Hunton Retail Law Resource

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.

On April 10, 2018, SAP announced an updated pricing model to address indirect/digital access to its digital core products—SAP ERP, SAP S/4HANA and SAP S/4HANA Cloud. In addition, SAP announced that it will separate its license sales department and auditing departments. These moves are in response to intense pressure SAP has experienced from existing and potential customers that culminated last year following (1) the decision rendered in favor of the software giant against one of its customers, where £55 million in damages was alleged by SAP, and (2) its $600 million claim against the world’s largest brewer which was recently reported as having been settled.

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.

E-commerce and online shopping are here to stay, but the explosion of new technology and the number of resources available to facilitate online shopping is an opportunity for retailers to embrace new ideas and concepts that will increase foot traffic to their physical locations. The store-within-a-store concept isn’t new, but the type of store-within-a-store retailers have conventionally seen is changing and bringing in new business.

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.

Our retail clients are increasingly deploying cloud services solutions to realize cost savings, gain efficiency and enable scalability across numerous functions. In the past year, we have helped our clients deploy dozens of cloud-based point solutions, Enterprise Resource Planning systems and multi-application platforms. And our clients are not alone. One study forecasts that, in 2020, the worldwide public cloud service revenue will be $411.48 billion. However, while the benefits and popularity of cloud services are clear, cloud solutions are not without risks and challenges.