Hunton Retail Law Resource

Innovation and developments in technology bring both opportunities and challenges for the retail industry, and Hunton Andrews Kurth has a sophisticated understanding of these issues and how they affect retailers. On January 23, 2020, our cross-disciplinary retail team, composed of over 200 lawyers, released our annual Retail Industry Year in Review. The 2019 edition, Spotlight on Technology, provides an overview and analysis of recent developments impacting retailers, as well as what to expect in 2020 and beyond. Topics discussed include: braille gift cards as the next wave of ...

Responding to a challenge brought by HelloFresh (Grocery Delivery E-Services, USA), the National Advertising Division (NAD) affirmed that Home Chef (Relish Labs, LLC) offered reasonable grounds on which to base its claims that its meal kit delivery service offers consumers more flexibility than HelloFresh’s similar service. In particular, NAD noted that Home Chef’s “Customize It” feature provides ample variety, permitting consumers to upgrade or increase the amount of protein in their weekly meal selections, or even change recipes entirely by switching out the ...

The theme for this Recall Roundup is effectiveness of recalls. In October, the US Senate Committee on Commerce, Science, and Transportation released an investigative report criticizing the CPSC’s data-handling breaches from the spring. This month, the Office of Oversight and Investigations Minority Staff from the same US Senate committee released a report criticizing the CPSC’s handling of three “high-profile failures to effectively recall dangerous products” last year. The report summarizes the CPSC’s actions related to jogging strollers, infant reclined sleeping products and home elevators. The report concludes that the CPSC’s “failures” are “the result of a pattern of inappropriate deference to industry that has characterized CPSC leadership in recent years.” The report recommends that the CPSC “at a minimum” increase the use of imminent health and safety warnings, fine companies that fail to timely report substantial products hazards and use refunds or consumer-friendly repairs as default remedies.

On January 7, 2020, the Federal Trade Commission announced a settlement with Mortgage Solutions FCS, Inc., d/b/a Mount Diablo Lending, and its sole principal, Ramon Walker, to resolve allegations that the lender violated the FTC Act, the Fair Credit Reporting Act (FCRA) and the Gramm-Leach-Bliley (GLB) Act, by improperly disseminating consumers’ personal information on Yelp in response to consumers’ negative reviews posted to that site. In its complaint, the FTC alleges that Walker posted on Yelp responses that included customers’ nonpublic and personal financial ...

The Ninth Circuit Court of Appeals dismissed a consumer-fraud class action lawsuit against Diet Dr Pepper maker Dr Pepper/Seven Up, Inc., holding that use of the word “diet” in the product’s name was not false or deceptive advertising in the proper context of the soft drink market. The court found that, despite allegations that the product was long promoted with advertising featuring thin models, the common consumer would not read the “diet” in a soda’s brand name to promise the weight loss or other health benefits commonly associated with the word. Rather, given the ...

As reported on December 10, 2019 in Hunton’s environmental law blog, “The Nickel Report”, additive manufacturing, more commonly known as 3D printing, has already found commercial application in various industries and its use is on the rise. 3D printing converts 3D digital models created on a computer or with a scanner into physical objects, usually by successively adding material layer by layer. The process allows manufacturers to make complex designs, rapid prototypes and final products while offering the potential to limit process waste and reduce production costs.

3D ...

Earlier this month, a bipartisan group of senators introduced a bill—the Counterfeit Goods Seizure Act of 2019—to expand the authority of US Customs and Border Protection (CBP) to seize counterfeit goods that infringe intellectual property rights, specifically design patents, at the border. The senators expect the legislation, if passed, to help stem the tide of counterfeits (with a global trade value estimated at over $1 trillion) by preventing their importation into the US.

Last month, the CPSC and three affiliated retailers issued a joint warning to consumers after the retailers discovered they sold nearly 1,200 units of 19 previously recalled consumer products between 2014 and 2019. The range of products at issue varied, including infant sleepers, scarves, portable speakers, barstools, children’s cardigan sets, hoverboards, beer mugs, coffee presses and infant rattles. It remains to be seen whether any further CPSC action, such as a civil penalty or a requirement to implement stronger recall systems and protocols, will be taken with respect to these three retailers.

On December 5, 2019, the Federal Trade Commission (FTC) announced a $4.1 million settlement against A.S. Research, LLC (ASR), the marketer of the dietary supplement Synovia. The Commission alleged that ASR misled consumers by purporting Synovia could dramatically reduce or cure chronic joint pain, stiffness and swelling caused by arthritis, carpal tunnel syndrome, tennis elbow and muscular atrophy.

This month, the US Senate Committee on Commerce, Science, and Transportation released its investigative report on the CPSC’s data handling breaches from the spring. In April, the CPSC issued notices to multiple manufacturers explaining that “nonpublic manufacturer information” was released to the public without complying with Section 6(b) of the Consumer Product Safety Act. Section 6(b) prohibits the CPSC from disclosing information reported by product manufacturers without complying with the procedures for and restrictions on the commission’s public disclosure of such information. Section 6(b) aims to incentivize manufacturers to provide more safety information without fear of public backlash. The Senate committee’s report is troubling. It found that the CPSC made “improper disclosures to 29 unique entities” that “contained information on approximately 10,900 unique manufacturers, as well as street addresses, ages, and genders of approximately 30,000 consumers.” The Senate committee reviewed “hundreds of documents and emails and conducted multiple interviews” to conclude that the CPSC’s violations of Section 6(b) “were due to a lack of training, ineffective management, and poor information technology implementation.” The report cited several examples, such as that CPSC employees had “little to no Section 6(b) training” and were provided with “three different software applications to access and process relevant data without the necessary training on how to use these often confusing and idiosyncratic systems.” The Senate committee ended with a list of recommendations for the CPSC to remedy these problems and avoid future data-handling breaches.

For the past few years, retailers have been confronted with a tidal wave of litigation alleging that their websites are inaccessible in violation of the Americans with Disabilities Act (ADA). Indeed, in 2018 alone, one analysis determined that there were at least 2,258 web accessibility cases filed in federal court, a 177 percent increase from the previous year.^[1] Of these cases, a total of 1,564—over 69 percent—were filed in New York federal courts by just a handful of lawyers, including Jeffrey Gottlieb, Bradley Marks, C.K. Lee, Joseph Mizrahi, Jonathan Shalom and Doug Lipsky, with a surge following two unsuccessful motions to dismiss in cases involving Five Guys and Blick Art.

