Hunton Retail Law Resource

On January 27, 2016, the National Advertising Review Board (“NARB”) went after dietary supplements, recommending that Novartis Consumer Health, Inc. (“Novartis”) discontinue advertising claims that its supplement Benefiber “Helps Maintain Regularity.” The case was originally brought before the National Advertising Division (“NAD”) by a competitor claim from Proctor & Gamble Co., which argued that the fiber contained in Benefiber, wheat dextrin, is not clinically proven to promote regularity. After NAD recommended Novartis discontinue the claim ...

Earlier this month, a group of former delivery drivers filed a putative collective action lawsuit against an online retailer and Courier Logistics Services, LLC (“CLS”). The case is pending before the United States District Court for the District of Arizona. The plaintiffs allege that the two companies willfully misclassified them as independent contractors and denied overtime pay properly due under the federal Fair Labor Standards Act (“FLSA”).

As reported on the Hunton Employment Labor and Law Blog, on January 20, 2016, the United States Supreme Court issued its ruling in Campbell-Ewald v. Gomez, No. 14-857 (U.S.), in which a 6-3 majority held that “an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case,” thus resolving an ongoing split among the Circuits on this issue. While this is seemingly a positive development for the plaintiffs’ bar, the Court expressly left open one critical question that is almost sure to be revisited: whether a defendant can moot a case by tendering—as opposed to simply offering—complete relief to the plaintiff.

Last month, the American Tort Reform Foundation (“ATRF”) released the 2015-2016 edition of its annual “Judicial Hellholes” report. Each year, the report identifies the venues it deems the least favorable for defendants and highlights notable pro-plaintiff rulings and practices in each jurisdiction.

Late last year, as the holidays approached, the Federal Trade Commission issued enforcement guidance on “native advertising” — ads that purposely are formatted to appear as noncommercial and are integrated into surrounding editorial content. The agency’s guidance took two parts: an Enforcement Policy Statement on deceptively formatted ads, and a Guide for Business on native advertising. These long-awaited guidance documents follow on the FTC’s December 2013 “Blurred Lines” workshop on native advertising. Importantly, the FTC notes that its policy statement does not apply just to advertisers but also to other parties that help create the content: ad agencies, ad networks and potentially, publishers.

As reported in the Hunton Employment & Labor Perspectives blog, the National Labor Relations Board (“NLRB”) held that rules in Whole Foods’ General Information Guide prohibiting unapproved tape and video recording in the workplace violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”).

On Tuesday, December 22, 2015, the US Court of Appeals for the Federal Circuit issued a much-anticipated opinion regarding the constitutionality of the prohibition against “disparaging” trademarks. In an 9-3 en banc opinion, the Federal Circuit held that the exclusion of disparaging trademarks under Section 2(a) of the Lanham Act violates the First Amendment.

Many of the marks rejected as disparaging convey hurtful speech that harms members of stigmatized communities. But the First Amendment protects even hurtful speech …. The  government cannot refuse to register disparaging marks because it disapproves of the expressive  messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others.

Please join us via webinar for a dynamic roundtable discussion with our distinguished panel of experts who will share their thoughts on changes in the law, what steps a company should take to comply with the new law and issues employers should consider as they evaluate their employee compensation.

Tuesday, January 19, 2016
11:00 a.m. – 12:00 p.m. PT
(2:00 p.m. ET – 3:00 p.m. ET)

As reported in the Hunton Employment & Labor Perspectives Blog, Retailer Big Lots Stores, Inc. is facing a putative class action in Philadelphia, wherein the plaintiff alleges that the company “systematically” violated the Fair Credit Reporting Act’s (“FCRA”) “standalone disclosure requirement” by making prospective employees sign a document used as a background check consent form that contained extraneous information. Among other things, the plaintiff alleges that Big Lots’ form violates the FCRA because it includes the following three categories of ...

Over the last 18 months, patrons of the nation’s most popular outlet stores have hit well-known retailers, including Gap Outlet, Banana Republic Factory Store and Saks Off 5th, with a flood of class action lawsuits for false and misleading advertising. In early 2014, four members of Congress wrote to the Federal Trade Commission (“FTC”) asking the agency to begin an investigation into the sales practices at outlet stores.