Amazon does. Which of those did Amazon drop and be able to take advantage of the third-party logistics provider definition? Well, I think that's artificially asking for the agency to do something Congress didn't ask the agency to do. They're asking you to take a whole list of look at what an entity's doing. Look at it as how it's operating in full. Let me see if I can ask a different way then. What are the key things that Amazon does that takes it out of the third-party logistics provider exemption? Well, logistics activities are transportation-related activities only. So certainly 24-7 customer service engaging about a product problem. That's not a logistics activity. They couldn't do that. Providing pricing policies that affect the sale price of an item. That's not transportation-related logistics. Processing customer payments for products? No. Marketing and promoting products, advertising? No. That's not transportation-related. Certainly. And a key point I haven't yet mentioned is that in several instances here, the FBA program empowered them to take title to some of these FBA products and sell them itself. That's certainly not transportation-related logistics and they did that here for several of the carbon monoxide detectors and hair dryers. So there's a number of activities that clearly exceed transportation logistics. So some of those activities you're talking about are activities that occur after the customer has purchased the goods. And so it sounds like what you're saying is we're going to look at in determining whether someone falls with this definition. We're going to look past when the actual distribution occurs to other activities that might not be related at all to the actual distribution. Well we're looking at the cumulative effects of all of their actions and they're engaged at every point in the process, right up to and including distributing, delivering, handing product to the consumer. So that's all part of the transaction. It's all related to the subject products here, which we've deemed to be substantial product hazards that need to be remediated and removed from commerce. And they're certainly in the position, the best position to do that for these subject products. So storage sorting and shipping services that's fine among your list. But highly orchestrated sales in you so that's what it is. Logistics, that's not transportation logistics in any event. Why isn't payment processing part of logistics? Because they're processing the payment for consumer purchases that were made through their website for consumer products that ultimately end up in the hands of the consumer. That's not a transportation related activity. It's not receiving holding or transporting. So in any event, I think you have to back up. You have to look and remember that this act is meant to broadly empower the agency to be able to address responsible parties to remediate dangerous products that need to be removed from the market. I mean, Amazon is plainly a distributor. They absolutely fall within that category. They admit that their activities fall there. They cannot come in within this third-party logistics provider definition. That's solely doing this list that Congress identified that enables you to go to the 2052B. And even if you look at 2052B, they're not a carrier or a forwarder. You're shopping on Amazon. You're not shopping on FedEx. So we're asking you to just enforce the plain language as it's written and then I'll turn it over to my co-counsel. Let me ask you one other question. What's the relevance of your points about the difficulty that the commission has in dealing with sellers and manufacturers in other countries? What's the relevance of that to my interpretation of what these terms mean? Well, I think that falls, Mr. Eustace will address that as well, but a quick answer is that, you know, the agency has the ability to go out and remedy address substantial product hazards, and they can identify who is the most pertinent entity to engage with and hear it's Amazon. Okay. And then one other question. So this is an issue of first impression, potentially wide-ranging effects. I don't know. It sounds like you're not sure. I just want to confirm it. The agency wants, summary disposition, wants to not have a fully developed factor record on this issue of first impression. That's the agency's view. It's not a broad-ranging issue. It's the plain language definition of distributor. They fit in there and we absolutely think that that is ripe for summary decision based upon the record before the court. Your Honor, to deal with your last question first, I'm sorry, John Eustace. Yeah, I'll see you in five minutes. Oh, okay. Five minutes. To deal with your last question first, your Honor, the agency is asking for you to apply this to Amazon because we believe that that's routine. Okay. That it's not resulting in any kind of draconian reading of the statute. And I understand and I'm sensing that you're worried that our view of distributor and third-party logistics provider would somehow be a draconian reading and would not allow parties to act as third-party logistics providers. But I can tell you that that's not true. We're familiar with third-party logistics providers that deal with recalls and take possession of products and destroy them. We're familiar with parties that do things that fall within the four corners of that particular limited narrow exception. And including, you asked a question to Ms. Wolfe about whether or not a party can inspect something and when it receives it. Well, from a common sense perspective, receiving a product and confirming that it's what you got is part of receiving it. I don't think that that would make our agency go after that particular entity as a distributor. Well, okay, so hold on. I mean, you're saying that your agency is familiar with these things. What am I supposed to do with that when I interpret these phrases? I'm not going to say anything well told that the commission is very familiar with these entities, so let's not worry about it. Well, looking back, I mean, based on the record before the court, based on the admissions that Amazon admitted to doing in response to our statement of undisputed material facts, it establishes that they're a distributor. That's why we're before you on a motion for partial summary decision on this specific issue. Okay, and the application of this is not something that we think would be broad-ranging at all because Amazon so far fits within the distributor and so far without third-party logistics provider that this isn't a decision that would be applied broadly to every e-commerce provider. We have to deal with the facts that are adjudicated before you. And in this case, we brought an adjudicated action against Amazon for the distribution of three categories of goods. That's what this case is about. It's not about everything that every e-commerce provider does. It's not about parsing between whether every single activity that Amazon does in the FBA program is or is not a distribution activity, because Congress didn't tell you to do that. Yes, but as I said, if I go through the analysis and I look at and see if I support doctors or elevator attendance to follow within one of these definitions, that's going to make me think, okay, I haven't looked at this correctly. And so trying to figure out who else might be affected by the interpretation is going to help me to evaluate whether I've interpreted this correctly. So that's why I asked this question. I understand that and you mentioned UPS and FedEx. It sounds as though you're having a little difficulty answering who's going to be in which category. I mean, that's fine. You don't have to know, but it's important to me, so that's why I'm asking. No, and it's clearly important to you, and I'm going to try to give you a little more on that. I also mentioned UPS and FedEx, Your Honor. UPS and FedEx are commonly common carriers. That means anybody can go to UPS and FedEx store and ship anything anywhere else. Okay, that's not what Amazon is. And the reason that I want you to take comfort in our statutory argument is because Amazon so far fits within just does so many things. It holds itself out as so much more than a third-party logistics provider that there's no choice but for us to be empowered to be able to go after them for these things. Now the CPSC is empowered by our founding statute to go after manufacturers, retailers, or distributors. We exercise our discretion and when to go after which. You asked why we're going after Amazon here and there are practical reasons for that, okay? Amazon agrees that the CPSC's purpose, or part of it at least, is to, quote, protect the public against unreasonable risks of injury associated with consumer products, end quote. They cite that in their reply 15 USC 2051B1. Now what better way to do that than holding Amazon accountable here? Amazon is a distributor. The product sliability case law that we provided you with makes clear that Amazon's not just a distributor of products through the FBA program, but the distributor, the key cog in the chain. You're talking about the case here of the internal state law of product sliability conditions? Correct. I don't understand why I should be concerned about this at all because they don't interpret a distributor distribution problem as a third party logistics provider. That's correct, Your Honor. They're not controlling in this matter, but the reason that we cited to them, the three cases we cite were decided in the last two years and analyzed Amazon's actions in the FBA program. And in analyzing those actions they found that Amazon was a distributor and that case law for the three cases we cited didn't require a distributor to take title, okay? So there's analogous legal concepts. Are you expecting me to rely on the factual findings in those cases? No, Your Honor. The factual findings that we're asking you to rely on are the factual findings that Amazon admitted to in response to our statement of undisputed material facts. And those are an almost identical set of facts as those that were set forth in those three cases, which all found Amazon to be strictly liable. We're not asking Amazon to be strictly liable. We're simply asking them to engage in remedial actions and final recall actions, Your Honor. Thank you. Thank you. Your Honor, this case terms on a straightforward question of statutory interpretation and you're right, Your Honor, in saying that it is an issue of critical legal significance and an issue of first impression. With respect to the third party products at issue Amazon is a third party logistics provider as defined by statute and not a distributor. And the complaint seeks an order that is beyond the CPSC's power to enter and that should be dismissed. Let's start with what's not disputed, Your Honor. There's no dispute between the parties that Amazon does not manufacture. It does not sell. And it does not hold title to the third party products at issue. What Amazon's fulfillment by Amazon program does do, and this is also undisputed by the parties, is provide third party sellers with certain types of services receiving, holding storing and transporting products made and sold by other companies. The distinction between what Amazon does do, receiving holding, storing and transporting