Hunton Retail Law Resource

The ongoing effects of the Covid-19 pandemic and other recent socio-political events will present a number of disclosure questions for publicly-traded retailers completing their second fiscal quarters.

Two putative class actions recently filed in the Northern District of California—Ambrose v. Kroger Co. and Nguyen v. Amazon.com, Inc. —preview a new theory of consumer claims relating to per- and polyfluoroalkyl substances (PFAS). Rather than rely on alleged omissions or representations about health risks, the plaintiffs claim that they relied on marketing statements that indicated the products they purchased (“compostable” disposable dinnerware) were disposable and would completely degrade over time and that the presence of PFAS in the products means those marketing statements were false. That focus on the environmental persistence of PFAS, rather than the substances’ alleged health effects, marks a new approach to PFAS consumer class actions.

On May 19, 2020, the US Department of Labor (DOL) issued its final rule likely expanding the FLSA’s Section 7(i) overtime exemption for commission-based workers in retail and service industries by withdrawing the long-standing, historical list of businesses that the DOL identified as falling within or outside of what it deemed to be a retail or service establishment.

Under the final rule, which was issued without notice and comment and takes effect immediately, the DOL removes the lists of business with “no retail concept” and that “may be recognized as retail” from the ...

In an 8-1 decision, the Supreme Court held in U.S. Patent and Trademark Office v. Booking.com that "generic.com" marks may be registered trademarks or service marks when consumers do not perceive them as generic.

3M Company (3M) is a leading manufacturer of N95 respirators. According to 3M, medical workers and public-health professionals consider 3M-branded N95 respirators to be “the gold standard.”

At a June 16, 2020 hearing, the US Senate Committee on Commerce, Science and Transportation considered President Trump’s nomination of Nancy Beck to the CPSC.  In March, Trump announced his nomination of Dr. Beck to be Chairman and Commissioner of the CPSC.  The CPSC currently consists of two Republican appointees and two Democratic appointees with one of the Democratic appointees—Robert Adler—serving as Acting Chairman.  This month’s committee hearing included tough questions from Democrats and Republicans about how Dr. Beck would prevent unauthorized releases of confidential business information held by CPSC – a problem that has plagued the agency recently.  Dr. Beck was also quizzed about her prior experience as the Senior Director for Science Policy at the American Chemistry Council, which is a chemical industry lobbyist group.  Senate Democrats have expressed opposition to Dr. Beck’s confirmation as well as one Senate Republican on the committee – Shelley Moore Capito (R-WV).  If every Democrat on the committee plus Senator Capito oppose the nomination, then the committee’s vote count is at a 13-13 tie, signaling that the nomination may not proceed to a full Senate floor vote.

Due to the novel coronavirus (COVID-19), many San Francisco businesses have closed in order to contain the spread of the pandemic, resulting in declining revenues and widespread business interruption. These economic conditions have led to employee layoffs across San Francisco. As San Francisco employers work to restore their business operations in the wake of COVID-19, they should be aware of new rules that may affect how they rebuild their workforce.

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In April 2020, the National Advertising Division (NAD) rolled out a Fast-Track SWIFT option (“Single Well-defined Issue Fast Track”) for certain cases under review. The new SWIFT track expedites the process for single-issue disputes that do not require complex evidence or argument and meet certain parameters. On June 10, the NAD published its first trio of SWIFT decisions that illustrate what participants can expect from the new process.

One novel feature of the 2020 proxy season has been the surge in virtual shareholder meetings. For example, one provider of virtual meeting services reported four times as many virtual shareholder meetings as last year. Although the rise in virtual meetings this year resulted from safety precautions surrounding COVID-19, after weighing the benefits and becoming more comfortable with conducting business remotely, it is likely that many companies will continue to use virtual shareholder meetings or hybrid in-person and virtual meetings in the future.

On Monday, the US Supreme Court agreed to consider whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator. It is a question on which circuits have been divided. On one hand, some courts have found that the gateway question of arbitrability—whether the claims fall within the scope of the carve-out provision—is for the arbitrator to decide. On the other, some courts have found that, where there is a carve-out provision, there is no clear and unmistakable evidence of the parties’ intent to delegate questions of arbitrability to an arbitrator, and questions of arbitrability are to be decided by the court. Undoubtedly, resolution is necessary.