As reported on the Hunton Andrews Kurth Privacy & Information Security Law Blog last week, on October 21, 2019, the Federal Trade Commission took action against two companies alleged to have engaged in the business of false online reviews and social media influence. In the first case, the FTC entered into a consent decree with cosmetics marketer Sunday Riley, LLC, and the company’s owner, who sell products at Sephora stores and online at Sephora.com. According to the FTC’s complaint, disguised as ordinary consumers, Sunday Riley employees and Ms. Riley herself posted fake ...

With Acting Chairman Ann Marie Buerkle’s earlier announcement  that she will leave the CPSC this fall, this month the commissioners elected Commissioner Robert Adler as the new acting chairman. Adler has been affiliated with the CPSC for more than 40 years. He has served as a commissioner since 2009 and previously served as the acting chairman from December 2013 through July 2014.

This month serves as a reminder to manufacturers, distributors, retailers and importers that consumer products carry strong liability risks when they pose risks of serious injury or death. Steps should be taken to reduce that liability, including the issuance of alerts and recalls to remove the products from the stream of commerce.

The United States Environmental Protection Agency (EPA) has imposed the first penalty for violations of its new rule limiting formaldehyde emissions from composite wood products just over one year after the rule became effective. The $544,064 penalty assessed against construction product supplier Global Sourcing Solutions, a Division of Turner Logistics, LLC (Global Sourcing Solutions), comes as part of a consent agreement between EPA and the company, which will also be required to implement a corrective action plan.

As reported in an August 27, 2019 client alert by the Product Liability and Mass Tort Litigation practice, on August 23, 2019, the United States Environmental Protection Agency (EPA) designated 20 chemicals commonly found in consumer products as “high priorities” for risk evaluation and possible regulation. EPA’s identification of these chemicals comes under the authority conferred by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), which amended the Toxic Substances Control Act (TSCA) in 2016 to give EPA new powers to review and regulate ...

Citing its potentially outdated 1997 Enforcement Policy Statement on US Origin Claims, the Federal Trade Commission has announced that it will hold a half-day workshop in its DC offices on Made in USA advertising on September 26, 2019. Among other things, the agency is seeking input on how consumers interpret Made in USA claims, what the costs and benefits are of the FTC’s “all or virtually all” standard for unqualified claims, whether its current requirement that 85 percent of costs must be attributable to the United States to make an unqualified claim and whether firms that ...

As reported on the Blockchain Legal Resource Blog on August 27, 2019, The Federal Trade Commission reached a settlement with the promoters of chain-based cryptocurrency schemes—Thomas Dluca, Louis Gatto, Eric Pinkston and Scott Chandler—in which the defendants promised recruits big rewards in exchange for a small payment of bitcoin or Litecoin.

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The Federal Trade Commission has stepped up enforcement of the Consumer Review Fairness Act of 2016 (CRFA) which prohibits companies from barring honest consumer reviews of their products and services. While enforcement of the CRFA was initially slow, that changed this year.

With summer in full swing, several U.S. senators have taken a public step to focus the CPSC’s efforts on dangers at the beach. Airborne umbrellas have become a serious hazard to beachgoers. In fact, CPSC data indicates that there have been over 31,000 beach umbrella-related injuries from 2008 to 2017, including the death of a vacationer after she was struck in the torso and killed by a rogue umbrella in Virginia Beach in 2016. In an unusual move, four senators recently issued a letter urging the CPSC to be more proactive about addressing the dangers posed by beach umbrellas. The senators requested more detailed information about umbrella-related injuries, asked about safety standards to prevent such injuries, and encouraged the creation of a public safety campaign to educate the public about the dangers of beach umbrellas.

The National Advertising Division (NAD) affirmed that Reckitt Benckiser, Inc.’s claim of “#1 Carpet Cleaning Brand” for its Resolve Carpet Cleaner product line is supported by the appropriate underlying unit sales data. Responding to a challenge brought by BISSELL Homecare, Inc., NAD noted that Reckitt Benckiser’s “#1 Brand” claim is properly understood to mean that the brand itself, rather than any specific product, holds the highest market share in its relevant category. To that, Nielsen tracking data for units of products sold to consumers in the “carpet cleaning brand” category supports Reckitt Benckiser’s “#1 Brand” sales superiority claim for the Resolve products. Still, NAD noted that Reckitt Benckiser fails to properly identify the time period and scope for the relevant data in its disclaimer. Reckitt Benckiser has agreed to comply with NAD’s recommendation of a modified disclaimer in the future use of its “#1 Brand” claim.

The balance of power at the CPSC will shift after Acting Chairman Ann Marie Buerkle’s surprising announcement that she will leave the CPSC this fall. Buerkle has served as a CPSC Commissioner for six years and the Acting Chairman of the agency for almost half that time. President Trump has nominated Buerkle to be the permanent Chairman three times (2017, 2018, and 2019), but each time the Senate failed to vote on her nomination. Buerkle announced she is withdrawing her 2019 nomination to become the permanent Chairman and to serve an additional seven-year term. She will continue as Acting Chairman until September 30 and will complete the remainder of her term as Commissioner until October 27. She says that afterward, she will “pursue new opportunities that will allow me to continue my life’s work of advocacy and public service as well as spend more time with my six children and eighteen grandchildren.”

Anyone who uses a mobile device knows there are times when hands-free is a necessity. Enter National Products, Inc., a US maker of RAM® Mounts for securely mounting electronic devices—including phones, tablets, laptops and radar detectors—in cars, trucks, bikes and boats, among other vehicles.

The FTC and the FDA jointly sent warning letters to four manufacturers of flavored e-liquid products, citing the absence of particular disclosures in paid social media endorsements as potentially in violation of the Federal Food, Drug, and Cosmetic Act and the FTC Act.

The Federal Trade Commission entered proposed final orders settling June 2018 charges filed against several online marketers of e-cigarettes, dietary supplements and skin creams for deceptively advertising “risk free” trial offers.

In continued enforcement of the Consumer Review Fairness Act (CRFA), the Federal Trade Commission entered consent decrees against two rental management companies that mandated non-disparaging reviews in their consumer contracts.

Court rulings interpreting the Consumer Product Safety Act (CSPA) are rare because parties subject to the act typically resolve any issues directly with the CPSC through administrative actions or settlements. This month, the Seventh Circuit issued such a rare ruling, which makes it more difficult for manufacturers, distributors or retailers to argue the statute of limitations has run on failure-to-report claims.