and what Amazon does not do, that is take titles of the products and sell them is central to the statutory interpretation issue before you. Are you going to walk through the definition of distributor and distributor in commerce or should I ask you about that now? No, I will do that right now. And I'm going to, in the context of summarizing what these terms meant, both in 1972 and in 2008 explain why Amazon's interpretation of the statute is the only interpretation that gives effect to all the words in the statute ignores none like the interpretation does. And most importantly places the words in structural context as part of a harmonious hold which is what this court is obligated to consider. So let's begin at the beginning. In 1972 Congress passed the Consumer Product Safety Act and created the CPSC and it defined distribute in commerce or distribution of commerce to be to sell in commerce, to introduce or deliver for introduction into commerce or to hold for sale for distribution after introduction into commerce. So let me stop you there. What's your perspective on where the introduction occurs? The introduction into commerce begins when the manufacturer the upstream manufacturer the supply chain ships the product to the distributor the intermediary or the intermediary distributor picks up the products from the manufacturer. I meant on the FBA program where does the distribution of commerce occur? The distribution in commerce in the FBA program the FBA program is outside of the distribution in commerce chain that exists between the manufacturer makes the product the intermediary distributor and the retailer. So FBA comes in after the third party seller has received the products from the manufacturer. So the introduction in commerce is happening before Amazon is involved? Yes, the introduction into commerce starts well before Amazon is involved the distribution activities in which FBA is involved take place after the product has been the product has been transferred the title has been transferred from the manufacturer to the distributor to the retailer. That is the reseller. Okay, so then if we're looking at A7 distribution commerce if we walk through that it sounds like what you're saying that we're looking at the very last clause distribution of commerce means to hold for sale with distribution after introduction into commerce that sounds like that's what Amazon is doing that's holding the products or distribution or sale after commerce. That's part of the program right? The products sit in Amazon's facilities somebody gets online they want to buy that product Amazon then shifts it off so we're in that that's correct and so that's the definition that congress put into place in 1972 through the consumer product safety act and it also created a car bow in section 2052B that read that a common carrier or contract carrier forwarder shall not be deemed to be a manufacturer, distributor or retailer solely by receiving or transporting a consumer product and so in 2008 against the backdrop of the rise of e-commerce congress amended the statute in two ways that are relevant here. You're going to, I assume you'll concede as the discussion that you're from across the aisle but we don't know exactly why congress put this language in the statute or do you know? We have come to the legislative history your conclusion is correct as posited in your question to complain council we have not found specific legislative history on the definition of third party logistics provider. However there's certainly an abundance of evidence that third party logistics provider services were flourishing at this time and I'm also going to point to CPSC advisory opinions from the early 70s that gave some You know, I think you can talk about this if you want. I don't find that very persuasive because I don't think those opinions even purport to cite or discuss the definition of the term distributor. So if you want to talk about it go ahead but I'm telling you about it I don't understand but let's focus on the 2008 amendments so congress added for the first time a new definition of third party logistics provider defining it as a person who solely receives, holds or otherwise transports a consumer product but does not take title. I'm sorry why do you think congress used the word but instead of am I think it's may I Congress has not given us any indication of why use that word well I know that it sort of since it seems to me that you could interpret that as setting up some sort of distinction that that you could in fact do as suggested you could receive hold or transport but just to be clear for this definition you can't take title. What it does is it is makes clear that the definition of third party logistics provider is an exception from the rule of distributor because the district manufacturers and distributors and retailers by necessity have to take title to the product well okay so let's talk about that title issue and I take it that that is the core of your Amazon title. Well there's three ways in which the CPSC's interpretation makes no sense the first is that they write out of the statute those words but does not take title. Well again I'm not certain that's right because it could be the congress setting up this distinction but I'd like to know I mean of course we're at the papers and I'm having a little difficulty with your argument that your distributor has to take title. If a distributor, manufacturer and retailer did not have to take title then a whole category of market participants could be considered third party logistics providers or distributors so you pointed to FedEx and the title does not hold title term was not in the third party logistics provider definition they could easily be considered distributors. Well okay so let's back up to distributor I don't see the word title or ownership or anything like that in the definition of the term distributor and they're friends across the island they made that point it seems to me to be valid it's not in there It's not expressed, but it is implied. And when Congress added the term third party logistics provider to the statute and made clear that the difference between the distribution activities in which a third party logistics provider could take part in as compared to manufacturers, distributors, and retailers, it was not holding title that was part of that distinction. OK, well, let's look at the definition of distributor. And I don't see how that title is even implied in there. It says that the distributor means a person to whom a consumer product is delivered or sold for purposes of distribution and commerce. And I think we've established these products were delivered to Amazon, and they had to get there somehow since Amazon didn't make them. So their consumer products are delivered or sold for purposes of distribution and commerce. We've already talked about distribution and commerce. So I don't see how you can get around that language. Now, perhaps we can see what third party logistics provider says. But Your Honor, in order to receive, in order to be able to move a product through that chain of commerce, it is necessary to hold title because a purchase, absent title, an entity cannot purchase or sell that product. And that's what's where do you get that? What's the where does that come from? That idea that you have to hold title in order to distribute them? Well, I mean, distribute means to deliver, right? Well, in in 1979, I know Your Honor said you don't find them persuasive. But let me give a little more detail. You're going to produce the general. The general counsel said when asked by a member of the public, what does it mean? If something is introduced into interstate commerce, the response that was that manufacture means the completion of these construction or assembly operations before the product is shipped to the manufacturer's place of production for sale to distributors, retailers, or consumers. I mean, I took that language to be simply resetting what the hypothetical facts were. And again, there's no indication that the general counsel was looking at the definition of distributor. But I think more fundamentally, the parties haven't even talked about whether those opinions are persuasive or authoritative. And if you look at the website, they're not opinions of the commission. So I'm not sure what I should even do with them, even if I found them persuasive. Well, I heard this CPSU to be essentially saying that you should give their litigating position deference. Yeah, well, I'm not gonna do that. Yeah, so what matters the most is plain text of the statute and the way reading the statutory provisions as a harmonious whole. In addition to, and not nullifying any terms, these are very well-established canons of statutory construction. So the CPSU's argument has three fatal flaws. First, it writes out, does not take title out of the third-party logistics provider definition. Second. Well, okay, so as I've said, I'm not sure about that because first off, you have the word but, and I think that there is an argument to make that's just simply clarifying, but okay, as long as you understand it. But they ignore it as an ingredient truth. The language is in there for a reason and it does comport with traditional definitions of manufacturer, distributor, and retailer for that entity to hold title because you cannot sell a product absent title. Have you thought about use the word distributor, distribution in other contexts? Let's say like distribution of pickled substances. You don't have to have title to the drugs you convicted of distributing, am I right? Well, distributor, I was actually thinking of a different distributor context. So let's talk about different industries. The pharmaceutical industry sells drug products, prescription drugs to distributors that then oftentimes inspect and package those products and as relevant to the CPSC sometimes apply special packaging consistent with CPSC standards under the Poison Prevention Packaging Act before sending them down the chain to the pharmacists, the retailers. Well, I don't doubt that there are instances in which the distributor does take title. I'm just having questions about whether the distributor has to take title in order to be a distributor. You know, it's something about, you know, you think about the low level drug dealer who working on the Kingpan, the Kingpan owns drugs, drug dealer knows and sells them, but the low level drug dealer doesn't actually know who the drug is, but it certainly can be convicted of distribution, right? And although I agree with you, Your Honor, that the term distributor as defined in A8 does not contain a reference to title, the third-party logistics provider definition added in 2008 did expressly contain that term. It cannot be written out of the statute. And it makes clear that the distinction between provider and third-party logistics provider and distributor is that title distinction. So then your strongest point for title then is that those last, what, that last quality there in B16, who does not take all the product? Correct. So if you didn't have that, what would you have then to support your argument about title? Well, the CPSC rests most of its eggs in the basket of the term solely. It puts the term solely in a textural straight jacket that makes no sense as