Listen to this post

Earlier this year, New York Governor Kathy Hochul signed S.B. S1048A into law (which we reported about here) requiring sellers that impose credit card surcharges to post the total price, inclusive of the surcharge, on the item. The law is aimed at preventing consumers from being misled when making a purchase using their credit card. Governor Hochul recently announced guidance to help businesses better implement the law’s requirements. The guidelines, which include an informational video as well as a one page brochure, provide three affirmative ways companies may comply with the guidelines. Businesses can: (1) clearly display both the credit card and cash price; (2) list the higher credit card price and a “discount” for the cash purchases; or (3) use the same price for both cash and credit card purchases. However, business cannot: (1) put a sign on the register notifying consumers of a credit card fee; (2) include a separate line item on the receipt for something like a “convenience fee” or “administrative fee;” (3) advertise all prices include a cash discount that does not apply to credit card purchases; or (4) include a credit card warning surcharge on the item price tag. Given the hefty civil penalties for each violation (up to $500), businesses should consider these updated guidelines closely to ensure compliance.

Listen to this post

Virginia is currently one of just two states, along with Mississippi, without state-court class actions. But in the most recent legislative session, the General Assembly passed Senate Bill 259, which would create a class action mechanism in Virginia state courts. Under Virginia law, the governor can sign the bill, veto it, do nothing (which permits it to become law)—or he can propose amendments to the bill, which would then be sent back to the General Assembly at the “veto session” in April. The governor could veto the bill—or, in the alternative, he could propose an amendment to protect Virginia businesses from the threat of outrageous statutory damages claims under the Virginia Consumer Protection Act.

Continue Reading The Legislation Enacting Virginia’s New Class Action Statute Should Be Amended to Protect Virginia Businesses From In Terrorem Statutory Damages
Listen to this post

In our client alert, A Brief Explanation of the USPTO’s Useful New AI-Assisted Invention Guidance, we discuss the Inventorship Guidance for AI-assisted Inventions, 89 Fed. Reg. 10043 (Feb. 13, 2024), recently released by the US Patent and Trademark Office (USPTO). The guidance provides inventors and patent applicants with a framework regarding AI-assisted inventions and how inventorship of such will be judged at the USPTO. Why should a retailer care?

Continue Reading New USPTO AI-Assisted Invention Guidance Will Affect Retailers and Consumer Goods Companies
Listen to this post

In recent years, consumers filed a spate of class actions claiming that retailers misrepresented the retail price on discounted goods to mislead consumers into thinking they were obtaining a bargain. Many of those cases settled or were dismissed for lack of injury because plaintiffs failed to allege that the purchased item was deficient in an objectively identifiable way.

Continue Reading Does Being “Left to Guess” Establish Standing for Injunctive Relief After TransUnion?
Listen to this post

Companies face significant exposure from privacy related claims. An increasing number of these claims result from efforts at the state level to regulate use of personal data. One key focus is Illinois’ Biometric Information Privacy Act (“BIPA”), but as lawmakers in other states continue to introduce legislation aimed at regulating the use of biometric data, more court decisions may muddy the waters regarding what conduct may be covered under a general liability policy.

Continue Reading Illinois Court Says 7th Circuit Fumbled Illinois Law in BIPA Decision
Listen to this post

Our 2023 Retail Industry Year in Review provides a comprehensive overview of recent developments, issues, and trends impacting retailers, as well as a look ahead at what to expect in 2024. We hope you will take a few minutes to review our new publication released last week.

Continue Reading

Listen to this post

On January 10, 2024, the US Department of Labor (DOL) issued the “Final Rule” that modifies the standard for determining whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule will take effect on March 11, 2024.

Continue Reading More Employees! New Rule Makes It Harder to Classify Workers as Independent Contractors
Listen to this post

On January 26, 2024, the FTC announced that it had entered into an agreement with tractor maker Kubota North America Corporation, settling allegations that Kubota falsely labeled some of its replacement parts as “Made in USA” despite manufacturing those parts entirely overseas. The FTC’s complaint was filed along with a consent order that requires Kubota to pay a $2 million civil penalty, the largest penalty ever assessed for violations of the FTC’s Made in USA Labeling Rule. The consent order also requires Kubota to comply with the FTC’s requirements for Made in USA claims.

Continue Reading FTC Announces $2 Million Penalty Against Tractor Maker for False “Made in USA” Product Claims
Listen to this post

On December 14, 2023, the European Parliament and the European Council reached a provisional deal on the Corporate Sustainability Due Diligence Directive (CS3D). Initially proposed by the European Commission in February of 2022, the CS3D requires certain companies to account for and mitigate adverse human rights and environmental impacts throughout their supply chains, including both their own operations as well as upstream and downstream activities. In November 2022, the European Council adopted the general approach proposed by the European Commission. Since then, the Council and the European Parliament have negotiated the parameters of the CS3D to reach a provisional agreement. While press releases from the Council, the Parliament, and the Commission all confirm an agreement has been reached, the text of the agreed upon CS3D is not yet publicly available. It is likely to be released in early 2024.

Continue Reading EU Corporate Sustainability Due Diligence Directive Nearly Final
Listen to this post

On December 13, 2023, New York Governor Kathy Hochul signed Senate Bill S1048A into law requiring sellers that impose credit card surcharges to post the total price, inclusive of the surcharge. In addition, the surcharge to customers may not exceed the amount of the surcharge charged to the business by the credit card company for such credit card use. Per the legislative history, “This bill is necessary to prevent consumers from being misled when making a purchase using their credits cards.”

Continue Reading New York Law Targets Hidden Credit Card Fees