The CPSC this month issued notices to multiple consumer product companies explaining that the CPSC “recently discovered that nonpublic manufacturer information identifying your company by name along with product model name and/or model number was released in error to the public without following the procedures of 15 U.S.C. § 2055,” which provides procedures for and restrictions on the Commission’s public disclosure of manufacturer and product-specific information. The notice offers few details about the unauthorized disclosure’s nature or scope, raising questions about whether the released data comes from inspections, product safety investigations, recalls, consumer safety complaints or other possibly confidential or commercially sensitive information. This kind of disclosure may have a chilling effect going forward on the candor encouraged between the CPSC and regulated companies by Section 6(b) of the Consumer Product Safety Act.

On April 17, 2019, the United States Environmental Protection Agency (EPA) issued a final “significant new use rule” (SNUR) prohibiting over one dozen uses of asbestos from returning to the marketplace without EPA review and approval.

The National Advertising Division (“NAD”) has recommended that Goya Foods, Inc. toss claims that its Excelsior brand pasta is “Puerto Rico’s Favorite Pasta,” following a challenge by Goya’s competitor, Riviana Foods, Inc. Riviana, the maker of Ronzoni pasta, argued that Goya had not substantiated its “favorite” claim through consumer survey or sales data. Goya responded that its claim was classic puffery. NAD disagreed with Goya, finding that “favorite” is objectively measureable and means a product is preferred over all others. NAD ...

The U.S. Department of Justice announced major news in the world of consumer products this month. A federal grand jury recently indicted two corporate executives for their roles in an alleged scheme involving residential dehumidifiers. The executives were charged with conspiracy to commit wire fraud, conspiracy to defraud the CPSC, and failure to furnish timely information under the Consumer Product Safety Act.

The FTC teamed up with the U.S. Food and Drug Administration, sending warning letters to three companies: NutraPure, LLC, PotNetwork Holdings, Inc., and Advanced Spine and Pain LLC (d/b/a Relievus) that advertised CBD supplements as treatments for serious diseases such as cancer, Alzheimer’s disease, fibromyalgia and “neuropsychiatric disorders.” The two agencies told the companies to steer clear of false or unsubstantiated health claims and instructed the companies to notify the FTC within 15 days of the specific action taken to address the agencies’ concerns ...

The FTC recently sent warning letters to eight marketers of lab-created diamonds concerning implied claims on social media that their diamonds are mined (rather than simulated) and that their jewelry is “eco-friendly” or “sustainable.” The FTC’s Jewelry Guides contain specific requirements for disclosing lab-created properties and avoiding misperceptions that gems are natural. Moreover, the FTC’s Green Guides require that marketers have a reasonable basis for all express and implied environmental benefits claims ...

In a case signaling that the FTC intends to continue its crackdown on review manipulation, snack company UrthBox, Inc. has reached a settlement with the FTC after allegedly misrepresenting that its customer reviews were independent, despite the fact that reviewers had been incentivized with free products and other goodies. According to the FTC, UrthBox also failed to adequately disclose to consumers key terms of its “free trial” automatic renewal programs. The settlement requires UrthBox to take all reasonable steps to remove any reviews or endorsements with which it has a ...

The FTC has announced that it will host a workshop on July 16, 2019, called Nixing the Fix: A Workshop on Repair Restrictions, aimed at examining manufacturer restrictions on consumer and third-party product repairs and the extent to which such restrictions implicate consumer protection. The announcement lists covered topics, including the interplay between repair restrictions and consumer protection laws like those in the Magnuson-Moss Warranty Act; the impact of repair restrictions on extended warranties and service agreements; the types of repair reductions in the United States and extent to which these restrictions are used; and consumers’ understanding about the existence and effects of repair restrictions, among other subjects.

On February 25, the National Advertising Division (“NAD”) referred Nectar Sleep’s “Limited Offer: $125 Off + 2 Free Pillows” claim to the FTC after the advertiser declined to participate in the NAD’s self-regulatory process. The complaint was brought to the NAD’s attention by challenger Tuft & Needle, LLC, who alleged that Nectar’s offer was always available to consumers, and therefore was not a “limited” offer. The challenger also complained that Nectar’s pillows are not independently offered for sale and therefore should not be advertised as ...

On February 26, the FTC announced a settlement with a weight-loss pill company that is alleged to have purchased 5-star Amazon reviews from a third party. The settlement includes a judgment of  $12.8 million (which will be suspended upon payment of $50,000 to the FTC and payment of outstanding taxes), and ongoing compliance requirements for 10 years. Notably, the settlement also requires the company to have competent and reliable scientific evidence substantiating any appetite suppressant, weight loss, “blocks fat,” or disease-treatment claims in the form of human clinical ...

As reported on the Privacy & Information Security Law Blog on February 8, 2019, the European Commission has issued an EU-wide recall of the Safe-KID-One children’s smartwatch marketed by ENOX Group over concerns that the device leaves data such as location history, phone and serial numbers vulnerable to hacking and alteration.

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In a challenge brought by Aquasana, Inc., the NAD determined that Advanced Purification Engineering Corp. (APEC), a manufacturer of water filtration systems, was not responsible for substantiating or correcting “Made in USA” claims made in customer reviews posted on third-party sites.

On January 30, 2019, the US Court of Appeals for the Ninth Circuit issued a unanimous 11-judge opinion striking down San Francisco’s ordinance mandating health warnings on ads for sugary drinks. The judicial panel found that San Francisco’s proposed law violated beverage companies’ First Amendment rights to free speech.

As reported on the Hunton Insurance Recovery Blog on January 18, 2019, policyholders facing any type of products liability scored a win in a recent decision from the District Court for the Northern District of Illinois. The court found that an insurance company must defend its insured against claims arising out of a recall while simultaneously funding the insured’s affirmative claims for recovery.

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Illinois Supreme Court Says Biometric-Data Protection Law Does Not Require Allegation of Actual Injury

As reported on Hunton Andrews Kurth’s Privacy & Information Security Law Blog on January 25, 2019, the Illinois Supreme Court ruled that an allegation of “actual injury or adverse effect” is not required to establish standing to sue under the Illinois Biometric Information Privacy Act.

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On January 7, 2019, California Assemblyman Phil Ting introduced Assembly Bill 161 which would prohibit businesses from providing paper receipts except upon request, citing “significant positive environmental and public health effects.” The goal of the Bill is to reduce consumers’ exposure to chemicals contained on paper receipts, such as BPA, and to reduce the carbon footprint.