a practical reality. And it also does not make sense when reading these provisions as a whole, as Your Honor has to do. Do you disagree with their citation to cases that say solely means only, doesn't leave anything around for anything else? Yes, we do, Your Honor. We've cited counter cases, including the Supreme Court's decision in Sturgeon v. Frost. Statutory provisions. So, okay, Sturgeon, do you wanna talk about Sturgeon? I'm not sure I wanna talk about Sturgeon. Maybe we did several times. I mean, Justice Kagan obviously recognized it's very confusing because she told us we're going to talk about- What Sturgeon stands for, Your Honor, the Supreme Court's decision in Sturgeon and Justice Roberts' majority opinion. Oh, is Roberts, I'm sorry, I was taking, sorry, my mistake. Is that the term solely cannot be read in a statutory vacuum. It needs to be interpreted in the context of a whole. And so, by the CPSC's definition of solely or understanding of solely, FedEx, UPS, many other logistics providers would not be able to do anything else besides receiving, holding, and transporting for fear of getting bumped out of that. Now, if you go to the UPS store in Bethesda, Maryland, you will be able to get documents notified, unnotarized, get photocopies made by greeting cards, have bi-packaging, have UPS packaged for you. Isn't that part of logistics? This is what we're gonna put the package in in order to ship it to wherever it's gonna go. But that's precisely what fulfillment by Amazon does. Right, okay, but I referenced the Plaint Council's motion and the list of things that Amazon does. I don't think those other entities have sales than you have online, which Amazon certainly does. All of these logistics providers have online capabilities. Oh, sure they do, but I can't go there and buy a smoke detector or, you know, children's sleepwear on their website's hand. But the mere offering on a website of the products of others for sale does not make you a distributor of that product. Oh, I'm not saying it does, but when we're talking about the use of the word solely, to me that sounds like that's more than solely doing those other things. And it seems to be sort of the first thing you need to do in order to have a distribution of the product because that's what attracts the customers. There would be no third party logistics providers if you accepted the CPSC's interpretation of solely because there are activities like payment processing, customer service, sorting, fixing labels to all of the activities that you took the CPSC council through, those are all ancillary to the provision of transportation services and receiving and holding goods. So maybe they are ancillary, but they certainly are, they get my attention when we look at the word solely, price restrictions. And that's their characterization. And I understand you don't agree with that characterization, but there is a, what, fair pricing programs that was called? There's a fair pricing policy. It's undisputed that the third party sellers set their prices for the products and Amazon FBA does not do so. So the policy is sort of a general policy that prices can't be unreasonable or discriminatory, but the price, there's no dispute that the third party sellers set the prices for the product and post the product offerings on the fulfillment by Amazon website. Well, okay, so for purposes of the motion dismissed, I have to accept the faxes pled and the complaint. The complaint alleges that Amazon, under the fair pricing policy, has the right to take action against merchants for pricing that harms consumers trust, which to me seems more than solely receiving, holding and transporting a lot of the three things are. And among the other things, such as 24-7 customer service. Again, Your Honor, you have to read the term solely in the third party logistics provider definition in the context of the rule that it is part of. And the fact that those two relate is demonstrated by the identical terms that are used in the third party logistics provider, Carbat receives holds or otherwise transports and the distribution and commerce rule, which is to hold, introduce or deliver. And so their over reliance, my optic reliance on the term solely to mean that a third party logistics provider has to do nothing else other than receive, hold or otherwise transport. It's just impractical. And it goes against the relationship, it cuts against the relationship between the exception in the third party logistics provider definition from the rule of distributor. Well, I mean, even the second part, I think your problem is that you have these other activities that Amazon engages in, even if to use your crazy ology, Queen Council is being myopic when looking at the word solely, you do have these other things that Amazon does. And Your Honor, respectfully MasterCard Visa, they have payment processing services. They provide- What's that got to do with this kind of stuff? It means that if by their definition, if an entity participates in facilitating purchases, that it would be put into the definition of distributor. And that's simply illogical. I don't think I see that, but go ahead. There's no- I mean, MasterCard Visa don't have the goods there that are delivered to them for distribution of commerce. So I don't see how that fits, but- Well, if you'd accepted their definition that third party logistics providers, ignoring that they lack title and that only engage in those specific activities, if payment processing and posting products on websites counts as other activity, it would sweep in potentially lots of other types of entities. Isn't it other activity though? It's activity that is distribution activity. So why isn't having an online marketplace to use their terminology part of the distribution writ large? Because distribution activity by virtue of how distribution is defined in the statute is limited to holding for sale, introducing or delivering. Okay, customer service then? Customer service would be outside of distribution. Why? It's ancillary too, but it's not something that if you engage in would kick you out of the exception to distribution. How about the pricing policy? Again, the third party sellers are the entities that set the prices on the products. There's no dispute about that. How about the handling of product returns and refunds? Your Honor, no, that also would not take them outside of the definition of third party logistics provider. Why? UPS FedEx take returns? Okay, but I'm just looking at the definition. Under the definition, why wouldn't that take you outside the definition? The CPSA doesn't bore the IA, neither the 1972 statute or the 2008 statute just talk about returns. It's simply not part of the definition. It's not anywhere in the statute. And so it's not part of the statute or interpretation. It's not. So that's why I'm wondering why it wouldn't be something that is more than just solely holding, receiving, or transporting. It seems as though it is. Well, it would be an activity in which a third party logistics provider could engage, but that is part of receiving, holding, and transporting. In other words, reverse logistics. You're saying that providing customer service and refunds and handling the returns is reverse logistics? Well, no, handling returns would be reverse logistics. The other activities are ancillary to distribution, to third party logistics services, as well as distribution, but they're not specifically called out in the definition of distribution or the definition of third party logistics provider. Well, I suppose if A16 says solely received, holds, transports or handles returns might be on the ground, because it doesn't. Your Honor, there are at least six cases in the product liability context, including every federal circuit court, the fourth circuit in which the CPSC is headquartered, the ninth circuit, two federal district courts, the Southern District of New York and the District of New Jersey, the Seoul State Supreme Court, Texas Supreme Court, and a new authority, which we will be filing notice of supplemental authority about the appellate division in the New York State Court have all held on precisely the facts in front of you in this case, that fulfillment by Amazon is not a seller or distributor under closely adjacent product liability law. But aren't those cases really saying that Amazon cannot be held strictly liable because it's not a seller or it doesn't have title? Isn't that really what's going on? And more importantly, aren't those cases interpreting state law and not the definition of trauma here? It is true that they are interpreting common law principles, although in some of those states, those principles have been codified in statute. They're not construing a federal statute as you are. However, the federal product safety law is very closely adjacent. It's almost like federalized product liability law and importantly, the term seller and distributor are in both the federal statute that you're construing as well as in the state tort decisions. Is the definition of the term distributor the same in those states as it is in the federal statute? All of these courts have held that Amazon was not a seller or distributor even though for these primary reasons they through fulfillment, they merely facilitated the sale. They didn't take title to the third party goods. They didn't control or inspect the third party product. They don't influence design decisions and they identify the third party seller to the consumer. So these courts, I mean, this is the fourth circuit in Erie, although Amazon services were extensive in facilitating the sale, they are no more meaningful to the analysis than are the services provided by UPS Ground which delivered the product. Right, so I saw that language in Erie where the courts said the services were extensive in facilitating a sale, which made me think that that made me think of, of course, the use of the word solely in A-16 because if their services are extensive it seems to take Amazon out of the exception. Well, that's where the need to be construed the word solely as an exception to the rule is critical. It can't be interpreted in a statutory vacuum to create a textual straitjacket because there are simply no entity, including entities like UPS and FedEx that do nothing other than receive, order, transport. So it's possible that they would follow in the terms of distributor and they wouldn't follow in the terms of third party just prior. If I look at the statute and the statute says should I be concerned about those, the implications for other entities or should I only worry about what's going on here and why? Well, Your Honor, we think that the CPSC's view if adopted would have broad ranging implications would create confusion in the market as to which entities are third party logistics providers and which are distributors. And most importantly, Your Honor, one of the most critical requirements in the CPSA is for manufacturers, distributors, and retailers to report substantial product hazards. If that responsibility were placed on third party logistics providers that don't hold titles for the product that had nothing to do with designing it, that didn't set prices, that didn't inspect it, then it would turn the reporting world's topsy-turvy. And the CPSC- But if the statute says