Hunton Retail Law Resource

Your product group is planning for the debut of the company’s most exciting new widget. Being responsible company citizens, the group checks in with the legal department to confirm the product regulatory and risk landscape. They start with the seemingly simple questions: “What are the applicable laws and regulations?” and “What are the foreseeable risk scenarios and associated damage potential?” Rather than answers, questions ensue. For example, what are the product components and/or ingredients? Will the product or its components contain anything toxic, corrosive, irritating, sensitizing, flammable or combustible? What are the foreseeable dangers associated with the product? What kind of product claims are envisioned? And so on.

On January 9, 2017, Hunton & Williams LLP announced the formation of a global cross-disciplinary legal team to advise corporations and investors on issues related to sustainability and efforts to increase utilization of renewable energy in connection with clean power procurement goals. The Hunton team brings together lawyers with experience in transactional, finance (including “green bonds” and similar programs), corporate, securities, tax, environmental and real estate law to counsel clients on the complex legal issues arising out of participation in the market for ...

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

New Suit Claims Coca-Cola Falsely Advertised Health Effects of Sugary Drinks

On January 4, 2017, the Praxis Project, a non-profit health organization, sued Coca-Cola, claiming the beverage conglomerate misled the public as to the negative health effects of its sodas. The suit alleges that Coca-Cola peddled industry-supported research deflecting focus from sugary drinks to balancing a healthy lifestyle with more physical activity and argues that Coca-Cola’s marketing created the impression that sugary drinks are not linked to obesity, type 2 diabetes and cardiovascular diseases. The lawsuit seeks an injunction to stop the advertising practices, to require disclosure of all research on the impact of sugary drinks and to require a corrective public education campaign to reduce public consumption of sugary drinks.

Recently, President-elect Donald Trump tapped Andrew Puzder as his pick for Secretary of Labor. Puzder—the CEO of Hardee’s and Carl’s Jr.—has been an outspoken critic of government regulations, including efforts to increase the minimum wage and recent changes to the white-collar overtime exemption. If the Senate confirms Puzder, he will oversee the agencies responsible for these policies and his confirmation could signal a slowdown of anti-business federal regulations from the Department of Labor under President Obama’s Secretary of Labor, Thomas Perez.

On January 3, 2017, a Ninth Circuit panel (the “panel”) weighed in on a growing split among circuits over Rule 23’s ascertainability requirement—in particular, the extent to which a plaintiff must prove there is an “administratively feasible” means of identifying class members.

The practice of incorporating use restrictions in leases is common by retailers to protect their investments in new stores and improvements to existing stores. However, retailers should consider both property and antitrust issues when drafting and enforcing use provisions of a lease. In addition, use restrictions could be used by disgruntled potential tenants as fodder for litigation if the terms have the effect of excluding tenants from prime locations.

Civil penalties continue to serve as a reminder that noncompliance with the Consumer Product Safety Act can be costly. A major retailer agreed to pay a $3.8 million penalty for failure to implement an internal compliance program for the distribution and sale of recalled products. The retailer sold about 600 recalled products over a five-year period, a pattern of behavior that continued even after informing the CPSC that measures were in place to reduce this risk.

The American Tort Reform Association recently released the 2016–2017 edition of its “Judicial Hellholes” report. This annual report identifies venues it deems least favorable for civil defendants based on recent decisions and verdicts, as well as state laws and policies.

This past week, several consumer actions made headlines:

VW and the FTC Agree in Principle on Settlement to Compensate Consumers

FTC Chairwoman Edith Ramirez issued the following statement regarding the announcement of nearly completed agreements resolving the EPA’s Clean Air Act claims and consumer injury claims against Volkswagen:

In August 2016, the Supreme Court of California issued its decision in Bristol-Myers Squibb v. Superior Court, which – as detailed more fully in our earlier post – features an expansive interpretation of specific personal jurisdiction that is difficult to reconcile with the U.S. Supreme Court’s general personal jurisdiction decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014). Those decisions significantly limited the exercise of general personal jurisdiction over defendant corporations to their state of incorporation and principal place of business unless “exceptional circumstances” exist.