The National Advertising Division of the Council of Better Business Bureaus (“NAD”) has settled competing challenges between Kraft Heinz, the maker of Heinz Real Mayonnaise, and Unilever, the maker of Hellmann’s REAL Ketchup.

Retail stores and businesses are generally free to develop their own policies regarding acceptance or non-acceptance of certain forms of payment. For years, many small businesses have refused credit card payments entirely or credit card payments for transactions under a certain amount due to high transaction costs. Smaller retailers may also refuse certain brands of credit cards. However, a different trend has emerged in recent years as an increasing number of retailers are refusing to accept cash and instead accepting only credit/debit and smartphone payments.

In a recent unpublished ruling, the Ninth Circuit affirmed the dismissal of a putative class action lawsuit alleging that Blue Diamond Growers mislabeled its almond beverages by failing to identify products as “imitation milk.” Painter v. Blue Diamond Growers, No. 17-55901 (9th Cir. Dec. 20, 2018).

MillerCoors launched a “Know Your Beer” campaign that included digital vignettes featuring beer customers who were asked to taste two unnamed beers (Miller Light vs. Bud Light), determine which beer had “more taste,” and select their choice. When the identities of the two beers were revealed, the vast majority of participating consumers expressed surprise at having chosen Miller Lite over Bud Light.

In a 2017 interview, Nigel Travis, former CEO of Dunkin’ Brands, stated that “delivery will be the next wave” in the restaurant industry and that it would “be like a revolution,” occurring “faster than anyone thinks.” Travis was not wrong; in fact, recent statistics shared by Melissa Wilson at the 2018 Restaurant Leadership Conference show Travis’ prediction quickly taking hold – 86% of consumers are using off-premise delivery services at least monthly and one third of consumers are using it more than they did a year ago. By some estimates, delivery services are projected to grow at least 12% per year over the next five years. While a handful of restaurants are filling the delivery demand themselves, more and more restaurants are looking to third-party delivery service providers to help them connect with the consumer. In fact, “third-party delivery services like UberEats, Grubhub, and Postmates currently represent $9 billion in restaurant sales today, and they are predicted to account for $16 billion in sales by 2022.”

This past week, several consumer actions made headlines that affect the retail industry.

This past week, several consumer actions made headlines that affect the retail industry.

Federal Court in Florida Grants FTC a Win in Gastric Bypass Alternative Case

A U.S. district court in Florida has ruled in favor of the FTC in its longstanding litigation against Roca Labs, Inc., a seller of weight-loss powders advertised as an alternative to gastric bypass surgery. The court found that Roca Labs had made deceptive weight-loss claims and misrepresented that one of its promotional websites was an objective information site. The court also found that Roca Labs’ gag clause, which the company used to sue and threaten to sue customers who shared negative comments or complained about their dissatisfaction with the product, was unfair under the FTC Act. After additional briefing, the court will decide how much of the defendants’ $26.6 million in gross sales should be awarded in consumer redress.

This past week, several consumer actions made headlines that affect the retail industry.

“Black Truffle Flavored Extra Virgin Olive Oil” Case Dismissed Against Trader Joe’s

On August 30, 2018, the Southern District of New York dismissed class action claims for consumers who purchased Trader Joe’s “Black Truffle Flavored Extra Virgin Olive Oil.” The complaint alleged that the product label contained the words “black truffle” in large black letters, with the words “flavored” and “extra virgin olive oil” in smaller cursive letters underneath. However, DNA testing revealed that the oil did not contain actual truffle, but rather 2,4-dithiapentane, a petroleum-based synthetic injection that imitates the taste and smell of truffles.

On August 29, 2018, despite industry criticism, the California state legislature passed AB 2998 (the “Bill”), which will require that levels of chemical flame retardants in covered products be below 1,000 parts per million. The Bill, which the governor is expected to sign into law, states that starting January 1, 2020, distributing children’s products, mattresses and upholstered furniture containing most chemical flame retardants will be illegal in the state of California. Samples of covered products sold to consumers will be provided to California’s Department of Toxic Substances Control for testing, and if a product is found to be noncompliant, a fine may be assessed against the manufacturer, distributor and/or retailer. 

Just weeks after a federal judge called the science behind the alleged carcinogenicity of glyphosate “shaky,” a California state court jury hammered Monsanto with a $289 million verdict, blaming a former groundskeeper’s non-Hodgkin’s lymphoma on his exposure to the Roundup^® chemical. The August 10, 2018, verdict in Johnson v. Monsanto Co., No. CGC16550128 (California Superior Court, County of San Francisco)—which included $250 million in punitive damages—was just the first in the nearly 8,000 Roundup-related cases currently pending against Monsanto, many of ...

This month marks the 10th anniversary of the Consumer Product Safety Improvement Act (“CPSIA”), which was signed into law on August 14, 2008. CPSIA was a bipartisan response to unsettling events in the world of consumer products that occurred in 2007. During that landmark year, reports emerged about lead contamination in a wide range of consumer products—including children’s toys—that forced the CPSC into the national spotlight and facilitated over 400 recalls. The CPSIA aimed to significantly enhance the CPSC’s regulatory and enforcement power by doubling its budget, increasing its staff levels, prohibiting the sale of recalled products and increasing its civil penalties. For example, before CPSIA, the CPSC could impose civil penalties in the amount of $8,000 per violation, with a maximum of $1.825 million. But in 2008, CPSIA increased significantly the amount of civil penalties to $100,000 per violation, with a maximum of $15 million, adjusted for inflation.

The Federal Trade Commission announced the opening dates of its Hearings on Competition and Consumer Protection in the 21^st Century, a series of public hearings that discuss whether broad-based changes in the economy, evolving business practices, new technologies or international developments might require adjustments to competition and consumer protection law, enforcement priorities and policy. The FTC and Georgetown University Law Center will co-sponsor two full-day sessions of hearings on September 13 and 14, 2018, to be held at the Georgetown University Law Center ...

Consumer lawsuits under the Telephone Consumer Protection Act (“TCPA”) have surged following a 2015 declaratory order from the Federal Communications Commission (“FCC”), which included an expansive interpretation from the FCC of what constitutes an “automatic telephone dialing system” (“ATDS”). The D.C. Circuit’s much-awaited decision in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018) earlier this year set aside much of the FCC’s prior interpretation of what qualifies as an ATDS. ACA International was widely seen as a win for businesses and advertisers, but the decision has done little thus far to stem the tide of TCPA lawsuits, especially as the scope of the decision continues to play out.

This past week, several consumer actions made headlines that affect the retail industry.

