Platform and marketplace compliance

I am Sergei Tokmakov, a California attorney (CA Bar #279869). Platforms and the businesses that live on them have a recurring problem: the terms-of-service, the seller agreement, the content moderation policy, the DMCA process, and the Section 230 posture all need to fit together cleanly, and almost no one writes them as one document. This page covers both sides of that work: drafting the paper for the platform, and pushing back when the platform's paper has been used to deplatform, demonetize, or delist a seller, creator, or merchant. I write for the operator who actually needs to know what the document does, not the operator who wants a 90-page treatise.

Matters I handle in this area

• Marketplace and platform terms of service. Drafting and reviewing user agreements, seller agreements, creator agreements, host-and-guest agreements, two-sided-marketplace paper, and the dispute-resolution clauses that go with them.
• Deplatforming and account-termination disputes. Pushing back on account terminations that the platform's own terms did not authorize, often on Amazon, eBay, Etsy, Shopify, TikTok Shop, YouTube, Twitch, Patreon, Substack, OnlyFans, and the major app stores.
• Content moderation policy drafting. Acceptable use policies, community guidelines, escalation and appeal mechanisms, and the documentation that supports a content moderation decision.
• Section 230 posture and DMCA designated agent. Drafting the policy so that the Section 230 safe harbor is preserved where available, and confirming the platform has a registered DMCA designated agent under the current Copyright Office rules.
• App-store deplatforming. Responses to Apple App Store and Google Play Store policy enforcement actions, including the appeal mechanism and the rewrite of the listing or the underlying product behavior.
• Seller and creator IP, brand-gating, and exclusivity disputes. Disputes over brand-gating on Amazon, exclusivity carve-outs on creator platforms, and unilateral marketplace policy changes that destroyed the seller's business model overnight.
• Two-sided marketplace operator counsel. Onboarding, payments flow, escrow and seller-funds handling, complaint and refund mechanics, and the privacy overlay (CCPA/CPRA service-provider language, GDPR processor terms).

How the same matter looks from both sides

A platform writes the seller agreement to maximize discretion and minimize commitment. A seller reads the same agreement looking for the place where the platform actually committed to something. The two readings are not the same. I have written both, and I am willing to tell either side which clause is doing the work and which clause is decoration. That second read is the value.

Anonymized case studies

Controlling California statutes and federal authority

Below is the working list. Platform and marketplace work pulls from federal communications, copyright, and consumer protection statutes alongside California-specific privacy and unfair-competition law.

• 47 U.S.C. section 230 (Communications Decency Act), the statutory immunity for interactive computer service providers and its limits.
• 17 U.S.C. section 512 (DMCA safe harbor), including the designated agent registration requirement and the notice-and-counter-notice procedures.
• 17 U.S.C. section 1201 (DMCA anti-circumvention), including the current Copyright Office triennial exemptions.
• Federal Trade Commission Act, 15 U.S.C. section 45, and the FTC's recent enforcement themes on dark patterns, fake reviews, and click-to-cancel obligations.
• Federal Restore Online Shoppers' Confidence Act (ROSCA), 15 U.S.C. section 8401 et seq., governing online subscription disclosures and consent.
• Federal CAN-SPAM Act, 15 U.S.C. section 7701 et seq., where the marketplace operates email-based promotion.
• Cal. Civ. Code section 1798.100 et seq. (CCPA, as amended by CPRA), including the service-provider, contractor, and third-party definitions.
• Cal. Bus. and Prof. Code section 17200, the California Unfair Competition Law, frequently pled alongside breach of the seller agreement.
• Cal. Bus. and Prof. Code sections 17500, 17529.5, and 17602, on false advertising, commercial email, and automatic renewals.
• Cal. Civ. Code section 1670.5, unconscionability, as a backstop against one-sided platform terms.
• Cal. Civ. Code section 1717, recovery of attorney's fees on contract claims.
• EU Digital Services Act (Regulation (EU) 2022/2065), where the platform reaches EU users.
• EU Platform-to-Business Regulation (Regulation (EU) 2019/1150), for online intermediation services with EU business users.
• Case law: Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997) (foundational Section 230 case); Fair Housing Council v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) (limits of Section 230); Gonzalez v. Google LLC, 598 U.S. 617 (2023) (recent Supreme Court return to Section 230 framing); Lemmon v. Snap, 995 F.3d 1085 (9th Cir. 2021); Murphy v. Twitter, 60 Cal. App. 5th 12 (2021); and McGill v. Citibank, 2 Cal.5th 945 (2017) (public injunctive relief in platform arbitration clauses).

Sample claims and contract issues I check

Operator-side and seller-side, I check substantially overlapping clauses but from opposite directions:

• Account suspension and termination: what triggers it, what notice is required, what appeal exists.
• Discretion clauses: is "in its sole discretion" actually defensible, and does it pair with a notice or cure mechanism that softens the optics.
• Reserve, hold, and payout: do they match what the payment processor actually requires, and is there a written reconciliation cadence.
• Content moderation: are the prohibited-content categories specific enough to apply consistently, and is there a documented escalation path.
• DMCA: is there a designated agent registered with the Copyright Office, is the counter-notice procedure described accurately, and is the repeat-infringer policy in place.
• Section 230 posture: is the platform avoiding the editorial-publisher line that defeats immunity in particular categories.
• Dispute resolution: arbitration forum, class waiver, public-injunctive carve-out, fee-shifting.
• Choice-of-law and choice-of-forum: are they enforceable across the seller and user base.
• Privacy: CCPA/CPRA service-provider terms, GDPR processor flow-down, breach windows.
• IP: scope of license-back to the platform, who owns user-generated content, sublicensing rights.

