Category: Litigation
Court Partially Excuses Tenant’s Rent Obligations During COVID Shutdown
In the social and economic fallout from COVID, businesses are assessing how best to address their commercial relationships, especially where potentially insurmountable barriers to performance loom large. One clause that concerns performance impossibility has gained increasing recognition in this crisis. “Force majeure” contract clauses long have existed in contracts. Largely...
Avoiding Coronavirus Discrimination Claims in Retail and Hospitality
On the 30 th anniversary of its passage, the Americans with Disabilities Act (ADA) deserves recognition for its continued viability and adaptability in response to contemporary problems and technological change. As the retail and hospitality industries reopen and expand operations during the COVID-19 pandemic, an important component of those...
Supreme Court Affirms "Booking.com" Trademark
On June 30, 2020, The Supreme Court of the United States issued its opinion in United States Patent and Trademark Office v. Booking.com B. V. , holding that a mark consisting of a generic term combined with “.com” is not necessarily generic, and may be eligible for trademark protection...
New Massachusetts Trade Secret Laws Effective October 1, 2018
The retail industry closely guards customer and distribution lists, the software and code for the operation of its websites and downloadable mobile apps, and, in many cases, algorithms used to evaluate and monitor sales trends. In many cases, these valuable assets are not protected by patent, trademark or copyright law. As...
Teavana and Whole Foods: Is the Pendulum Swinging in Favor of Protecting Mall Landlords Against Strategic Tenant Closures?
As mall landlords continue to see substantial tenant vacancies, some landlords have begun to challenge solvent tenants who decide to go dark before the end of their lease. In two important recent cases — Simon Property Group, L.P. v. Starbucks Corporation, Case No. 49D01-1708-PL-032170 (Indiana Superior Court) and Bellevue...
Update: Tip Pooling by Restaurant Owners Remains in Flux
This past April, we reported on a recent Ninth Circuit ruling which upheld a 2011 Department of Labor (“DOL”) rule that prohibits restaurants from instituting tip-pooling arrangements that include both front-of-house staff that are customarily and regularly tipped (such as waiters, waitresses, bellhops, and service bartenders) and back-of-house staff...
Forging a Legal Firewall: Recent Decisions May Shield Retailers from ADA-Based Website Inaccessibility Claims
We have commented on a surge of lawsuits being filed under Title III of the Americans with Disabilities Act (“ADA”). Title III of the ADA prohibits discrimination in the full and free enjoyment of public accommodations on the basis of disability. Where websites and mobile applications serve as extensions...
Class Action Lawsuits on the Rise under New Jersey’s Consumer Protection Laws – Which Retailers Will Be Targeted Next?
Does your retail business conduct sales online? For most retailers today, the answer is likely yes. This means that the recent surge of class action lawsuits against merchants arising out of a consumer protection law in New Jersey called the Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA) merits your...
Supreme Court Says ‘Give Me a ©’ to the Fashion Industry
A recent U.S. Supreme Court copyright decision analyzing cheerleader uniforms may have a profound impact on retailers, and on the fashion industry in particular. On March 22, 2017, the Supreme Court held in Star Athletica, L.L.C. v. Varsity Brands, Inc. that original design elements that are separable from the...
FACTA Check: Credit and Debit Receipts Can Show Injury-in-Fact
In a series of recent decisions that have important implications for retailers, large and small, federal courts have allowed consumer class actions to proceed against businesses for violation of the Fair and Accurate Credit Transactions Act (“FACTA”), even where the consumers did not allege actual damages resulting from the...
Retail Litigation Center: A National and Influential Force In Litigation
The Retail Litigation Center (RLC) is a trade organization attached to the Retail Industry Leaders Association (RILA) that describes itself as “the only organization dedicated to advocating the retail industry's perspective in those judicial proceedings that are most important to the retail community.” Launched by RILA in 2010, the RLC is a...
Claims about Biodegradable Plastics Breakdown Under FTC Scrutiny: Marketers Beware!
In the recent administrative proceeding before the Federal Trade Commission (FTC) against ECM Biofilms, Inc. (ECM), the FTC’s presiding chief administrative law judge (ALJ) ruled that the plastics additive manufacturer ECM violated the FTC Act by deceptively claiming, and providing others with the means to claim, that plastics treated...
It’s Time to Give Your Hiring Processes a Check-up. Are They Compliant?
As your prospective employees are brushing up on their interview skills, it’s also a good time to ensure your hiring practices and procedures are in order. A regular review of employment application processes will keep them up-to-date. Scheduling time with hiring managers and Human Resources to freshen up interviewing...