FTC Used Car Lot Sweep Finds 70 Percent Compliance with New “Buyers Guide”

Last month, the FTC announced the results of its compliance sweep of 94 car dealerships in 20 cities across the country, conducted after the FTC’s amended Used Car Rule (the “Rule”) took effect earlier this year. The revised Rule requires dealers to display a revised “Buyers Guide” containing warranty and other important information—such as a new description of an “As Is” sale—on the window of each used car offered for sale. According to the FTC, 70 percent of the 2,300 vehicles inspected displayed a buyer’s guide; over half of those with the guide displayed the updated version. As a follow-up, the FTC sent letters to each dealership inspected, detailing their findings and providing businesses with guidance material to help aid in compliance.

As reported on Hunton’s Privacy and Information Security Law blog, on June 28, 2018, the Governor of California signed AB 375, the California Consumer Privacy Act of 2018 (the “Act”). The Act introduces key privacy requirements for businesses, and was passed quickly by California lawmakers in an effort to remove a ballot initiative of the same name from the November 6, 2018, statewide ballot. We previously reported on the relevant ballot initiative. The Act will take effect January 1, 2020.

This past week, several consumer actions made headlines that affect the retail industry.

District Judge Boots Putative Class Action Against L.L. Bean

A federal district judge has dismissed an attempted class action against L.L. Bean involving the company’s long-standing no-questions-asked warranty policy. In February 2018, L.L. Bean announced that it was changing its policy to limit customers’ return period to one year, while committing to “work with our customers to reach a fair solution” if a problem arises more than a year after purchase. The plaintiff alleged that changing the warranty violated both the Magnusson-Moss Act and Illinois state law as an anticipatory repudiation of the guarantee. But the District Judge ruled that plaintiff neither alleged an injury nor had he stated a claim for which relief could be granted.

These past two weeks, several consumer actions made headlines that affect the retail industry.

FTC: Come One, Come All to Discussion of 21^st Century Impacts

On June 20, 2018, the Federal Trade Commission announced that it will hold public hearings on competition and consumer protection in the 21st Century. The FTC is looking to assess whether competition and consumer protection laws must change due to recent economic changes, evolving business practices, technological advancements and international developments. According to the FTC, the hearings may identify areas for enforcement and policy guidance, including improvements to the FTC’s investigation and law enforcement processes, as well as areas that warrant additional study. The FTC is soliciting public comments until August 20, 2018, on a variety of related topics; the hearings are set to take place from September 2018 to January 2019.

Over the past year Hunton & Williams LLP (now Hunton Andrews Kurth LLP) has released articles discussing reform efforts related to the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and the Consumer Financial Protection Bureau (“CFPB”), which was created as a brand-new, start-up independent agency under Dodd-Frank. The first article was a discussion about the questions of the constitutionality of the CFPB due to its arguably unchecked authority to exercise executive power through the CFPB’s investigative and enforcement authority ...

This past week, several consumer actions made headlines that affect the retail industry.

Federal Court OKs Large Warning Requirement for Cigar Products

A federal court has upheld forthcoming health warning requirements that will take up 30 percent of the principal panels of cigar product packages and 20 percent of cigar product advertisements. The court found that the textual warnings were “unambiguous and unlikely to be misinterpreted by consumers,” and that the cigar sellers retained sufficient space on their packaging and advertisements “in which to effectively communicate their desired message.” It also concluded that, under the Zauderer standard for commercial speech, the size, format and other design features of the warning statements were reasonably related to the government’s substantial interest in “providing accurate information about, and curing misperceptions regarding, the health consequences of cigar use.” The case is captioned Cigar Assoc. of Am. et al. v. FDA et al. No. 1:16-cv-1460 (D.D.C.).

This past week, several consumer actions made headlines that affect the retail industry.

Federal Court in New York Dismisses Diet Pepsi Case

A federal judge dismissed a complaint accusing Pepsi-Cola Co. of misrepresenting that its “diet” drinks help consumers lose weight. In the proposed class action, plaintiffs claimed that Diet Pepsi is made with no-calorie sweeteners, which allegedly contributes to weight gain and increased risk of metabolic disease, diabetes and cardiovascular disease. The judge rejected the plaintiffs’ studies, finding that the evidence indicated an association between the sweeteners and weight gain, but not causation. The judge also concluded that reasonable consumers understand that the “diet” label simply means low calorie.

This past week, several consumer actions made headlines that affect the retail industry.

FTC Expands Agency’s Leadership Team with New Consumer Protection Director

Federal Trade Commission Chairman Joseph Simons announced the appointment of Andrew Smith as Director of the agency’s Bureau of Consumer Protection, beginning next week. Smith is Chair of the American Bar Association’s Consumer Financial Services Committee and a Fellow of the American College of Consumer Financial Services Lawyers. From 2001-2004, he served as Assistant to the Director of the Bureau of Consumer Protection and FACT Act Program Manager, leading implementation of the FACT Act rulemaking, proceedings and studies. The vote to install Smith was 3-2, with the FTC’s two democratic commissioners filing statements in opposition.

This past week, several consumer actions made headlines that affect the retail industry.

FTC Swats Misleading Advertising Claims Just in Time for Mosquito Season

The FTC and makers of the “Aromaflage” line of products have agreed to settle charges that Mike & Momo, Inc., deceptively marketed its mosquito-repelling perfume sprays and scented candles. The company agreed to stop making unsubstantiated claims that its products repel disease-carrying mosquitos, work for 2.5 hours, and are as effective as 25 percent DEET. The FTC also alleged that Mike & Momo packed its Amazon storefront with five-star reviews written by the owners and close family members; under the proposed consent order Mike & Momo must disclose any “unexpected material connection” between the company and any endorsers.

On April 26, 2018, the U.S. Senate confirmed by unanimous consent all five pending nominees to the Federal Trade Commission. Once installed, the agency will have a full complement of commissioners for the first time in nearly three years. The FTC will be comprised of three Republicans—Joseph Simons (Chairman), Noah Joshua Phillips and Christine Wilson—and two Democrats—Rebecca Kelly Slaughter and Rohit Chopra.

FTC Commissioners serve staggered seven-year terms. April 27, 2018, is Democrat Terrell McSweeny’s last day at the FTC, and Simons will take over her seat, which ...

The tidal wave of New Jersey Truth-in-Consumer Contract, Notice and Warranty Act (“TCCWNA”) cases may finally slow to a trickle: a long-awaited decision from the New Jersey Supreme Court came down Monday, April 16, 2018, that will likely have broad repercussions on who has standing to sue under the statute.

