Retail


Morrison & Foerster provides practical advice and innovative solutions to the challenges and opportunities faced by retailers, helping them thrive in this rapidly evolving industry. Our retail clients include Costco, Gap, The Kroger Co./Ralphs, Otto Group, Restoration Hardware, Safeway, Sears/Kmart and Target, among others.

Consumer Issues

Brand Protection

Our lawyers understand the importance of protecting brand equity, and we are uniquely positioned to help our retailers on a range of branding issues. Lawyers in our Consumer Litigation Group have achieved significant victories in representing retailers in deceptive and false advertising claims and helping clients comply with consumer protection, advertising and marketing requirements. Recognized as one of the nation's leading practices, our Product Liability Group has consistently defended retail companies against product defect, failure to warn and toxic exposure claims. We provide clients with strategic advice in situations requiring the recall or removal of a product from the marketplace, as well as situations in which our clients are the subject of intense regulatory or media attention. Our Trademark Group helps clients on a range of brand infringement matters, from counterfeiting and product knock-offs to diversion.

Consumer Data

Retailers have a tremendous amount of consumer data at their disposal, which can present unique challenges and opportunities for them.

We work with retailers to protect their data in the cloud, at rest and in transit. We help them design and strengthen data security policies and practices to minimize the risks associated with a data security breach. When a security incident does arise, our thorough understanding of all breach reporting requirements allows us to "hit the ground running." We can address public and customer relations issues and are able respond to any threatened litigation or government investigations.

Successful retailers analyze customer data to stay on top of evolving consumer preferences and behaviors and to adjust their business, marketing and advertising strategies as needed. We help retailers ensure that their strategies comply with the various consumer privacy laws, advertising and marketing laws and related consumer protection rules. Our Privacy Group advises retailers on behavioral advertising, retargeting, personalized content, web analytics and other online tracking technologies, as well as the use of location-based data. We regularly create and evaluate compliance programs for local, state, federal and international laws regulating the collection, use and disclosure of consumers' personal information so that our retail clients avoid becoming the subject of a Federal Trade Commission (FTC) enforcement action or a consumer class action.

Customer Engagement

The rapid rise of social media and mobile technologies is providing retailers with new channels to engage customers. We help our clients balance the commercial realities of the retail business with the risks posed by laws and regulations affecting social media. We also help retailers comply with the various advertising and marketing laws and related consumer protection rules. Our Advertising and Marketing Law experience includes all forms of promotion, direct marketing, defense of FTC consumer protection investigations and advertising substantiation analysis, as well as the prosecution and defense of advertising disputes in arbitration before the National Advertising Division of the Council of Better Business Bureaus in New York.

Corporate Transactions

Our Corporate Group assists retailers with a broad range of corporate needs through the corporate life cycle, from early-stage financings through IPOs and acquisitions. We regularly counsel boards of directors on the most sensitive legal issues facing retail businesses.

Corporate and Finance

Our Corporate Finance Group assists retail businesses with corporate issues and financings including initial public offerings as well as the reporting and compliance obligations that come with being a public company. We also advise clients on board governance and shareholder initiatives, including activist proposals and corporate social responsibility initiatives.

By working closely with management teams and regularly attending board meetings, our corporate lawyers have unparalleled first-hand knowledge of the business realities facing the retail industry.

Mergers and Acquisitions

Our lawyers have established themselves as leaders within the industry by advising some of the world's leading retailers on their most strategic matters. Our M&A Group is known for innovative deal structures that allow clients to get deals done, and our international platform in Asia, Europe and the United States allows us to advise retailers that are seeking growth opportunities through cross-border transactions.