what it says, then I have to apply with the second steps, right? Regardless of- I have to read all of the terms of the statute together as a harmonious whole, meaning you can't ignore the lack of title requirement in third party logistics provision provider exception and you can't ignore the relationship between the exception to the rule of distribution. Well, why would Congress want the term solely to only apply to other distribution activities? Because Congress presumably understood that entities that are well-understood to be common carriers, freight forwarders, and third party logistics providers engage in other kinds of activities, but they're not distribution activities. It's possible that Congress envisioned an entity like Amazon decided he didn't want the children's exception. I'm not saying it did, but isn't that possible? Is it possible that Congress- Invisioned an entity like Amazon and decided he didn't want that entity to fit within the exception? I'm not saying it did, I'm just saying, isn't that possible? I mean, we're speculating this point, aren't we? A statutory construction cannot be based on speculation. It has to be based on construction of plain text and plain text read together as a harmonious whole. And so there's no indication in the legislative history that Congress intended to put third party logistics providers into the definition of distributor. If it did, it would have not enacted a separate third party logistics provider definition. It would have left the statute alone and said all commerce or distributors. So I just want to clarify then, what distribution activity could a third party logistics provider engage in to answer if I've asked that question clearly? A third party logistics provider can do what else under your perspective other than transport, receiver, whole? What are sort of activities that would fall into that umbrella? It can do what the Fourth Circuit in Erie indicated that fulfillment by Amazon does, which is to facilitate the transaction between third party sellers and consumers. As long as it doesn't design the product, inspect the product, set the prices for the product, it can facilitate the sale. It can do advertising, it can run a website. All of these activities were taken into account by the Fourth Circuit and the other courts and said this does not make Amazon fulfilled by Amazon a distributor. Does Amazon get a cut of each sale on its platform? It gets a fee. I don't believe it's a cut of a sale. However, it gets some money. Yes, and I believe it was the district of New Jersey or one of the courts had indicated that there is a, those fees, right? Or based on, or charged by fulfillment by Amazon, but they are not the same thing as the price of the product. Or how does that compare to other entities who you would say are from party logistics providers? Do they get part of the fee for a sale? Sir, Your Honor, I'm not a fact witness with regard to what other party logistics providers do, but they certainly get paid for their services by consumers. I'm on a delivery basis though, right? I am not sure. You, it's nothing I want to clarify. I think you denied this near answer, you denied that Amazon is an online marketplace of third-party sellers products. Is that right? They host a website on which products are posted, the third-party sellers post those offerings for sale and they facilitate the transaction when consumers purchase those products. Okay, I'm just trying to think about what is the daylight between what you just said and the phrase online marketplace of third-party sellers products. Maybe there isn't. I would analogize it to being the electronic equivalence of a shopping mall. In a shopping mall, there are different stores. Those retailers that manage those stores sell their own products, but the shopping mall owner, in that case, brick and mortar, as opposed to electronic, is not selling those products and it's not the retailer. It provides- It's a little bit different though. If I were to go to search for a product online, Amazon is probably going to come out of town. Well- By the search, right? And then if I go to Amazon, it's going to influence what products I see in some way. It's a little bit different. Well, there are different types of services Amazon provides on its website. So if I wanted to buy an Amazon branded product or a product sold by Amazon, I could do that. But what's before you, in this case, your honor, and Complaint Council does not contend otherwise, is how Amazon is acting in its fulfillment- In the FDA program. In the FDA program only. And again, all of the state and federal courts that have held Amazon to be not a seller or distributor have made that distinction. In Appendix A, to your initial motion, you list joint recall notices between a commission and Amazon. Yes. Between the commission and eBay. Are there any such joint recall notices between the commission and entities that you might say would be third party logistics providers, maybe like FedEx or UPS or XPO or some other? I, your honor, I have not looked, but we did attach, as you referenced, we attached a number of press releases issued by the CPSC, which identify the manufacturer of the product and identify Amazon.com as the fulfiller of the product. And so it's abrupt shift in position, in this case, is in stark contrast to its prior operation with regard to those press releases. Okay, but you're not aware of the recall, joint recall notices with those other social entities? I have not looked. Okay. Okay. Do you want to talk about the subsection B? Yes. That's, so subsection B, under a complaint council's interpretation of the 2008 amendments, this entire subsection would be rendered a novelty. Congress specifically added the term third party logistics provider in between common carrier and freight forwarder and carved them out expressly from being deemed a manufacturer or distributor or retailer solely by reason of engaging in its transportation facilities of services. And it doesn't, CPSC argues that because Congress did not include third party logistics provider twice in subsection B, that it means that subsection B should just disappear. But we think it's obvious that the addition of third party logistics provider into the first part of subsection B means that it is accepted out. That is the carve out from distribution for that class of entities. So I take it to you think third party logistics provider is something different from common carrier, contractor, freight forwarder. Correct. Otherwise Congress would not have added another term. So, right. There's the canon of instruction that we don't want to interpret phrases as being surpluses, sur plus edge. Correct. I could say one. But there's another canon that says that words are known by the company they keep. And so I'm wondering of which canon would control here because of words are known by the company they keep. Then you would say that third party logistics provider is something similar to a common carrier or contract carrier or freight forwarder. And in fact, I think if you then look down to the last six words in the definition there, Congress has sort of suggested that that is the canon to supply here because it refers to these businesses receiving, transporting whatever in the ordinary course of its business quote as such a carrier or forwarder. And so I'm wondering what your take is on that. The company that third party logistics provider should keep is the carve out that this provision creates from being deemed a manufacturer, distributor or retailer. No, no, no. I don't mean the company that the subject can be should keep. I mean the company that those four classes of entities should keep, such as that third party logistics provider might thought to be, might be thought to be very similar to the other three. And you'd said you don't think that it is similar to the other three. Well, they are similar in certain respects. They transport products. They're different. I mean, a third party logistics provider is different than a pure freight forwarder or a common carrier but they are all involved in distribution activities that involve receiving, holding, storing, transporting goods but are not manufacturers, distributors or retailers. So they're a piece in a pod, if you will. Okay. All right. I'm glad to hear that. Thank you. I want us to point out as we have in our brief that then acting Chairman Adler underscored how novel the statutory interpretation issue is before you in this case, Your Honor. He said, in reluctantly voting to approve this case, he said, our statute is not perfectly clear on the point because these types of platforms didn't exist when the agency was formed. And while stating his doubts about whether the agency had legitimate authority to bring this case against Amazon as a distributor, he was also perfectly clear that the current approach, which is selective adjudication product by product is like using an eyedropper to empty the ocean in effective, inefficient and frustratingly insufficient to protect consumers. Those are really policy considerations that really don't have any bearing on what I'm gonna do. Well, what is a rather unusual and a rather stunningly candid statement. You're five, I think you're five. Okay. Is for the head of the agency to be saying, questioning their authority to pursue this interpretation through adjudication. What am I supposed to, and that sounds like that's going to the non-American issue. Yeah, that's a segue into the next issue, Your Honor. Unless you have other questions. Well, I want to come back to my question about drug distribution. It strikes me that that's another, it's important, I think, to look at terms and think about them in a broader context. And there's definitely an example where you don't have to own the products to be guilty of distribution. I realize it's criminal, of course, but it's the same word, also in the US code. It strikes me that that's a problem for you, but maybe I'm wrong. Your Honor, if you take title out of the interpretive scenario, which we don't think you should do because it does render that term surplusage in Congress, put it in there for a reason. The fact that the provision of distribution services that are identified in the exception and that a third-party logistics provider can engage only in those distribution services, that means that that is an exception to distribution. So, using the analogy of the drug distributor, if a third-party logistics provider of drugs manufactured by others to which they do not hold title and they only distributed by receiving, holding or transporting, that would be a third-party logistics provider of those controlled substances and not a distributor. Right, but in the context I'm talking about, several blocks over, there's somebody selling drugs and that person doesn't own the drugs, the kingpin owns the drugs. That person can be guilty of distribution, right? Your Honor, that's outside of my area of expertise. Okay, okay, all right. Well, thank you very much. Thank you. When is it time, Mr. Mr. Sackler? 