This past week, several self-regulatory advertising decisions made retail headlines.

Finish Quantum Dishwasher Detergent Beaten by “Unbeatable” Claim

In response to a challenge brought by P&G, the NAD recommended that Reckitt Benckiser LLC, manufacturer of dishwasher detergent brand Finish Quantum, discontinue its claims that the detergent provides an “unbeatable clean.” After reviewing Finish Quantum’s test data, the NAD determined that the “evidence was not sufficiently reliable to support the challenged ‘unbeatable clean’ claim.” Finish Quantum can, however, continue use of its value claim that its product provides “25% more loads,” so long as the claim is qualified by adding the phrase, “based on retail pack size comparison” between Finish Quantum and leading alternatives such as Cascade Platinum. Reckitt Benckiser stated that it will comply with the NAD’s recommendations.

This past week, several consumer actions made headlines that affect the retail industry.

Nectar Brand to Put Its “Made in America” Claims to Bed

Nectar Brand LLC has agreed to stop making unqualified claims that its mattresses were made in the United States. According to the FTC’s complaint, Nectar Brand sells mattresses under several brand names, including Nectar Sleep, DreamCloud LLC and DreamCloud Brand LLC. Nectar Brand’s ads and product labeling included statements that the products were “Designed and Assembled in USA.” In fact, the FTC alleged that the mattresses all are imported from China and that Nectar Brand has no assembly operations in the U.S.

Under the settlement terms, Nectar Brand is prohibited from representing that its products are made in the United States unless it can substantiate its claims. Further, Nectar Brand’s officers are prohibited from misrepresenting the country of origin of its products.

From the outset it was clear that Mr. Mulvaney’s tenure as acting director of the CFPB would be a political flashpoint. His contentious appointment set the stage for a potential sea change in the agency’s enforcement and rulemaking agenda. Many anticipated that the former South Carolina congressman and current director of the Office of Management and Budget would completely overhaul the CFPB. After only three months on the job, Acting Director Mulvaney has already made several moves indicative of his intent to temper the aggressive stances taken by his predecessor, Richard ...

This past week, several consumer actions made headlines that affect the retail industry.

FTC v. AT&T Mobility: “Good News for Consumers” Per FTC Chairman

The Ninth Circuit Court of Appeals rules en banc in FTC v. AT&T Mobility, LLC, that the FTC could challenge AT&T’s broadband data throttling practices, despite the fact that AT&T is a “common carrier” subject to exemption under the FTC Act. The court ruled that the common carrier exemption was activity-based rather than status-based. Therefore, the FTC may challenge a carrier’s non-carriage unfair or deceptive acts or practices. Simply put, “a phone company is no longer just a phone company. The transformation of information services and the ubiquity of digital technology means that telecommunications operators have expanded into website operation, video distribution, news and entertainment production, interactive entertainment services and devices, home security and more.” Acting FTC Chairman Maureen K. Ohlhausen issued a statement praising the Ninth Circuit’s decision as “good news for consumers.”

This past week, several consumer actions made headlines that affect the retail industry.

TA Sciences Prohibited from Making False and Unsubstantiated Health Claims

Telomerase Activation Sciences, Inc. (“TA Sciences”) has agreed to stop making certain claims as to the anti-aging and other health properties of two of its supplement products, in response to FTC allegations that it made false or unsubstantiated claims regarding the products’ health benefits. The FTC’s order prohibits TA Sciences from misrepresenting that its products are clinically proven to reverse human aging, prevent or repair DNA damage, restore aging immune systems or increase bone density, or misrepresenting that such evidence or studies exists. The order also prohibits the company from (1) representing that paid commercial advertising is independent programing; (2) failing to disclose material connections between a product endorser and the company; (3) representing that any endorser is an independent user of the product; or (4) helping anyone else make false or misleading health and efficacy claims about its products.

Two recent decisions out of California—one in state court and one in federal—provide defendants new ammunition for defeating class certification. The Ninth Circuit’s decision in In re Hyundai & Kia Fuel Economy Litigation and the Fourth District Court of Appeal’s decision in Apple Inc. v. Superior Court have important implications for California retailers opposing class certification. But Hyundai also poses challenges to retailers looking to settle class claims on a nationwide basis.

This past week, several consumer actions made headlines that affect the retail industry.

Advertising Agency Pays $2 Million to FTC and State of Maine to Settle Unsubstantiated Weight-Loss Claim

The FTC and the State of Maine have settled a case against ad agency Marketing Architects, Inc. (“MAI”) for MAI’s role in creating and disseminating deceptive radio ads replete with unsubstantiated claims for weight-loss products. MAI had been retained to create the ads by dietary supplement supplier, Direct Alternatives, Inc., whom the FTC and Maine had sued in 2016. Under the agreement with MAI, the ad agency is banned from making any of the seven “gut check” weight-loss claims that the FTC has publicly advised are always false. MAI also must have competent and reliable science to support weight-loss claims and must not misrepresent facts relating to return and cancellation policies of the products marketed. Finally, the order imposes a $2 million judgment on MAI, which may be used to provide refunds to consumers harmed by the conduct.

This past week, several consumer actions made headlines that affect the retail industry.

FTC Crack Down on “American Made” Marketing Claims Continues in Settlement with Bollman Hat Company

The FTC announced a settlement in the third case in the last 12 months involving deceptive “Made in USA” claims. Here, the FTC alleged that the Bollman Hat Company and its subsidiary deceived consumers with marketing campaign slogans of “Made In USA,” “American Made Matters,” and “Choose American” for its hats and third-party products, despite more than 70 percent of their hat styles being wholly imported finished products. The FTC also alleged that Bollman launched an “American Made Matters” seal campaign in 2010 that misled consumers in which and how many products Bollman and the companies that leased the seal were actually made in America.

Several consumer actions affecting the retail industry have made headlines since the New Year.

FTC Issues Multi-Level Marketing Guidance

On January 4, 2018, the FTC issued updated business guidance to multi-level marketers (“MLMs”) to assist organizations in understanding and complying with the law. The FAQ-style guidelines address how core consumer protection principles apply with equal force to MLMs’ interactions with its own current and prospective participants, especially with regard to the compensation structures that MLMs are famous for. The FTC highlights several distinct MLM practices, explaining how each related to the FTC’s regulatory power and focus, and provides advice on how MLMs could best avoid running afoul of the law.

