The Amazon War and the Evolution of Private Law

It’s well known that to boost their sales, sellers sometimes post fake 5-star reviews on Amazon. Amazon tries to police such actions by searching out and banning sites with fake reviews. An unintended consequence is that some sellers now post fake 5-star reviews on their competitor’s site.

The Verge: As Amazon has escalated its war on fake reviews, sellers have realized that the most effective tactic is not buying them for yourself, but buying them for your competitors — the more obviously fraudulent the better. A handful of glowing testimonials, preferably in broken English about unrelated products and written by a known review purveyor on Fiverr, can not only take out a competitor and allow you to move up a slot in Amazon’s search results, it can land your rival in the bewildering morass of Amazon’s suspension system.

…There are more subtle methods of sabotage as well. Sellers will sometimes buy Google ads for their competitors for unrelated products — say, a dog food ad linking to a shampoo listing — so that Amazon’s algorithm sees the rate of clicks converting to sales drop and automatically demotes their product.

What does a seller do when they are banned from Amazon? Appeal to the Amazon legal system and for that you need an Amazon lawyer.

The appeals process is so confounding that it’s given rise to an entire industry of consultants like Stine. Chris McCabe, a former Amazon employee, set up shop in 2014. CJ Rosenbaum, an attorney in Long Beach, New York, now bills himself as the “Amazon sellers lawyer,” with an “Amazon Law Library” featuring Amazon Law, vol. 1 ($95 on Amazon). Stine’s company deals with about 100 suspensions a month and charges $2,500 per appeal ($5,000 if you want an expedited one), which is in line with industry norms. It’s a price many are willing to pay. “It can be life or death for people,” McCabe says. “If they don’t get their Amazon account back, they might be insolvent, laying off 10, 12, 14 people, maybe more. I’ve had people begging me for help. I’ve had people at their wits’ end. I’ve had people crying.”

Amazon is a marketplace that is now having to create a legal system to govern issues of fraud, trademark, and sabotage and also what is in effect new types of intellectual property such as Amazon brand registry. Marketplaces have always been places of private law and governance but there has never before been a marketplace with Amazon’s scale and market power. It’s an open question how well private law will develop in this regime.