Hunton Retail Law Resource

The due date for the next Form SD filing for those public companies required to report to the Securities and Exchange Commission (“SEC”) on the inclusion of conflict minerals in their products is May 31, 2016.

Background

In response to a challenge of the SEC conflict minerals rule by a coalition of trade associations, the Court of Appeals for the D.C. Circuit issued an opinion in April 2014. That opinion upheld parts of the rule, but also effectively struck down on First Amendment grounds the portion of the rule that required companies to describe their products as “DRC Conflict Free,” “DRC conflict undeterminable” or “not found to be ‘DRC Conflict Free,’ ” as the case may be. On rehearing in August 2015, the D.C. Circuit reaffirmed its April 2014 decision. The D.C. Circuit then denied an SEC and NGO’s petition for rehearing en banc the following November. Finally, in March 2016, Attorney General Loretta Lynch notified Congress that the federal government would not petition for a writ of certiorari to the Supreme Court. The deadline to file the petition passed in April. Thus, the appellate process has been exhausted.

On May 11, 2016, Hunton & Williams LLP and client Axalta Coating Systems, LLC, a leading global supplier of liquid and powder coatings, were named 2016 ACC Value Champions by the Association of Corporate Counsel (“ACC”). The two were recognized for their efforts in driving significant legal process improvement and savings, which resulted in exemplary change management and a comprehensive approach to value.

On May 10, 2016, Judge Emmet Sullivan of the District Court of the District of Columbia held that the Federal Trade Commission had “met their burden” to show a reasonable probability that Staples’ acquisition of its rival, Office Depot, would likely cause competitive harm and that a preliminary injunction to halt the deal was in the public’s interest. Shortly after the court issued the preliminary injunction blocking the proposed merger, Staples announced that it was abandoning the transaction. 

As reported on the Hunton Insurance Recovery blog, the New York Court of Appeals held that each of several excess liability insurers can be wholly responsible for the entire extent of their policyholders’ asbestos liabilities. The Court further held that “vertical” exhaustion would apply; rejecting the insurers’ attempt to apply “horizontal” exhaustion before upper-layer policies must respond.

The 2016 proxy season is in full swing, and similarly to 2015, the number of shareholder proposals has increased. According to a report by The Manhattan Institute's Proxy Monitor, for Fortune 250 companies with annual meetings scheduled on or before April 30, there was a 7.5 percent increase in shareholder proposals compared to last year. Many of these proposals involve environmental, political and social issues, among others.

This week, the following consumer protection actions made headlines:

Federal Trade Commission:

FTC Obtains Multimillion Dollar Judgment Against Repeat Offender

At the FTC’s request, the U.S. District Court for the Southern District of New York entered a $13.4 million judgment against BlueHippo’s CEO, Joseph Rensin, as well as finding Rensin, BlueHippo Funding LLC and BlueHippo Capital LLC, in contempt for violating a 2008 federal court order concerning BlueHippo’s operation of a deceptive computer financing scheme. The FTC charged BlueHippo with contempt in 2009, alleging that the company contracted with thousands of consumers to finance new computers, but failed to provide those computers, in addition to having a deceptive refund policy. In July 2010, the Court issued an order partially granting the FTC’s motion for contempt. The FTC appealed the compensatory sanctions portion of that order, and in August 2014, the United States Court of Appeals for the Second Circuit vacated the damages portion of the order and remanded the case for a reconsideration of damages. The contempt judgment will go towards consumer redress.

On May 2, 2016, the Supreme Court declined to review the D.C. Circuit’s January 2015 ruling upholding a 2013 FTC decision finding that POM Wonderful, LLC (“POM”) misled consumers in advertising that its 100% Pomegranate Juice and POMx supplements could prevent, treat or reduce the risk of prostate cancer, heart disease and erectile dysfunction.

Recently, HoneyBaked Foods, Inc., Wornick Foods and Foster Farms have been in the news because of different kinds of contamination claims. Syed Ahmad and Matthew McLellan, attorneys on Hunton & Williams LLP’s Insurance Coverage Counseling and Litigation team, authored an article entitled A Primer On Insurance Coverage for Food Contamination Losses, which provides an overview of insurance protection for food contamination issues that retailers, wholesalers and manufacturers may encounter. The article describes the insurance coverage available under traditional ...

This post has been updated. 

In the midst of the press and politics currently surrounding the issue of bathroom policies and laws with respect to transgender employees, it is helpful to remember that government organizations have been issuing guidance to employers to assist them in dealing with these issues, especially in places where gender identity and expression constitute protected characteristics under anti-discrimination laws.

This week, the following consumer protection actions made headlines:

Self-Regulatory Decisions:

Steuart’s Pain Formula Referred to the FTC

The National Advertising Division (“NAD”) referred Steuart Laboratories, Inc., the producer of Steuart’s Pain Formula, to the FTC for the second time after it failed to provide the NAD with substantiation for challenged claims. Steuart was initially referred to the NAD by Steuart’s competitor, EuroPharma, Inc., who challenged several efficacy and testimonial claims.