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
Advertising, Data Collection & Privacy
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Walgreens Settles Pricing Dispute After New York’s Years Long Investigation

What’s the News

Walgreens recently settled with the state of New York over allegations that the drug retail chain misled consumers with its pricing, including value and clearance prices. According to the New York attorney general’s office, an undercover investigation showed that Walgreens was overcharging customers compared to the prices displayed in print advertising and on-shelf tags. Walgreens agreed to pay $500,000 to settle the dispute and has agreed to review and correct the allegedly misleading pricing practices. This should serve as a reminder to retailers in all industries of the need to exercise care in product pricing, as this area has become a common target for regulators and the plaintiff’s bar.

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Labor & Employment
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San Francisco Mandates Employers Provide Paid Parental Leave

California has myriad laws giving employees the ability to take various paid or unpaid leaves. Some cities impose even broader paid sick leave mandates. Now, starting January 1, 2017, larger employers with employees working in San Francisco will have to provide employees with paid parental leave to bond with a new child. On July 1, 2017, the ordinance expands to cover smaller employers.
 
San Francisco’s ordinance is the nation’s first mandate for private employers to provide fully paid parental leave. The law extends to employees who work only part of the time in San Francisco. It also provides new retaliation protections, potentially reaching beyond California law and protecting some paid family leave taken under state law.

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Class Action Defense, Advertising, Data Collection & Privacy
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Retailer Cashes In On Refund Claims for Unredeemed Store Credits

Store credits not redeemable for cash are not unclaimed property under California's Unclaimed Property Law (UPL). In Bed Bath & Beyond Inc. v. Chiang, Case No. 37-2014-12491 (Super Ct. San Diego, Cal. Mar. 4, 2016), the Superior Court issued summary judgment in favor of the national retail chain, Bed Bath & Beyond Inc., holding that merchandise credits not redeemable for cash are not subject to the UPL and also qualify for an exemption under the UPL for gift certificates that do not expire.
 

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Advertising, Data Collection & Privacy
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These Prices are Healthy?!: GNC Sued for Alleged Fake Pricing

What’s the News?

A recent lawsuit filed against GNC serves as a reminder that companies need to ensure that prices listed as “regular prices” are substantiated.

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Intellectual Property, Labor & Employment
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Defend Trade Secrets Act Creates Need to Revise Employee Contracts Governing Use of Trade Secrets and Confidential Information

Fashion companies deal with trade secrets and other confidential information all the time. Whether it is proprietary information regarding customers, pricing, sourcing, product design or manufacturing methods, this valuable intellectual property provides a competitive edge in the market by virtue of the fact that it is not generally known. If you use employment contracts or non-disclosure agreements with your employees restricting their use of the company’s trade secrets or other confidential information (and if you don’t, you really should), then you need to be aware of a provision in the Defend Trade Secrets Act of 2016 (DTSA), which has been passed by the House and Senate and will become the law of the land once the legislation is signed by President Obama.
 

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International Corporate, Importation & Immigration
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C’est Toi Jeans USA - a Trademark or a Country of Origin Reference?

Why does it matter? This seemingly inconsequential distinction may mean the difference between being able to prominently display your embroidered brand trademark on your jeans and being required to place a large “Made in China” marking next to the embroidered brand trademark. This is exactly what US Customs and Border Protection (CBP) attempted to do to the jeans manufacturer JBLU, Inc., whose “C’est Toi Jeans USA” trademark had been in use, but not yet registered.
 

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International Corporate, Importation & Immigration
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CBP Issues Withhold Release Orders On Certain Imports Made By Forced Labor From China

US Customs and Border Protection has provided details on recent changes to the law that prohibits imports made of convict, forced, or indentured labor. The Trade Facilitation and Enforcement Act of 2015 repealed the “consumptive demand” exemption to the ban on imports made by “forced labor.” The repeal became effective on March 10, 2016. 
 
Prior to the changes, there had been an exemption to the ban if goods were not mined, produced or manufactured in such quantities in the United States as to meet the consumptive demands of the United States.
 

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Advertising, Data Collection & Privacy
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J Crew Hit With Class Action over Online Factory Store Prices

What’s the News?

J Crew Group Inc. was recently hit with a nationwide class action lawsuit alleging that the clothing retailer offers fictitious sales on the J Crew Factory store website. According to the complaint, while items throughout the site are offered at “sale” prices, they are never actually sold at the higher “valued at” price listed to advertise potential savings. Asserting that the company’s pricing strategy violates dozens of state consumer protection laws, the complaint seeks compensatory and punitive damages, as well as injunctive relief. This is the most recent case in a litany of class actions attacking allegedly “phantom” sale prices. It serves as an important reminder to retailers nationwide to be careful when advertising sale prices and when using price comparisons.

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Consumer Product Safety, E-Commerce, Online Distribution & Fulfillment, Intellectual Property, International Corporate, Importation & Immigration, Labor & Employment
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Arent Fox Speaks to New Fashion Designers on Setting Up Their Brands

On April 26, 2016The Fashion Institute of Design & Merchandising (FIDM) invited Anthony Lupo, chair of Arent Fox's fashion law practice, to give students and alumni a presentation about the specific legal and business challenges that designers and retailers of fashion and luxury products face in an increasingly globalized and Internet-based world.

Following the presentation, FIDM students and alumni will have the opportunity to participate in a fashion law clinic. These one-on-one meetings with Mr. Lupo and his team are designed to assist new designers with their legal fashion needs and strategy.

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International Corporate, Importation & Immigration
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CBP Issues Withhold Release Orders On Certain Imports Made By Forced Labor From China

US Customs and Border Protection has provided details on recent changes to the law that prohibits imports made of convict, forced, or indentured labor. The Trade Facilitation and Enforcement Act of 2015 repealed the “consumptive demand” exemption to the ban on imports made by “forced labor.” The repeal became effective on March 10, 2016. 
 
Prior to the changes, there had been an exemption to the ban if goods were not mined, produced or manufactured in such quantities in the United States as to meet the consumptive demands of the United States.
 

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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.