10 minutes. Your Honor, I'll try to be brief. Good. Once again, I think you have some trepidation with respect to what's going to be the effect of your ruling, okay? And it's very important for us to emphasize this isn't a close case. This isn't a case where we have a third-party logistics provider that does one other thing. This isn't a case where we have a third-party logistics provider that does one other logistics or transportation-related action. It's an entity that controls the entire program, that controls exactly how and when products are received, held, categorized, delivered in Amazon-branded packaging directly to the consumer. And when a consumer goes to the Amazon website, which it has described and we cite in our papers as an Amazon store, it's the consumer that is interacting with Amazon. If you find that Amazon is a distributor of the subject products, that holding doesn't eviscerate what a third-party logistics provider is because we're not dealing with that close case. That's one thing that I wanted to say up front. The other thing I wanted to say was you were asking about the meaning of that phrase at the end of the definition of third-party logistics provider that says, but who does not take title to the product? Well, that means exactly what it says. It means if an entity takes title, you are out of the exception, even if you restrict your activities to those three things after sold, receive, hold, and otherwise transport goods. So that's what that means. And your view is that taking title is what? Is that an action? It's a non-action? It's some sort of, I don't know, what? I would describe it as an action, but the way that the definition is written, it doesn't matter whether it's an action or an inaction because you're out of the definition regardless. But the importance of this phrase and the use of title in this definition means that Congress was well aware that title had some kind of impact on the chain of commerce, right? And Congress could have easily said that a distributor defined at seven has to take title to it. It didn't. Congress did not do that. What Amazon's position is that you have to read something into the definition of the distributor because of what happened with third-party logistics provider. That's just not the case. Congress could have done that. It chose not to. The bottom line here with respect to Amazon's statutory construction is that it would make the exception the rule. Amazon would have entities that do traditional distributor functions and all this other stuff be found to be third-party logistics providers and outside of our jurisdiction. And it would mean that this court, that you, your honor, would have to look at every other thing they did and determine whether on its own, each thing is a distribution activity. That's not what Congress said. That's not what the statute says. And that's not what you have to do. Can I ask you about the question I asked your colleague on the other side? About A16, the definition of third-party logistics provider. I asked about the Congress's use of the word, but I'm wondering what you think about that, whether Congress could have said and or whether that would make a difference. You know, again, the way that I read but who does not take title of the product, it's just a second card, okay? You can do just receive hold and otherwise transport a consumer good. But if you also take title of the product, you're not in the exception. Right, but why do you need that last phrase then? Under your interpretation of solely, I don't understand why you would even need it. Well, I think it goes to whether or not a product is sold to you or delivered to you, right? I mean, if it's sold to you, you can't be a third-party logistics provider, right? Well, yeah, but if you do anything more than receive hold or transport, you can't be a third-party logistics provider. So why do we even need to have that in? Look, I can't speak to Congress's full intent, but I can tell you that Congress did not put a requirement for title and distributor when it added this carve-out to the definition of third-party logistics provider, which is the important part for statutory construction. Well, yeah, but as, again, as Ms. Wilson pointed out, you have to interpret statutory language and context. And here we have this phrase and I'm supposed to try whichever thing so that there are no surplus words or surplus language. And that's sort of what we're looking at here, I think. I appreciate the contextual issue here and I do, but I don't, the words that Ms. Wilson used and I paid very close attention to it was that Congress implied, and I think without legislative history, without any kind of indication that Congress meant to carry this part of this definition over to the definition of distributor, you can't do that. The CPSA was enacted to give us broad remedial, broad powers to be able to go after manufacturers, distributors, retailers, and distributors is broadly defined so that we can choose to go after the party that we believe would best effectuate our mission to the public, which is to keep the public safe. Here, it's perfectly clear, Your Honor. Amazon is best situated. The cases that we cited to you, again, admittedly, not controlling authority, found that Amazon was so intertwined with the distribution of these goods that it was the party that needed to be held liable for a process like this. I think in the state law case, I know both sides are relying on them. I don't find them very helpful because they're not interpreting this provision for these provisions that they're looking at. And you can talk about them as much as you like. I just don't find it to be very helpful. No, I understand that. But if you just look at the FBA program and what they've admitted to doing for these subject products and for the FBA program generally, okay? They admit to doing a host of activities that you discussed with Ms. Wilson with respect to these subject products, holding them, introducing them into commerce, delivering them. There's a multitude of activities that they did to get these products to consumers' homes. And then when certain consumers didn't like them or found that they were defective in some sort, they returned them to Amazon. And your honor, it's worth mentioning the Amazon Warehouse program here, which empowers Amazon to take title to return products and sell them on their own, which they did for 32 of the products that issue here. At the end of the day, your honor, a simple reading of the statute puts Amazon directly within the distributor, the distributor definition, and it puts it expressly out of the third part of logistics provider definition. If you accept their construction, you're gonna be left with slicing and dicing every activity other than holding, receiving, or otherwise transporting goods, and have to make a determination on whether any of those specific activities constitutes distribution, that is not what Congress intended. I don't think in this particular instance, you can allow the exception to swallow the rule. All right, thank you, Mr. Yersish. Thank you. Could we take a break for the next part, or we can just go right into... What do you want to do? Your honor, if I could have one minute on this Azure Interpretation Origin as a server model. Would you have more time? Okay. Yes, then I suggest we take a break. Okay. I'm sorry, I didn't realize we were doing it back and forth, but she has more time this morning. Your honor, I believe I have maybe a minute or two left if there's something I want to say. Thank you. I think we were doing it. I'm going to allow this server model. No, we're just going to stop there. I think I've got, besides, I have your points. Just two points of clarification based on your last questions. First of all, you pointed to the press releases in Appendix A of our brief, and you said that you referred to them as joint Amazon CPSC press releases, I believe. Is that not correct? No, that's not correct, your honor. These are joint recall announcements between the third party seller and the CPSC, and as all of the subject lines indicate, the product is being recalled by the importer, by the manufacturer, and that manufacturer and that importer is clearly identified by name. That's the way it should happen. That's consistent with the statute, and amazon.com is identified as the website on which the product made by others is sold. I appreciate that clarification, thank you. And then one other point you asked about controlled substances. 21 USC 841 does not accept carriers forwards, forwarders or third party logistics providers. I think importantly, we need to look at the reason Congress put that exception into the safety act, which is that manufacturers, distributors, and retailers are the only entities in the United States that have a full understanding of how the product was made. They're the only entities that would be able to make determinations about whether a product has been tested. Oh, and I get that, but my only point is, you seem to be arguing that there's sort of this background understanding, the common law understanding of how distribution, the term distributor works. And so my point is I took a sort of step back and think, okay, how's it applied in another context? There's another context, and so that's why I was asking. We would respectfully suggest, your honor, that the overwhelming majority of persuasive federal and state courts to rule on whether Amazon is a seller distributor on the precise facts that are presented to you are much closer and more persuasive than the controlled substances act. Okay, thank you. Okay, so would you like to take how long, Chris? Five minutes. Five minutes. Would be in recess for, well, is that clockwork? Okay, until 25 till the hour. All right, so thank you. We're off the record. You did it. Thank you so much, Josh. Yeah. Is this true? Yeah. If I pass you a joint. There's no title. But I just, I committed distribution. And so it's a different statute. I know. Of course it is. The product, the ability, he says what was your state law. It's like, yeah, there are a lot of rules here. There are a lot of rules here. Exactly. Okay. Right. You know what I thought, where I thought he was going, he started to imagine. He's over here. Okay. That's where he was before he came. Let's go on. Oh, thank you very much. Okay. Thank you. Both of you. That's maybe the funny thing is when I was in the booster, I was looking at you finding it. Thank you. No problem. No problem. And I was not able to do that. You'd be of age. This is how you carry out the property. What do you do? Sometimes like, when you were the first one to get it right, some people would just say, I would see you there. Are you ready, John? Pardon me? Ready, sir? Oh yeah, I'm ready. I'm ready. Are you ready? I'm always ready. You're ready? I'm ready. We're gonna get the other party. They say they're ready, too. They start with us. I take your picture. We'll go back when you're ready. Thank you, John. All right. Let's go ahead and go back on the record. All right, Ms. Wilson. So I think you have 15 minutes for this. We weren't sure whether you meant 15 minutes for both sides. Each side. Each side gets 15. Right, right. So you got three issues. Could you just tell me which one you're talking about so I can keep things straight? So please go ahead. Your Honor, I'm just going to move next to our APA and new process. Okay. Your Honor, clearly you are giving careful thought to this novel issue. Issue of first impression as you correctly pointed out at the top. And