Fashion Counsel with Anthony V. Lupo

Arent Fox's fashion law blog offers news, analysis, and insights for the industry from fashion attorney Anthony Lupo.

Fashion Counsel with Anthony V. Lupo
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Court Certifies Class Action Alleging Fictitious “Sale” Prices by J.C. Penney

What’s the News?
 
A California federal judge recently certified a class action lawsuit that alleges violations of California consumer protection laws by J.C. Penney Corporation, Inc. (J.C. Penney). Specifically, the class claims that J.C. Penney engaged in a misleading pricing scheme by promoting “sale” prices on items that may never have been offered for sale at the advertised “regular” price.  This case is a reminder to retailers to ensure their “sales” reflect legitimate discounts on regular priced items. 
 
Background on the Case
 

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Communications, Technology & Mobile
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PayPal Will Tweak User Agreement To Clarify Proposed Autodialing Provisions

On June 29, 2015, PayPal’s General Counsel released a blog post indicating that the company will be tweaking its proposed revisions to its User Agreement regarding PayPal’s ability to send its customers autodialed or prerecorded messages. The changes to PayPal’s terms as originally proposed drew the ire of government regulators, including the Federal Communications Commission and the New York Attorney General. These regulators, as well as numerous consumer groups, asserted that PayPal’s proposed changes would conflict with the Telephone Consumer Protection Act (TCPA) and its provisions prohibiting autodialed or prerecorded calls to consumers without obtaining consumers’ prior express consent. 
 

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Advertisers Beware: New FTC Guidance Signals Tough Stance on Endorsements

The Federal Trade Commission (FTC) recently released new guidance regarding the use of endorsements in advertising. The new guidance is a “must read” for marketers that feature endorsements from celebrities or consumers in their advertising, as well as for any companies that operate contests or sweepstakes on social media.

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Supreme Court to Decide Whether Victim of Privacy Breach Can Recover Damages Without Showing Harm

There is a split among circuit courts over whether a company faced with a privacy breach is subject to liability where a consumer suffers no discernible harm. The Supreme Court will hear a case this fall, Spokeo, Inc. v. Robins, that will settle this important issue. The Court’s decision in Spokeo, expected in 2016, will likely have far-reaching implications for consumer privacy and data breach lawsuits filed under a number of federal statutes.
 
Plaintiff Thomas Robins filed a putative class action against Spokeo in federal court in California under the Fair Credit Reporting Act (FCRA), claiming that Spokeo willfully violated the FCRA by disseminating inaccurate information about him on its website. The district court dismissed Robins’s complaint for lack of standing, reasoning that Robins failed to allege any actual harm that was traceable to Spokeo’s alleged statutory violations. 
 

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Fashion Law Videos
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Senator Byron Dorgan: Why the Fashion Industry Should Monitor the Trans-Pacific Partnership
In this episode of Fashion Counsel, partner Anthony Lupo talks with former Senator Byron Dorgan, senior policy advisor in the Government Relations practice, about why fashion companies should monitor the Trans-Pacific Partnership negotiations.
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Advertising, Data Collection & Privacy
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Court Holds Retailers Can Record Birth Dates of Consumers Using Credit Cards to Buy Alcohol

A California appeals court recently held that a retailer does not violate California privacy law by collecting and recording birth dates of consumers who buy alcohol with credit cards.
 
Plaintiff Mark Lewis purchased alcohol at a Safeway store in California. During the sales transaction, the clerk requested proof of Mr. Lewis’s age and then entered Mr. Lewis’s date of birth into the computerized cash register.
 

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Advertising, Data Collection & Privacy
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Court Finds Online Data Collection Legal under California’s Song-Beverly Act

What’s the News?
 
A California appeals court recently held in Ambers v. Beverages & More, Inc. that retailers are permitted under state law to request customers’ personal information when goods are purchased online but picked up in person. While California’s Song-Beverly Credit Card Act (Song-Beverly) prohibits the collection of personal information in connection with many in-store transactions, courts have found it to have limited applicability to online purchases. Although the plaintiff Michael Ambers did collect the purchased goods in person, the court found that the transaction was completed online and, thus, that defendant BevMo had not violated the law by asking him to provide his address and telephone number. 
 
This case is the latest in an ongoing effort by California courts to determine the scope of Song-Beverly—adopted in the 1971—in the digital economy. 

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Maryland Becomes Latest Jurisdiction to Extend Nondiscrimination Laws to Unpaid Interns

On April 14, 2015, Maryland Gov. Larry Hogan (R) signed into law a measure that extends the applicability of the state's anti-discrimination laws to unpaid interns. The stated purpose of the law is to establish protections for interns and applicants for internships from discriminatory acts that are similar to those extended to regular paid employees. Maryland is following in the footsteps of states like New York, Oregon, and California that have already expanded such protection for interns. 

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Fashion Law Videos
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Fashion Counsel Executive Series: Diane von Furstenberg President & Anthony Lupo Consider the Future of Global Luxury Retail

With each collection, Diane von Furstenberg fearlessly forges new paths for luxury fashion brands with her iconic company. In an interview with the New York Times, she said, "I am not a good CEO, but I have the passion and the force of a founder, and therefore I can make things happen. I can inspire people and motivate people." Her industry leadership combined with her strong business team has kept DVF at the forefront of fashion's future.

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Washingtonian Magazine Reports Anthony Lupo is the Perfect Fit for the Fashion Industry

Arent Fox Fashion Law leader Anthony V. Lupo was recently feature in Washingtonian magazine, which reported that the leading lawyer knows how to “stand out in Washington legal circles.”

When asked where he sees the fashion industry in 10 years, Tony responded: “Brick-and-mortar stores will be showpieces for a brand, but the real transactions will take place online. Virtual avatars so you can try things on, apps that recall and advise your purchases—that’s the future. It will free up a lot of money for the industry because a brand’s biggest expense is real estate.”

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ABOUT ARENT FOX LLP

Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.