August 11, 2016

Serving Subpoenas to Identify Unauthorized Sellers on eBay


"Investigation tactics" frequently refers to the techniques utilized by skilled cyber investigators. They also include subpoenas. Issuing subpoenas is a legal mechanism for identifying (in this context) targeted unauthorized sellers of products on eBay and other sales platforms.

As a brief refresher, our recommended graduated enforcement system features the following steps:

  1. Identifying diverted products;
  2. targeting sellers via electronic cease and desist letters sent through the specific websites (e.g. eBay)
  3. conducting investigations or serving subpoenas to obtain the actual identities of any sellers who fail to comply with the electronic cease and desist letters;
  4. sending physical cease and desist letters to the noncompliant sellers’ physical addresses, based on the information identified through step three; and
  5. if necessary, pursuing any sellers who ignore the letters through escalated enforcement actions.

In many instances, identifying unauthorized sellers (as listed in step three above) is often accomplished through the efforts of cyber investigators and effective monitoring programs.

Identify Unauthorized Sellers on eBay

One simple technique that investigators often rely on to identify unauthorized sellers on eBay is product purchasing. An investigator can simply buy a product from an offending seller and obtain the seller’s identity through the information provided from the purchase. For example, this might include a return address on the packaging label and payment processing information.

Of course, it is not always that easy.

On eBay, sellers might use P.O. boxes, or their shipping labels just might not have accurate information.

In either scenario, a company’s legal team can serve subpoenas on eBay Inc. to obtain the unknown sellers' identities. This does, of course, first require filing a lawsuit.

Legal teams should serve eBay subpoenas on its registered agent in California. In other words, the relevant action should be filed in California. If it is a "foreign action," a company can retain a California-licensed attorney and follow California's version of the Uniform Interstate Depositions and Discovery Act (UIDDA).

Valid subpoenas for the production of documents containing personally identifying information about sellers should identify the unauthorized sellers. While some sellers might try to hide their identities from the general public, since they receive payments through eBay, they typically need to provide these companies with accurate information.

Upon obtaining the identifying information, a company seeking to stop unauthorized sales can then send the identified sellers physical cease and desist letters. If necessary, they can take additional legal action against them.