Deplatforming: what an attorney letter actually does

Deplatforming has become a particular kind of business risk. Sellers and creators with meaningful, often six- or seven-figure businesses can be removed from a platform with limited notice and limited written explanation. The platform's terms usually authorize the removal, the platform's appeal process is often automated, and the seller's business model can disappear in a single week. The question is not whether the platform had the contractual right to remove the seller. The question is whether the platform's own published process was followed, whether the documentation supports the cited reason, and whether the appeal mechanism has been exhausted with documentation that an actual human, not a model, has read.

An attorney letter changes the routing in the same way the payment-processor letter does. It shifts the file out of the standard appeal queue and into a legal or trust-and-safety escalations queue. It cites the specific terms-of-service provision the platform's stated reason does not satisfy. It documents the seller's compliance and the platform's apparent deviation from its own process. In many fact patterns this is enough to get a real second review. In some fact patterns the seller's underlying conduct does not support reinstatement, and the realistic outcome is a structured wind-down to preserve held funds and customer records rather than full reinstatement. I will tell the seller which posture they are in before the letter goes out.

Section 230 in 2026: what is moving, what is not

Section 230 (47 U.S.C. section 230) remains the foundational immunity for interactive computer service providers, but the case law and the legislative attention around it have moved meaningfully since 2020. Gonzalez v. Google LLC (2023) returned the question to the Ninth Circuit on narrower grounds, leaving the core immunity in place. Lemmon v. Snap (9th Cir. 2021) and a string of subsequent cases have tightened the line between "publishing third-party content" (immunized) and "designing product features that cause harm" (not immunized). The platform-side drafting takeaway is concrete: AUP and TOS language that recites Section 230 in haec verba is not enough; the platform has to keep its conduct on the publisher-protective side of the line, and the product design has to back that up.

I also confirm that the platform has filed a current DMCA designated agent designation with the Copyright Office (renewal is required every three years), that the repeat-infringer policy is in writing and visible, and that the platform's counter-notice procedure follows the statutory steps. Section 512 safe harbor compliance is not a one-time setup; it has a renewal clock that platforms forget.

Typical fee ranges

Frequent questions on platform and marketplace work

Does Section 230 protect me from a defamation claim about user content? Generally yes, where the platform is treating third-party content rather than authoring or materially modifying it. There are real limits, including for platforms that materially contribute to the unlawful content under Roommates.com. I will tell the client where the platform's actual product behavior sits relative to the case law.

Can my arbitration clause survive California? Often yes, with the right structure. A class-action waiver paired with a small-claims carve-out and a public-injunctive-relief carve-out (per McGill v. Citibank) is the standard pattern. An overly aggressive arbitration clause that ignores California's unconscionability doctrine under Armendariz may be unenforceable as written, even though arbitration itself is permitted.

How do I respond to a state AG inquiry about my marketplace? First, do not delete anything. Second, do not send the AG a response without counsel review. Third, take the inquiry seriously and treat it as a likely precursor to a CID. State AG inquiries are not press releases; they have process behind them. If the inquiry is in your size class, engage a large firm with state-AG experience.

Can I unilaterally change my seller agreement? Usually yes if the existing agreement contemplates it, often less defensibly than the operator thinks. The cleanest path is a "notice plus opportunity to terminate" mechanism: 30 to 60 days' notice of material change, with a seller right to terminate during the notice period without penalty. This pattern survives unconscionability challenges better than a pure unilateral-change clause.

Does my marketplace need a Digital Services Act presence? If you serve EU users above certain thresholds, yes. The DSA has different obligations for hosting services, online platforms, and very large online platforms. Most US-side marketplaces fall in the "online platform" category once they have meaningful EU user numbers, and the transparency report, illegal-content notice mechanism, and statement-of-reasons obligations apply. I help operators map their product against the categories and draft the public-facing transparency and notice mechanisms.

When to engage me, when to handle it internally, when to go to a large firm

Engage me when you are a platform operator scaling past the templated-TOS stage, when you are a seller or creator with a meaningful business who has just been deplatformed or threatened with deplatforming, or when you are a marketplace operator getting ready to put a new seller agreement out and you want a defensible document. The $575 letter is the right starting tool for a single deplatforming dispute. The redline package is the right starting tool for a v2 seller agreement.

Handle it internally when you have a small hobby marketplace, the seller agreement is borrowed from a competitor's public-facing TOS, and your revenue is below the threshold where any of this paper matters in practice. Spend the time on growth; come back when there is enough revenue that a lawyer's read pays for itself.

Go to a large firm when you are litigating a class action over platform conduct, when you are responding to a state AG, FTC, or EU DSA enforcement inquiry, when your platform has a TikTok-scale user base and Section 230 reform is part of the regulatory conversation you must be in, or when an app-store delisting threatens to wipe out a meaningful share of your enterprise value and you need someone who can also have the off-the-record conversation. Latham, Wilson Sonsini, Munger Tolles, Davis Polk, and Cooley have benches for this. I am the right operator for the contract drafting and the single-counterparty disputes that precede that level of escalation.