these are, these are complex critical statutory interpretation issues. It's not Congress doesn't always make it exactly clear how the sausage is made or what it intended. And so we understand that these are deporters, but that is precisely why it would be more appropriate for the CPSC to be undertaking a rulemaking. And it is a violation of the APA, the new process protections to undertake sweeping new rules, the pronouncement of sweeping new rules through selective adjudication. It's a bedrock principle of administrative law, as you know, to provide the public with notice and an opportunity to comment on new interpretations. And the CPSC did not identify any clear line in response to your questions about which entities would be in the category of distributor and which entities would be in the category of third party logistics providers or contract carriers or freight providers. Can I ask you a few questions about your point on this APA point? Sure. If an agency is given authority to enforce a statute, is it required to issue regulations or guidance before it enforces the statute? If the interpretation of a statute would be a pronouncement for the first time, a new policy, a new approach, a departure from its past conduct, a new rulemaking rather than selective adjudication is the appropriate path and selective adjudication to apply a new policy against a sole actor for the first time. The answer is yes. It has to issue guidance for regulation before it can enforce the statute. Not before it can enforce any part of the CPSC. I mean, it can enforce the provisions that have been in effect since 1972, for example, and it often does, the reporting requirement. What I'm talking about here is a provision that has never been enforced. Right. So that's what I'm trying to figure out. Is there a case that says administrative agency, you have to issue a regulation or a guidance document before you can enforce the statutory provision? I'm not talking about the agency saying here's what we think it means. The agency is just saying we're going to enforce this statutory provision. Does it have to do that first before we can enforce the statutory provision? There are numerous courts that have held that it is a violation of the APA to enforce in a new way that represents a departure from prior enforcement policies through selective adjudication. What's the previous policy that you were relying on that is different now? The appendix, the press releases, the joint recall press releases between third party and CPSC is a manifestation of the CPSC's policy up until the point that it filed suit. So are you, do you recite a case of the, because I've got to make a decision based upon the press and what the APA says, the new set of case to me in which a court has said based upon press releases in the past that a party could rely on those press releases and expect not to be, not to face an enforcement action? Your Honor, it's not whether a party, is not entitled to face an enforcement action, it's whether the agency is obligated and whether it abuses its discretion. If it does not first announce to the public and provide an opportunity for comments on a new policy that's being announced, which is a departure from private practice. Here's the case. What's the new policy though? The new policy is to treat third party logistics providers clearly accepted in our view in the 2008 amendment to the statute to apply to providers of fulfillment services. That's a, that's a wholly different. Here's, I guess really my fundamental problem is all of the cases you cited, I think all the cases you cited involve a final agency decision. You can point to it say, look, the agency made this change. Here's, here's their policy. There's no final agency decision here. You're relying on the fact that the complaint was filed. That doesn't establish policy. It almost sounds like you're making a stop already. Did you rely on the non enforcement for, and you can rely on that now to not, which, you know, of course you can't stop. It's not going to fly here, right? Well, the, in the ninth circuit in the case for motor company versus federal trade commission, held that the FTC could not simply issue an order interpreting the act as requiring auto dealers to credit repossessed car owners with retail rather than wholesale value. They had to conduct, the ninth circuit had said they had, the FTC had to conduct rulemaking because the new interpretation was deployed in the first agency action against a specific defendant and had industry wide effects. First bank corporation is very similar. Hold on. So foregolder was a new rule that changed the standard of substantive liability. Made illegal in industry practice that had previously banned lawful. There's no change here. That's, that's the problem. There was a final decision for, or maybe it was a final, it was a rule. It was deployed against a specific defendant. Right. But you had a change that made, made illegal what was previously legal. Here, all you have is charged. You don't have a final agency action. That's, that's what I'm, I don't, all of your cases involve final agency action. I'm not aware, maybe you can tell me, I guess it would maybe be an injunctive case in which a court said that based upon the fact that the agency filed a complaint that you could stop the litigation. Well, your honor, first bank or we also think is similar there, the federal board, the directors of the federal reserve board issued an order that didn't make a rely on any adjudicative facts in order to set for the sweeping new policy. But see, you're assuming that I'm going to issue an order like that or the commission is going to issue. I mean, you're, it's sort of your argument is premature because you don't know what the commission is going to do there. But again, you had a final agency decision. And I understand what the problem was that the agency abuses discretion because it didn't actually adjudicate. It was trying to get around the notice of comment rulemaking requirements. But again, you had a final agency decision which you don't have here. Well, we have a selective adjudication and it's precisely in those, it's upon the issuance of a selective adjudication that courts have held that the, the agency should have proceeded through rulemaking rather than through adjudication. But again, it's a, you don't have a final agency action. So I, I just don't see how you can have an APA claim without that. I understand to get review of an APA claim you have to have a final agency action. So that's why I asked. I mean, is there an injunctive decision you can cite to you? I just don't think there are any cases that say that. I think your premise, that's the problem with your premise. Well, the, if that were the case, your Honor, then no party could ever challenge selective adjudication. They'd have to wait to the entire commission final agency action process had taken place before making an abusive discretion argument. Right. So do you have a case for that to happen successfully before there was a final decision? I, in Anaconda, in the Anaconda case, the DC circuit pointed out. Anaconda in your, in your motion? It's a CPSC versus Anaconda DC circuit 1979. It notes that the commissions, it had to do primarily with the issue of what constituted a consumer product and the scope of that definition, but it noted helpfully that the commission's authority to initiate and adjudicatory action under Section 12 is more limited than its jurisdiction to engage in investigation for rulemaking. So we think that is, that is precisely the point. What's the limitation? That, that because the selective adjudication applies only to one party and is a vehicle, can be used in an abusive way as a vehicle for imposing a new interpretation, a new policy preference on a single actor that that is abusive discretion. But aren't I really just going to rely on the statute? I'm really on to say really. I mean, there's nothing else I can rely on. There's no regulation. There's no commission policy. I mean, I'm going to, I'm going to hold based upon the statutory language that existed prior to the activity in this case. That is your central task, your honor, is to construct a statute. And as we've said, that is, that's a difficult task. But can as of, of statutory construction apply, which is reading the plain language, all the provisions in a harmonious whole. We do think also, your honor, that the proceeding is moot as both a constitutional and a prudential matter. Amazon, irrespective of whether the CPSC thinks it's a distributor or your honor holds that it's a third party logistics provider, all of the steps that are required under the consumer product safety act were taken long before the CPSC file is complaint. There are two forms of relief, two buckets of relief that the CPSC, the CPSA, empowers the CPSC to seek. The first is notice, notice product defect. And the second is remedy. And the statute is clear in 2064D that it's not any old remedy. There are specific statutory remedies, repair, replacement, and refund, known as the three Rs. The CPSC does not require returns by its plain text. It doesn't speak of product disruption. And it doesn't speak of CPSC approval to company notifications to consumers. So we think it's undisputed that the voluntary action taken by Amazon is far more effective than mass blasts press release. The notice is more than sufficient. It's more effective than standard press releases. It clearly identifies the product. It identifies the specific hazard. It gives clear instructions to consumers on immediately stop using and disposing, and it immediately or promptly refunds the purchase price of the product. Let me ask, I might be too sort of related quite well, I'm not related, I'm sort of related. The statute gives the commission the right to specify the form and content of any notice it might require to be given under subsection C. So isn't it really up to the commission to decide whether or not that notice you've given is acceptable? I mean, I guess it does not make that particular claim not moot, is what I'm saying, because the commission is seeking to invoke its right to do that. The commission can do that within the bounds of whether something is in the public interest. And so, as we pointed out in appendix B in our brief, your honor, and if you'll allow me to approach, I can supply you with a different topic. This is a side by side comparison of the direct notification sent out by Amazon FDA on the right hand side, directly to the consumers who purchase the products. And on the left, a CPSC issued press release on its website that indicates that children's robes that were made by a Ciro company and sold on Amazon.com have been recalled due to a violation of the federal flammability standard. And if you see the items of appropriate notice that are laid out in the statute relate to the ability to identify the product, that's the communication about the nature of the hazard, the specific instructions about what to do with the product, and who to call and how to get a refund. And if you look at and compare each of those elements in these two communications, they are virtually identical. There's nothing in the CPSC, nothing in the CPSA that speaks specifically to CPS approval. And if that were required, then instead