On January 8, 2018, the FTC announced an agreement with electronic toy manufacturer, VTech Electronics Limited and its U.S. subsidiary, settling charges that VTech violated the Children’s Online Privacy Protection Act (“COPPA”) by collecting personal information from hundreds of thousands of children without providing direct notice or obtaining their parent’s consent, and failing to take reasonable steps to secure the data it collected. Under the agreement, VTech will (1) pay a $650,000 civil penalty; (2) implement a comprehensive data security program, subject to ...

This past week, several consumer actions made headlines that affect the retail industry.

Department Stores Settle False Discount Claims

Ann Taylor and its parent company, Ann Inc., have entered into settlements amounting to approximately $6.1 million in two unrelated cases alleging false discounts. Ann Inc. settled allegations that it offered misleading “discounts” on clothes sold through its Ann Taylor Factory and LOFT stores. According to the complaint, the stores claimed to sell goods “marked down” from prices that never actually applied to the goods in question.

The Neiman Marcus Group LLC also has reportedly reached a settlement over similar claims; details of this settlement currently are not available to the public.

This past week, several consumer actions made headlines that affect the retail industry.

Weight-Loss Drug Maker Settles Claims and Sheds $3.7 Million

Makers of BioTherapex and NeuroPlus agreed to refrain from engaging in numerous business practices, including making marketing claims that are not substantiated by scientific evidence. Specifically, they are banned from making any of the seven “gut check” weight-loss claims that the FTC has warned are always false for over-the-counter dietary supplements, like BioTherapex. Additionally, they are banned from making unsubstantiated or false claims about the benefits of NeuroPlus in protecting against Alzheimer’s and dementia. Defendants are also ordered to pay $3.7 million, which will be suspended upon payment of $800,000.

These past two weeks, several consumer actions made headlines that affect the retail industry.

Competitor Pacified After Infant Cereal Maker Discontinues Advertising Claims

Beech-Nut Nutrition Company said it will stop advertising claims connected to infant cereal products that a competitor challenged before the NAD. The challenged claims include “0” grams of sugar, “natural,” “complete” nutrition, and “formulated to be gentle on baby’s tummy,” among others. The NAD will treat the discontinued claims as if it had recommended they be discontinued and Beech-Nut complied.

This past week, several consumer actions made headlines that affect the retail industry.

FTC Seeks Public Comment on Sears’ Petition to Modify Prior Order

Sears Holding Management Corporation has requested that the FTC reopen and modify a 2009 Commission Order settling charges that Sears inadequately disclosed the scope of consumer data collected through the company’s software application. The initial FTC complaint alleged that Sears represented to consumers that its downloadable software application would track users’ “online browsing,” but in fact tracked nearly all of the users’ Internet behavior. Sears petitioned the FTC to modify the Order’s definition of “tracking system,” which the company contends is overbroad and impracticable. The FTC is seeking public comment on Sears’ petition, which it will receive until December 8, 2017.

This past week, several consumer actions made headlines that affect the retail industry.

Hilton Reaches $700,000 Settlement with New York and Vermont Over Data Breaches

The Attorney Generals of New York and Vermont announced a $700,000 settlement with Hilton Domestic Operating Company, Inc., formerly Hilton Worldwide, Inc. (“Hilton”), over two data breaches in 2014 and 2015.

Hilton was notified in February 2015 that it had likely suffered a data breach in December of 2014. In July of 2015, Hilton was notified of a second data breach from the prior three months. Hilton did not provide notice of either data breach until November 24, 2015. New York law requires that businesses provide notice in the “most expedient time possible and without unreasonable delay.” Vermont requires that businesses provide notice of data breaches to the Vermont Attorney General within 14 days of discovery, and within 45 days of discovery to consumers.

Under the terms of the settlements, Hilton has agreed to pay New York $400,000 and Vermont $300,000 and to comply with certain behavior remedies related to their notification and security procedures.

In a move affecting manufacturers, distributors and retailers in the furniture and other wood-based industries, the Environmental Protection Agency (“EPA”) recently issued a series of amendments to its Final Rule implementing the Formaldehyde Standards for Composite Wood Products Act (the “Formaldehyde Final Rule”), which added Title VI to the Toxic Substances Control Act (“TSCA”). The Formaldehyde Final Rule, 40 CFR Part 770, sets formaldehyde emissions standards for composite wood products and includes requirements for the testing, third-party certification, import certification and labeling of covered products by manufacturers of those products. The Final Rule also imposes requirements on downstream fabricators, distributors and retailers to keep records for at least three years demonstrating that covered products they use, distribute and/or sell are TSCA Title VI-compliant.

This past week, several consumer actions made headlines that affect the retail industry.

District Court Sides with FTC Over Weight-Loss Supplement Marketers

A federal district judge in Atlanta issued an order last week finding several supplement marketers in contempt for violating previous court orders and continuing to market weight-loss dietary supplements. The contempt order, which imposes a judgment in excess of $40 million, provides that the FTC may use the money to refund product purchasers. The defendants, including one FTC repeat offender, deceptively marketed their supplements as fat-burning and appetite-curbing, and promised rapid and extreme weight loss.

Have you ever seen an advertisement for a product that seemed a little too good to be true? Truth in advertising is a hotly contested issue, and advertising that may cross the line could be drawn into a dispute with the Federal Trade Commission or into court by a competitor. But did you know that there is another group that monitors and polices advertising? The National Advertising Division ("NAD") of the Better Business Bureau is an industry group set up to review false or misleading advertising and referee complaints between competitors.

This past week, several consumer actions made headlines that affect the retail industry.

App Operator Im-Pacted by FTC Settlement

The Federal Trade Commission has reached a $948,788 settlement with app developer Pact, Inc. over claims that it engaged in unfair and deceptive business practices. Pact users enter into “pacts” to exercise and/or eat better. The app charges between $5 and $50 per missed activity for users who fail to meet their weekly goals. Users who meet their weekly goals were supposed to be rewarded with a share of the money collected from those who did not.

The FTC alleged that Pact charged “tens of thousands” of consumers even if they met their goals or cancelled their participation in the service. Customers had a difficult time getting refunds or even determining how to cancel. The FTC’s complaint alleged violations of the FTC Act and the Restore Online Shoppers’ Confidence Act.

Under the terms of the settlement, Pact must disclose its billing practices, and is prohibited from misrepresenting its billing practices or engaging in unfair billing practices. A judgement of $1.5 million will be partially suspended upon Pact’s payment of $948,788. 

