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
Labor & Employment
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New York Exemption Threshold Set to Increase on Dec. 31

On December 31, 2016, at 12:01am (i.e. not January 1, 2017), the New York State Department of Labor will implement regulations increasing the salary threshold exempting employees from overtime-pay requirements for most private employers. Although implementation of the federal regulations has been delayed, as noted in this Arent Fox alert, New York State is continuing with its regulation. This means that, regardless of the outcome at the federal level, more New York State employees will become eligible for overtime pay throughout the state.

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Advertising, Data Collection & Privacy
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Retailers May Face False Advertising Suits Even If Consumers Learn the “Truth” Before Making a Purchase

Last week, a California appellate court held that consumers can proceed with a class action suit against Banana Republic for false advertising arising from posted signs that advertised a 40-percent off sale without disclosing that the discount only applied to certain items.  This decision will raise red flags for retailers because the customers had learned the truth about the discount’s limitations at the cash register before making their purchases. 
 
Reversing the trial court’s grant of summary judgment on standing grounds, the appellate court ruled that the plaintiffs raised a triable issue of fact as to whether they had suffered an economic injury and whether the unfair business practice or false advertising caused that injury.  The appellate court reasoned:
 

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Advertising, Data Collection & Privacy
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Ho-Ho-Ho! Retailers Beware When Advertising
Retailers should beware this holiday season – and beyond – when advertising sales using a comparison between the “original” and “sale” prices as Macy's, Sears, and JC Penney were just sued by the Los Angeles City Attorney for allegedly deceiving consumers by using a false original “reference price.”

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Real Estate & Leasing, Fashion Law Videos
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Market Alterations: Anthony Lupo and Steve Birkhold Talk Retail Trends
In this episode of Fashion Counsel, partner Anthony Lupo discusses California retail trends and the continued progression of shopping outlets with strategic retail consultant Steve Birkhold (previously CEO of Lacoste, Diesel, BEBE, and Earl Jeans) before a live audience at Bisnow’s Annual Retail & Mixed Use Forum in Los Angeles.
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Consumer Product Safety
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CPSC Public Meeting on Children's Sleepwear Flammability

On December 1, 2016, CPSC’s Office of Compliance, under the leadership of CPSC’s Mary Toro (Director, Office of Compliance, Regulatory Enforcement), held a comprehensive full day seminar on the laws, regulations, and rigorous flammability testing requirements applicable to children’s sleepwear.

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Consumer Product Safety
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FDA to Begin Posting Adverse Event Report Data for Foods and Cosmetics
On December 7, 2016, the Food and Drug Administration published a Notice in the Federal Register announcing that its Center for Food Safety and Applied Nutrition will begin publishing data extracted from adverse event reports the Agency has received for conventional foods, dietary supplements and cosmetics. Until now, such adverse event report data has only been publicly available by submission of a Freedom of Information Act request to the Agency. FDA has stated it is providing adverse event data to increase transparency and improve access to such data for consumers, health care providers, researchers, and academics.

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International Corporate, Importation & Immigration
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What the 2016 Election Means for Your Industry
The election of Donald Trump to be the 45th President and the retention of majorities in the House and Senate by the Republican Party were a surprise to most, but in the tradition of our country, the days after are a time for organizing to do the people’s business. From large corporations to small nonprofits, from urban centers to rural communities, the 2016 elections will have an impact across all sectors of the economy and globally as well. 

Arent Fox's Government Relations practice of attorneys, former elected officials, and political insiders have published a forecast for the legislative and regulatory agenda in 2017 that offers insight into how it could impact key industries and sectors.

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Labor & Employment
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California Paystubs Don’t Have to Include Vacation or PTO Values – But Beware

The California Court of Appeal has held that employers’ itemized wage payment statements do not have to include the monetary value of an employee’s accrued vacation or paid time off (PTO). The decision in Soto v. Motel 6 Operating, L.P. held that, although such amounts are “wages” under California law, an employer does not have to itemize the value of the balance due until the end of employment. To avoid any mistake, however, employers must be mindful that the California paid sick leave law now does require employers to list an employee’s available number of hours of unused PTO or sick leave.
 

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Intellectual Property, Trademark
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Breaking (Up) Bad: Watch-outs for Brand Owners Faced with Ex-Licensee's Trademark Use

A series of recent decisions have heightened the standard for obtaining preliminary injunctive relief for trademark infringement. This trend presents unique challenges for brand owners seeking to enjoin unauthorized “holdover” use of a trademark by former franchisees or licensees. This situation commonly arises when a franchisee or licensee continues using a franchisor or licensor’s trademarks following termination of a franchise or license agreement.
 
Under the test for preliminary injunctive relief in most jurisdictions, a plaintiff must establish:

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Press Releases, Intellectual Property, Copyright
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Fashion Law Institute and Arent Fox File Amicus Brief on Behalf of Designers in Supreme Court Copyright Case

New York, NY — On September 21, the Fashion Law Institute at Fordham filed an amicus brief with the Supreme Court of the United States in the matter of Star Athletica LLC v. Varsity Brands, Inc., in support of continuing copyright protection for designs incorporated into useful articles, including the cheerleader uniform designs at issue in the litigation.
 

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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.