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Document Type

Note

Abstract

The rise of e-commerce has created a number of online marketplaces where digital platforms connect buyers and sellers. Consumers use platforms like Amazon, Etsy, Instacart, Uber, Lyft, and Airbnb to purchase goods and services from third parties while the platform itself takes a fee for operating the marketplace. Online platforms are not the only businesses that use such a “two-sided” marketplace model. The Supreme Court recently addressed antitrust concerns in this type of marketplace in Ohio v. Am. Express Co. 1 Two-sided markets invoke a number of novel legal issues that impact both those who buy and sell over them, most prominently in the field of antitrust and consumer protection. Among these online marketplaces, Amazon has recently come under intense scrutiny from regulators in the European Union and the United States. Amazon is part of a quartet of American tech companies, joined by Facebook, Google, and Apple, that have raised alarm bells over their seemingly ever-increasing market power. Critics of these companies’ business practices have urged aggressive antitrust and consumer protection enforcement actions. Using its significant resource advantage, Amazon has allegedly developed cheaper versions of successful products that undercut sales for the product of the original third-party seller who developed it. While antitrust remains perhaps the most obvious means of addressing such competition concerns, existing antitrust jurisprudence in the United States presents considerable hurdles because Amazon’s allegedly anticompetitive behavior, while perhaps unfair to merchants, likely benefits consumers by providing lower prices. Rather than view this behavior exclusively through the lens of antitrust or consumer protection law, this Note will advance the position that Amazon, and other operators of online marketplaces’ use of third-party commercial data, should be regulated under a fiduciary-like standard. This approach adopts the spirit of Jack Balkin’s information fiduciary concept, but after analyzing its application in the e-commerce concept, argues in favor of a more concrete regulatory approach. By drawing from existing data protection regulations in the healthcare and securities sectors, Congress or a regulatory agency could impose a standard of data use that would instill greater trust in online marketplaces between merchants and platforms.

Erratum

The editors recognize that the page numbers for this Note need to be corrected. The preceding article by Zeide ends on page 140; this Note should be paginated as 141 through 166.

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