As consumers celebrated lower avocado prices at Whole Foods during the last week in August, views were mixed regarding the FTC’s decision not to challenge the Amazon/Whole Foods merger.

On August 23, 2017, the FTC’s Bureau of Competition issued a short statement that read, in its entirety: “The FTC conducted an investigation of this proposed acquisition to determine whether it substantially lessened competition under Section 7 of the Clayton Act, or constituted an unfair method of competition under Section 5 of the FTC Act. Based on our investigation we have decided not to pursue this matter further. Of course, the FTC always has the ability to investigate anticompetitive conduct should such action be warranted.”

On September 7, 2017, the FTC announced its first-ever case against social media influencers. In its complaint, the FTC alleged that two widely followed gamers, Trevor “TmarTn” Martin and Thomas “Syndicate” Cassell, posted messages endorsing online gaming service CSGO Lotto without disclosing that the two jointly owned the company. In addition to deceptively endorsing the service, the two are alleged to have paid thousands of influencers to promote the CSGO Lotto on social media without requiring those influencers to disclose the payments, which ranged between $2,500 and $55,000. The consent agreement requires Cassell and Martin to clearly and conspicuously disclose material connections between any endorser and promoted products and services. 

On September 5, 2017, the FTC announced that Lenovo, Inc. (“Lenovo”) agreed to settle charges that its preloaded software on some laptop computers compromised online security protections in order to deliver advertisements to consumers. The settlement agreement (the “Settlement”) is between Lenovo, the FTC and 32 State Attorneys General. 

This past week, several consumer actions made headlines that affect the retail industry.

Dona J. Fraser Appointed Director of CARU

The Advertising Self-Regulatory Council and Council of Better Business Bureaus announced that Dona J. Fraser was appointed as Director of the Children’s Advertising Review Unit (“CARU”). Fraser is a leading privacy expert who previously worked for the Entertainment Software Rating Board, a self-regulatory program for the video game industry. CARU is an ASRC program dedicated to monitoring child-directed advertising since 1974.

This past week, several consumer actions made headlines that affect the retail industry.

FTC Extends Comment Period for Paint Claims

On August 7, 2017, the FTC extended the public comment period related to four proposed settlements with paint companies. According to the original complaints from June 2017, Benjamin Moore, Imperial Paints, ICP Construction and YOLO Colorhouse deceptively claimed that their paint products were either emission-free or contained zero volatile organic compounds, including during and immediately after application. 

On August 7, 2017, the FTC announced that it obtained a court order temporarily halting an online marketing scheme that deceptively lured shoppers into expensive negative option plans. The FTC alleged in its complaint that defendants used initial low-cost “trial” offers to hook consumers into expensive monthly shipments for tooth-whitening products without properly disclosing the terms and conditions of the deal or properly obtaining their consent.

As an update to our Recall Roundup’s focus on the fidget spinning craze from June and July, the Consumer Product Safety Commission (“CPSC”) has released spinner safety tips. Although the CPSC still reports no fidget spinner recalls, Acting Chairman Ann Marie Buerkle used the CPSC’s bully pulpit to warn of the choking dangers that result when fidget spinners break and release small pieces. In addition, she references “reports of fires involving battery-operated fidget spinners.” 

Recently, the United States Court of Appeals for the Second Circuit affirmed the district court’s finding in Reyes v. Lincoln Automotive Financial Services that a customer could not revoke prior express consent for purposes of the Telephone Consumer Protection Act ("TCPA") if that consent was provided as consideration in a binding contract. In a ruling that departs from two other circuit decisions, Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013) and Osorio v. State Farm Bank F.S.B., 746 F.3d 1242 (11th Cir. 2014), the Second Circuit held that bargained-for written ...

This past week, several consumer actions made headlines that affect the retail industry.

First Circuit Dismisses Deceptive Advertising Claims against Two Large Retailers

The First Circuit Court of Appeals has held that consumers who brought nearly identical deceptive pricing cases against two large retailers failed to prove that they had been injured. One suit alleged that one company falsely advertised “compare at” prices on sales tags; the other suit alleged that the other company deceptively set lower prices for its exclusive and private-label products and advertised them as discounted. In both cases, the plaintiffs alleged that the mere purchase of the item itself constituted injury. The First Circuit rejected this argument, observing that the consumers (1) had not alleged that the items were poorly made, (2) had received the benefits of their bargains, and (3) that a false sense of a product’s value does not constitute injury.  

As reported on Hunton's Privacy and Information Security Law blog, on July 21, 2017, New Jersey Governor Chris Christie signed a bill that places new restrictions on the collection and use of personal information by retail establishments for certain purposes. The statute, which is called the Personal Information and Privacy Protection Act, permits retail establishments in New Jersey to scan a person’s driver’s license or other state-issued identification card only for the following eight purposes:

This past week, several consumer protection actions made headlines that affect the retail industry.

With the National Retail Foundation estimating 8 to 12 percent growth in U.S. e-commerce in 2017, retailers across the country are vying to compete for a piece of the $400B+ pie. Crucial to their efforts is that retailers offer a seamless online and in-home customer experience, which includes maximizing shipping and returns efficiencies. But equally as important is that retailers remain compliant with FTC regulations and state unfair competition and business practices laws, in order to minimize their exposure to an ever-expanding putative class of the 80 percent of Americans who place online orders each year.

In that vein, we have previously reported and advised on the rise in ADA and TCCWNA claims in 2015 and 2016. Now, over the past few months, a new trend has emerged that has ramifications for virtually every participant in the online retail space: a rise in the number of class action claims challenging allegedly excessive shipping & handling (“S&H”) fees. Regardless whether an online retailer offers flat or incremental S&H fees, standard and expedited S&H options or free shipping with returns-only S&H fees, few are immune from claims that the fees charged do not align perfectly with retailers’ underlying shipping costs.

On July 10, 2017, in a 775-page release, the Consumer Financial Protection Bureau (“CFPB”) issued its long-awaited final arbitration rule (“Arbitration Rule”) pertaining to consumer finance contracts. The Arbitration Rule, which until now was in the comment stage with its final issuance in question, largely mirrors the proposed rule from May 2016, with a few modifications. The Arbitration Rule is important for three reasons: (1) it prohibits consumer finance companies from relying on class action waivers to block class action lawsuits; (2) it prohibits the inclusion ...

On July 11, 2017, the Consumer Financial Protection Bureau (“CFPB”) adopted a final rule that bars financial firms from forcing consumers into mandatory arbitration clauses as a condition of opening an account.