Hunton Retail Law Resource

In light of the various restrictions on retail businesses being issued nationwide in an effort to slow the spread of COVID-19—such as the “safer at home” orders issued in Los Angeles County and throughout California last week—one Southern California city is taking action to support local businesses, while continuing to push compliance with the new legal restrictions.

This month’s Recall Roundup starts with the wish that the coronavirus could be recalled. Perhaps the would-be CPSC commissioner who could deliver that recall would be unanimously approved.

On the topic of would-be commissioners, President Trump recently announced his intent to nominate Dr. Nancy Beck to be Chairman and Commissioner of the agency. Beck currently serves as the Principal Deputy Assistant Administrator for the EPA’s Office of Chemical Safety and Pollution Prevention. She previously worked in various capacities at the EPA and Office of Management and Budget during the Clinton, Bush and Obama administrations. Beck also worked as the Senior Director for Science Regulatory Policy at the American Chemistry Council, which is a chemical industry lobbyist group.

As coronavirus (COVID-19) continues to spread globally, precautions such as event postponement, travel cancellations and avoidance of crowds are having a significant economic impact, with many retailers being hit especially hard. After several years of solid market performance and economic growth, panic surrounding COVID-19 has resulted in volatility and significant drops in the stock market, creating less favorable economic conditions for M&A activity.

On March 6, 2020, the FTC announced a settlement with Teami, LLC and its owners over allegations that the company falsely promoted its Teami brand tea products as capable of curing serious health conditions and causing significant weight loss, supported by endorsements by well-known social media influencers who did not adequately disclose that they were being paid to promote their products. According to the FTC, after receiving a warning letter from the FTC in 2018, Teami implemented a social media policy requiring informative hashtags, but failed to enforce it, resulting in ...

Trademarks allow businesses to protect brand names and logos used on their goods and/or services. Unlike other IP, rights in a registered trademark can last indefinitely as long as the mark is in continuous use and all the required maintenance documents are filed. Failure to file such documents results in the cancellation of the trademark registration. Once canceled, the mark can still be re-applied for by the original owner and, in certain instances, another enterprising business. Specifically, assuming the mark has been legally abandoned, the other enterprising business can file its own trademark registration application for the mark.

On February 19, 2020, the Seventh Circuit, aligning with previous decisions of the Eleventh and Third Circuits, held in Gadelhak v. AT&T Services, Inc. that a defendant’s dialing system did not constitute an “automatic telephone dialing system” (ATDS) under the meaning of the Telephone Consumer Protection Act where it was not capable of generating random and sequential numbers. The court analyzed the language of the TCPA and determined that, as written, there were four potential ways to interpret the statutory language. However, based on both basic rules of grammar and punctuation, as well as the technology that was available at the time the TCPA was enacted into law in 1991, the Seventh Circuit decided that the Eleventh Circuit’s interpretation in Glasser v. Hilton Grand Vacations Company was the most persuasive. Therefore, the court concluded that, to be an ATDS, a device must be capable of generating random and sequential numbers. In other words, the Seventh Circuit agrees that a device is not an ATDS merely because it dials from a stored list of numbers.

As previously reported in the Hunton Employment & Labor Perspectives Blog, last Thursday the California Supreme Court ruled that employees must be paid for time spent undergoing security checks before leaving work. The ruling comes two years after the Ninth Circuit Court of Appeals sought guidance on this issue under California law in the case of Amanda Frlekin v. Apple Inc.  The question presented to the California Supreme Court was:  Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices ...

The new year ushered in a series of warnings from the CPSC about inclined infant sleepers posing suffocation risks and dressers posing tip-over risks to consumers. Both products have been under scrutiny by the CPSC over the past year.

On February 12, 2020, the FTC announced its intention to review its Endorsement Guides (formally known as the “Guides Concerning the Use of Endorsements and Testimonials in Advertising”). These guides, first enacted in 1980 and revised in 2009, provide guidance to businesses, influencers and endorsers on how to make sure endorsements or testimonials abide by the requirements of the FTC Act. While advisory in nature, the Commission can take action under the FTC Act if an endorsement or testimonial is inconsistent with the Guides.

Most retailers have yet to fully embrace blockchain technology. Perhaps for good reason. Applying new technology, particularly that aimed at changing legacy systems, comes with certain risks. That being said, cryptocurrencies and blockchain have the potential to transform retail and commercial real estate. As previously shared by this blog, blockchain can be used to streamline inventory management, administer consumer loyalty programs and authenticate high-value assets or the supply chain, generally. Blockchain can also be used more simply to boost consumer sales or process tenant rent payments. Shifting away from the consumer end of retail, below are some novel ways blockchain technology, specifically tokenization, can modernize real estate acquisitions, dispositions and financing.