of directly notifying consumers within a matter of days of a potential defect, manufacturers, distributors and retailers would be required to wait for weeks, sometimes months for the CPSC to approve. Well, doesn't the statute say the commission is the right to specify the form and content of any notice it requires to be given? It has the right to specify, but the notifications issued by Amazon meet all of the elements that have been previously specified by the CPSC. Well, OK, but your opponents only disagree with that. Let me ask you a more basic question. Does the commission apply Article 3 concepts of mootness in its proceedings? Does the commission apply? And that's whose I'm exercising delegated to the commission. So does it? It's a federal agency. There's no reason why it shouldn't. We think that it's an Article 3 concept. I mean, the agencies don't have to do that. They address, they give out advisory opinions, right? They can do those things. So that's why I'm just asking, does that happen? Yes, we do think and I think the NITSA, the NITSA recall decisions that we've cited, there are two of them in our brief demonstrate because NITSA is a federal safety regulator, just like I understand that. But I mean, I think each agency could decide, OK, this is what we do. Maybe it hasn't said anything, but I guess then I have another fundamental question that is, do we normally go through each claim of relief to decide whether a case is moot because of piecemeal? Don't don't the case to say, you know, if there is any effective, I guess, they use the word effectual relief that can be granted, no matter how small then you got you got a live case. So why would we go through each of these and say, well, this one's not this one's not this one is well, you would match up the the buckets of relief that are in the statute and those are notice and type of remedy. And all of the other want to have the CPSC is listed in its brief, maybe, you know, discretionary desires, but they're not required by statute. And so to assess mootness, you would you would contrast what the statute provides for and requires and what Amazon has done. So you you've said about as you request 3A, which is in order to cease distribution of the subject products, you said that that's a moot. But 3A also deals with functionally identical products. And I know you said you don't know what that means. And maybe that's a different issue. But the fact that you don't know what it means, potentially. Doesn't mean that it's moved that the CPSC has never in the recall context required a manufacturer, distributor or retailer to do anything more than recall and remediate the specific products about which a report has been filed. OK, so maybe they should or shouldn't do that in this case, but it's in the it's in the complaint. So isn't isn't that a small portion of the remedies that are live? There's no dispute between the parties, your honor, about the products at issue here, the specific products at issue here. And there's no dispute that Amazon has removed the identification numbers and the listings for the products that are in the complaint, every single one of them. And there's no dispute that they've been quarantined. The CPSC does nothing to dispel who's of the claim. It doesn't adequately plead that a mandatory order is required in order to adequately protect the public. That's the touchstone. It doesn't allege that Amazon's notifications failed to reach consumers. It doesn't contest the direct notifications better nor could it because there are many public statements on the record that that that the CPSC has said that is a superior form of notice. It doesn't contest the refunds are allowable. It doesn't contest that self disposal is a common instruction. It doesn't contest that there's no return to shipper requirement. It doesn't contest that there's no destruction requirement. And it doesn't contest that Amazon has provided much swifter relief to consumers in the interest of consumer product safety than if I don't doubt that all of the requests that the CPSC has conceded away that you refunded. I'm sorry, I think the commission has conceded the fact that all the refunds have been given out. So I mean, I'm not I think that to the extent we would go to things piecemeal, but all of those are uncontested facts. But so what about the point I made about these other function identical products? And I don't know whether it's actually going to want to do that or not. But it's in the complaint. Well, it's in the complaint that it's it's it's not they're not. They don't appear to have briefed that issue. It's so vague. It's it's unclear what that even means. And the CPSC couldn't enforce either through adjudication or rulemaking something that big, a functionally equivalent product. What the who is the burden when the remedial actions are taking place before the component is issued? Who has the burden on this? I understand normally it's you, but normally the the mooting event happens after the point is filed. That's correct, as it as it was in Winsor. And even there, since the judge then judge Dorsuch said because Toyota had undertaken in automotive recall while the case was on appeal and he said the case is moved. No, I understand that. So here you're saying some of the remedial actions took place before the complaint was filed. And so what I'm trying to get at is who has the burden on mootness when that happens? And then the secondary question is, does the complaint have to anticipate the defense of mootness or, you know, voluntary cessation or something like that when that happens? Because this to me is a different situation. What you're talking about in that case, the mooting event occurred after the case started. Correct. So you're the moving event happening before. And so I'm not sure who has the burden on that, only you, but maybe not in this case. I don't know. I think that's I think that's right. You know, it's always the commission's burden to prove public interest. OK, well, your time is up, but thank you. Thank you. Your Honor, I think you've correctly identified that this case is a simple exercise of the CPSC statutory power under section 15 of the CPSA U.S.C. 2664 based on the current law as it stands in the books. Congress grants at the agency the power to engage in administrative litigation to compel retailers, manufacturers and distributors to recall hazardous products. Are you dealing with the APA client that we're talking about now? Yes, my apologies, yes, the APA client. My colleague, Mr. East, will deal with the mootness claim after myself. And you've correctly identified that neither the APA nor the consumer product safety actor, the CPSA, required the agency to issue guidance or to formulate rules on how the terms distributor or third party logistics provider would apply to an e-commerce entity before we bring an adjudicated action. There's there's the commission, maybe the commission hasn't addressed this, but it seems odd to me that I would be deciding whether the commission abuses discretion and bringing complaint rather than issuing rulemaking. You may have waived that argument, but. Has the commission ever talked about that? Well, we've looked at the cases, Amazon sites, which found that agencies had abused their discretion. No, no, no, I'm talking about my jurisdiction to address the question. Has the commission ever talked about that? So here's the thing, I'm exercising delegated authority, delegated by the commission. It seems odd to me, although you guys haven't argued about this, that I would get to decide whether or not the commission abuses authority by bringing an adjudicatory action rather than a rulemaking. And I'm just asking, has the commission ever talked about that? I don't think we have, because it's so simple to us that this is a. I don't mean you, I mean the commission, the big commission. No, I don't, I don't believe that the commission has addressed that. Go ahead. And neither the APA nor the CPSA required the commission to engage in rulemaking or issue guidance on how these terms distributor and third party justice provider would apply to e-commerce entities before we bring in a adjudicatory action. Do you think that Amazon could rely on your previous policy announcements, maybe the the matters that your your colleagues cited when she made her argument? The advisory opinions? Well, no, no, no, I mean, so I think it was the recall notices that you talked about, can Amazon rely on that? Well, no, your honor, those are those are one time recall notices. The statute empowers the agency to bring enforcement action against manufacturers, retailers or distributors. And just because we chose to bring it against the manufacturer in one case does not mean that we will always do that. The undisputed material facts make clear that Amazon, with regard to these three sub these three categories of subject products, which are what these cases about acted as a distributor. So are you saying that the agency basically has some unfettered discretion to decide whether it wants to bring a rulemaking or an adjudication case against anyone it wants? Well, no, a rulemaking would usually articulate a new standard or new requirements and would be based on the sections of the CPSA that allow the agency to kind of engage in new performance standards or adjudicatory standards. But when we're looking at enforcement actions, we don't think that the recall notices or press releases, which serve as an official policy of any type. Amazon complains that this is a sweeping new policy and that this would have widespread effect and that this is against one sole entity. But that is the whole nature of an adjudicatory action. The CPSA brings enforcement action against one specific regulated entity to recall the consumer products here, the three categories of subject products that are listed in the complaints. And that is well within the agency's authority. And the cases that Amazon cites, the First Bank of Corporation versus the Board of Governors of the Federal Reserve System, you correctly noted, Your Honor, that in that case, the board did not look at any individual facts when it made its order. And here we have an undisputed record of material facts that show that Amazon meets the definition of distributor. And based on those facts, we've argued that Your Honor should rule that Amazon is a distributor and needs to take the remedial actions listed in the complaints. The same applies to the Federal Trade Commission, to the case of Ford Motors Company versus the Federal Trade Commission. In that case, the FTC had decided that an entire industry had violated the Federal Trade Commission Act. And again here, we're not looking to apply any standards to any entire agency, to any entire industry, or to probably get any new rules or requirements. We're simply applying the facts of the statute as they stand today to Amazon as a distributor of the three categories of subject products in its FBA program. And we agree with you that this is not a final agency decision and that Estoppel would not apply here. Why wouldn't Estoppel apply? There's no case that we are aware of at least to cite that. Sorry. We're not aware of any cases where Estoppel would apply here. This is a selective adjudication under the statute against the distributor of hazardous