Monestier takes on Amazon in continuing defense of consumers

Commingling. Ear buds delivered through “a Santa-like feat.” Mysterious deliveries by familiar Amazon trucks. It’s writing that sounds more like conversation about something that matters to you and your neighbor, rather than esoteric legal jargon.

UB law professor Tanya Monestier has done it again. Combining her interests with her legal expertise, Monestier has become a new voice in the nexus of where law meets everyday life, setting her course on legal scholarly work that hits the heart of everyday problems.

Actually, she has hit this mark twice more, not once. Most recently, she authored an article in September in the Villanova Law Review titled “Amazon’s Dirty Little Secret.” The article details the common practice of “commingling,” which calls the giant, multinational e-commerce company on its previously unrecognized common practice of switching sellers of merchandise; buyers receive merchandise from a different seller than intended.

“Commingling means that the same goods from different sellers are stored together and then sold interchangeably,” Monestier writes in the scholarly journal with a decidedly nonscholarly tone. “The theory is great, as long as these goods are truly interchangeable. All it takes, however, is for some bad actors to co-opt the commingling supply chain and those goods are no longer interchangeable.

“Some goods are real. Some are fake. Some are junk. Some are dangerous. When you order something on Amazon, you don’t know what you are going to get. You are told your goods are ‘sold by’ Amazon, but the actual goods you get may be from a shady, third-party seller based in Shenzhen, China.”

How can Amazon do this and not tell its customers?

“Good question,” Monestier says.

“I argue that Amazon should no longer be permitted to get away with its secret practice of commingling. Telling a buyer that they are getting goods from Seller A and then giving them goods from Seller B is deceptive — plain and simple,” she writes. “The law should not countenance such a practice.”

It’s not the first time Monestier has taken on Amazon. Two years ago, in the Cornell Law Review — one of the country’s premier law journals — she examined Amazon’s liability in contracts for defective goods. In the Cornell article, Monestier says Amazon deliberately deceives customers with a practice that frees the company from any liability for defective goods and the harm they may cause.

“You have probably purchased goods on Amazon,” she begins in the Cornell article. “Did you know that if the goods you purchased on Amazon turn out to be defective and cause serious personal injury, Amazon is probably not liable for them? Did you know that even though you placed an order on Amazon, gave payment to Amazon and received the goods in an Amazon box, there is a good chance that the goods are not ‘sold by’ Amazon — but are instead sold by a third-party seller?

“Did you know that Amazon tries to avoid liability for goods sold on its platform on the technicality that it does not hold ‘title’ to third-party seller goods, even though it promotes those goods online using Amazon branding, stores them in Amazon facilities and delivers them in Amazon trucks? And did you know that the reason Amazon does not have title to those goods is because it unilaterally sets the title terms in its 68-page contract with third-party sellers?”

Both articles are more evidence of how Monestier, in a relatively short time, has already established herself as a legal scholar who fights for the underdog and underrepresented consumers against seemingly unassailable monoliths.

“I just do what interests me, and it hopefully it makes a difference,” she says.

Monestier, who joined the UB faculty in 2022, is no stranger to a legal scuffle, nor does she shy away from it. A “shell game” is how she described Amazon’s practice of hiding from its liability. In 2022 she wrote a celebrated textbook for law students called “Sh*t No One Tells You About Law School.” She also has garnered widespread national attention issuing two critical reports against the California Association of Realtors’ (CAR) revised standard forms for buyers, calling them “unreadable.” 

In the last six months, she has been frequently quoted by major media about the reforms home buyers needed for protection from real estate agents when buying a house.

Monestier this summer was the subject of an in-depth profile in RisMedia. The article highlighted Monestier’s rising career as a law professor and a real estate law author “sharing opinions on workarounds, forms and how family has informed her consumer protection advocacy,” according to the article.

“Monestier explains that the inspiration for much of what she takes on comes from a very basic premise,” according to the article. “How would her immigrant parents with limited education be able to handle the subject’s complexities?”

“There are not a ton of legal scholars doing work in the consumer protection space,” she said in the article. “But I’m honored to be one of them.”