Hunton Retail Law Resource

In a speech to the New York City Bar White Collar Crime Institute on May 9, 2018, Deputy Attorney General Rod Rosenstein announced a new Department of Justice (“DOJ”) policy intended to ensure coordination among DOJ departments and other enforcement agencies when pursuing penalties against corporations for violations arising out of the same conduct. The policy, incorporated into the U.S. Attorneys’ Manual at § 1-12.100, seeks to avoid imposition of duplicative penalties by “instructing Department components to appropriately coordinate with one another and with other enforcement agencies in imposing multiple penalties on a company in relation to investigations of the same misconduct.”

Hunton Andrews Kurth LLP’s retail industry team is pleased to announce their Band 2 ranking in the 2018 Chambers and Partners guide. Chambers and Partners notes that the team is known for its “expertise in technology, data protection and e-commerce…[with a] robust class action defense practice.” Clients attest that one of the team’s strengths is “innovati[on] on complex litigation.”

In recent years, publicly traded retailers have experienced a significant uptick in interest from investors focused on Environmental, Social and Governance (“ESG”) issues. On April 23, 2018, the Department of Labor (“DOL”) released Field Assistance Bulletin 2018-01 (the “FAB”). The FAB applies to certain retirement plan fiduciaries who make investment and proxy voting decisions that derive from ESG concerns, and may impact investor behavior at public retailers.

Read our full alert.

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.

The California Supreme Court has adopted a new three-part test to determine whether a worker is an independent contractor or an employee under California’s wage orders, which regulate wages, hours and working conditions. The highly anticipated ruling could have wide-ranging effects for businesses operating in California and beyond, as companies try to navigate the new gig economy.

April was an historic month for the CPSC. The agency approved a $27.25 million civil penalty—the largest in CPSC history. The significance of this record amount cannot be overstated. The previous record was held by a $15.45 million civil penalty approved in March of 2016. In fact, except for in 2016, the CPSC has never approved civil penalties that totaled $27.25 million in each of the last ten calendar years. Now, it is has done so in 2018 with just one civil penalty.

As reported on Hunton's Privacy and Information Security Law blog, the FTC has modified its 2017 settlement with Uber after learning of an additional breach that was not taken into consideration during its earlier negotiations with the company. The revised proposed agreement goes beyond the FTC’s original settlement mandating that Uber implement a comprehensive privacy program. The expanded FTC order would require Uber to address software design, development and testing; how the company reviews and responds to third-party security vulnerability reports; and prevention, detection and response to attacks, intrusions or systems failures. Uber also would be required to report to the FTC any episode where it has to notify any U.S. government entity about the unauthorized access of any consumer’s information.

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 ...

Since the United States Supreme Court’s decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014)—and particularly in light of the Court’s more recent decisions in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) and BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017)—courts across the country have applied a more exacting standard for assessing whether defendants can be subject to general personal jurisdiction in a particular forum. Under this standard, a plaintiff must demonstrate that the defendant’s contacts with the forum are so continuous and systematic as to render it “essentially at home” there. In most instances, a company is “essentially at home” only in the state where it is incorporated and the state where it operates its principal place of business. This has been a largely positive result for companies in the retail product industry that may have strategic incentive to avoid becoming subject to “all purpose” general personal jurisdiction in each state in which their products are sold.

As reported on Hunton’s Employment and Labor Perspective blog, earlier this month San Francisco amended its Fair Chance Ordinance, the city and county’s so-called “ban-the-box” legislation that limits how private employers can use an applicant’s criminal history in employment decisions. The amendments, which take effect on October 1, 2018, expand the scope and penalties of the San Francisco ordinance and add to the growing framework of ban-the-box legislation across California and other states.