consumer products. OK. And we're not here to define kind of every entity as a distributor or third party logistics provider. We're only because Amazon acted as a distributor of these three categories of subject products. And that is why this case is not a sweeping new policy as Amazon articulates it. It is a simple act of statutory interpretation, applying the powers that Congress has given to the agency to Amazon's actions under the FBA program. I'll yield my time and just use this. I'm sorry. I'm going to address Mootness, Your Honor. But as an initial matter, I did want to note that the Commission is well aware that you, as an administrative law judge, will rule on matters relating to the legitimacy of the complaint. Your Honor, Amazon argued that it's voluntarily done everything it would have to do with respect to the subject products, thus mooting the case. But, Your Honor, Amazon misses the point here. We brought this case because the Commission determined that Amazon's voluntary and unilateral actions are insufficient and were charged with ensuring that responsible parties do all that's required to remedy the hazards created by consumer products. Usually, when you hear about voluntary cessation, it happens again, as I discussed, it happens during the case once the complaint is filed. So here you've got a voluntary cessation, I guess, event. And the concerns about Mootness or maybe artificial Mootness, if I can call it a term, don't really apply because they happen beforehand. So can you address that? Sure. Well, I want to address one other thing first. OK, before you ever get to the exceptions to Mootness, the actions that that Amazon has voluntarily taken would have to be found to be sufficient. And we think that before you ever get to those exceptions to Mootness, you have to decide that first. And Amazon claims that we're asking for pre-approval of the notification and everything, but that's not the case. This case isn't about pre-approval at all. It's about enforceability and oversight. So what's the live version? OK, the main thing that's live, Your Honor, is that Amazon sent out notifications and issued refunds and said you should dispose of the product, right? There's been no follow-up. OK, there's been there's been no. But you can see that all the refunds have been issued. Yes. And I think you've argued, you know, we want to have refunds to condition. We want to condition the refunds on the return or structure of the products. But if all the refunds have been issued, then you don't get that. You don't get that remedy. Your Honor, that's one arrow in the quiver of incentivizing consumers to return or destroy products. Here's the point. Amazon conceded that we can enact. We can request remedies that are in the public interest. OK, I believe in this hearing, we may have lost sight of the fact that these three categories of products include carbon monoxide detectors that literally do not detect carbon monoxide, children's sleepwear garments that fail mandatory flammability regulations and hair dryers that collect acute consumers. Do we want those in consumers' homes? OK, no. That's those are policy questions. I need to know what's why. And, OK, you can talk about how my fortune is to have carbon monoxide detectors that don't work. And I'm not going to argue. I need to know what's why. The CPSC, without an order from this court, can ensure that those hazardous products are removed from consumers' homes. When a consumer got the email from Amazon that gave it its refund, it could just keep the carbon monoxide detector plugged into its wall. It could take it out of the wall and sell it on eBay. OK. So what do you what do you imagine you can do about that? We can we can require monthly progress reports. We can require consumers to provide proof of destruction so that we know that these hazardous products are removed from homes. OK, but if you require consumers to do that, that's not something that Amazon can do. Oh, we can have Amazon request that through their notifications, follow up notifications to consumers. They've already given them notifications. They've given a type of notification on her. But as you discussed with Ms. Wilson, we can have follow up. The point here isn't about pre-approval. Well, whether or not Amazon notified consumers is is not a point for removing this. The question is what still is left to be done. As you said, what's left to be done is a follow up notification to ensure that these products are gone. So what about the fact that we're going to this piece of mail? Why are we doing that? Why aren't you just arguing? Look, this is the thing that's live. This case is not moved and let's move on because the Supreme Court has said that's how you do it. It's the case is moved, not not these individual remedies. Well, your honor, we have to when we brought the case, OK, we had a disagreement with Amazon about what it was doing with respect to these three categories of subject products. We wanted to make sure that the court was aware of the full scope of the remedy that both were statutorily entitled to and what we're seeking. OK, so we can discuss if if this case were to come to a consent decree, your honor, and Amazon and the agency were to engage in a consentous grade signed and enforceable, we could limit potentially some of the remedies that we've sought in our complaint. But that's not where we are in the case procedurally. So we're bringing seems to me that you can make a much simpler argument about mutinous than going through each of these things. But that's that's your call. Just I just wanted to say something about the case law. Well, let me cover a couple of things on the Supreme Court case law about mutinous. You know, you mentioned that the voluntary cessation doctrine generally applies when a party takes actions after the the filing of a complaint and before it's adjudicated. Well, that didn't happen here. A lot of the assurances that we've received from Amazon, that they're going to continue to do things are things that they may not continue to do absent in order. Things like suppress ASINs. You mentioned the concept of functionally identical products. Just for our core report, it's AS. Oh, I apologize. ASIN, all caps. It stands for Amazon Standard Identification Number. I apologize. But these ASINs, they've been suppressed. And you made the point about functionally identical products, which is an argument that we preserve in our papers. But the point about the ASINs is Amazon says in its brief, they will not allow the third party sellers to reinstate the ASINs. Well, we've come across products that are nonetheless posted on their website after they've been recalled. Is that in your complaint? Yeah, I'm sorry. Is that in the complaint? Is that in the complaint? Which part? That you've come across these. It is not in the complaint. Is it in your motion? Is it in any fact? It is not in our motion. OK, so it's not an undisputed fact. It is not an undisputed fact. OK. On the capable of that repetition, the innovating review doctrine, that doesn't depend on what a party did before or after the filing of the complaint. That legal exception to mootness really relates to the potential for the same parties to end up before the same tribunal on the same general issue. And on the threshold issue of whether or not Amazon is a distributor of FBA products, or likely to be before an administrative law judge again on that same issue for the next set of hazardous products that come down the pike. That's why we cited that particular doctrine. But more importantly, your honor, at the end of the day on mootness, it's really about the fact that what the actions that they've taken to date with the subject products are simply not sufficient. And we are empowered to preserve the interests of the public and making sure that these things are removed from homes and destroyed. If I could, your honor, I wanted to summarize our general point. What are you talking about? Oh, you got plenty of time. Great. And I'm happy to entertain any questions that you have about the other arguments. But I wanted to explain that the bottom line here in terms of the commission's position is that Amazon cannot escape the consequences of its calculated actions, OK? Amazon is a distributor of the subject products under the CPSA. It can't shoehorn itself into a narrow exception. OK, wait, wait, I thought you were just talking about these three arguments. We've already covered the merits argument. Correct. So if you could just summarize on these three arguments. OK. I hope they'll be fair as well. Well, your honor, I believe on the APA you've correctly summarized that Amazon can't point to a single case where an agency has been foreclosed from filing a litigation where there's not a prior order upon which it can rely. Amazon can't rely on simple press releases to say that we won't exercise our statutory authority against a distributor. And on mootness, I believe the points that I've made are sufficient. I would like to reserve a couple of minutes if there's a need for me to address something that Ms. Wilson says in her above. Oh, OK. Thank you. Oh, yes, she used all the time. I'll give you a minute. Thank you, your honor. Just two very brief points. If your honor is inclined to reject the APA argument on the premise that you lack the delegated authority to address that issue, OK. They haven't raised it. I just was wondering why they hadn't. Right. Complaint counsel has not raised. And so since you brought it up, we would be willing to do a supplementary brief on that. No, that's not sorry. OK. I think it's no way to touch this period. Just finally on mootness, Mr. Eustace has indicated that what the commission is really interested in pursuing is returns. It's not in the statute. And if your honor spends 30 minutes looking at the CPSC website every recall that's publicly available on the website, you will see that the substantial majority do not involve returns. Those that do involve returns did not condition refunds on the consumer returning the product. In other words, it was a proof of purchase vehicle and not aimed at getting the product out of the market. So we just we think that seeking that remedy is not rooted in statute and therefore the case is moved. I don't think there's really much for you to say as to that Mr. Eustace. Just one thing. We're not saying just returns. We're saying that we need confirmation that the products have been destroyed. That doesn't necessarily mean returns. It could. Thank you, John. All right. I want to thank the parties for their hard work. It's always it's a great pleasure to see well-prepared intelligent counsel make their arguments. So I appreciate that you've given me. You've made my job more difficult. So although I said I thought I might build a rule today or maybe next week, it's probably going to be a little bit longer. So you've given me a lot to think about and I want to want to do that. So but I do want to thank you for your time. And I guess I'll say I wish everyone happy holidays and safe travels. And everyone remain safe. Last and prudent. And so you'll you'll hear from me at some point soon. Thank you. And with that, we are adjourned. Thank you, everyone. Please take your seat. Take your seats, please. Good evening. Thank you. Have a good holiday.