Operational and Regulatory Issues

Employment and Labor

Employment and labor issues are a top concern of retailers. Our Employment and Labor Group provides retailers with thoughtful counseling, auditing and litigation avoidance strategies concerning all aspects of the employment relationship. We are recognized for our expertise in wage and hour law, traditional union-employer issues, trade secret protection, employee privacy and everything in between. We assist retail clients on emergency matters requiring immediate relief, litigation or alternative dispute resolution, including those involving worker misclassification, missed meal and rest breaks, "suitable seating," discrimination, wrongful discharge, whistleblower, retaliation, theft of trade secret and employee raiding claims. We have broad experience in all areas of Compensation and Benefits, providing integrated advice that helps our retail clients attract and retain key talent at all levels of the organization.

Information Technology

Retailers continue to adopt new and evolving forms of technology solutions to support their businesses, including an array of web and mobile applications to address the consumer interface as well as IT platforms and solutions to manage transaction flow from point of sale to inventory procurement, management and control, including shipment and delivery to the consumer. Our lawyers have expertise in a range of areas that arise in these matters including mobile payments, consumer credit and PCI compliance, cloud computing, IP protection and regulatory compliance. As an example, our Technology Transactions Group understands private, public and hybrid clouds, the underlying technology, IaaS, PaaS, SaaS, data security and business continuity. We also help our retail clients when they seek to invest millions in upgrading their technology, adopt new technology platforms or acquire or develop new technologies.

Real Estate

Retailers are embracing omnichannel retailing, utilizing mobile, online, catalogue and in-store experiences to drive increased customer traffic and brand loyalty. In this omnichannel environment, retailers may need to re-evaluate their real estate strategy and our Real Estate Group can assist with this process. Our firm has the right mixture of real estate, development, leasing and land use experience that retailers may require in identifying potential store locations; analyzing the legal and regulatory requirements and costs of leasing and acquiring store sites; negotiating and documenting acquisitions and leases; obtaining entitlements and permits; and ensuring compliance with Title III of the Americans with Disabilities Act. We have also represented retail landlords and tenants in commercial lease disputes, breach of contract and commercial fraud cases, and real estate investment and development disputes.

Supply Chain

Our Technology Transactions Group combines industry business experience and practical legal knowledge in areas of intellectual property and commercial law to assist retailers with supply chain optimization strategies including strategic alliances and outsourcing.

We strive to help retailers build strong long-term value chain relationships so they can more effectively collaborate with their partners in identifying risks, minimize supply chain disruptions and adapt the production and distribution network to provide efficient customer service. Our Environment & Energy Group can also help retailers when the business practices of their vendors threaten their brand image by providing counsel on vendor operations, codes of conduct, product sourcing and component input requirements, FCPA and other compliance concerns.

Tax

Retailers cite possible changes in state and federal tax policies as one of their key regulatory concerns. Our Tax Group has a history of crafting creative solutions for our clients' most complex tax challenges and can help retailers successfully navigate the evolving and sometimes confusing tax landscape. We represent some of the best-known retailers in their most significant tax controversies, often addressing the key tax issues affecting their industry, from corporate, excise, franchise, and sales and use tax issues, to unclaimed property tax liabilities and the related compliance risks. We also regularly advise clients on the tax implications of corporate transactions and reorganizations, including multistate and other cross-border transactions.

Barnes & Noble, Inc.
In American Booksellers Association, et al. v. Barnes & Noble, Inc. (Northern District of California), we obtained summary judgment on all monetary claims and settled on very favorable terms during trial on behalf of Barnes & Noble in a Robinson-Patman Act action brought by American Booksellers Association on behalf of its California members and by 26 bookstore plaintiffs.
Gap Inc.
In Ruiz v. Gap Inc., No. C-07-5739 (SC), we secured a victory for Gap in an identity theft case filed by a former job applicant who made claims against the retailer after a third-party vendor's laptop was stolen, containing personal data. The U.S. District Court for the Northern District of California held the clothing retailer was not negligent in its handling of the data, and granted summary judgment to Gap, as well as to third-party vendor Vangent Inc., dismissing negligence claims. Gap's motion for summary judgment was granted in April 2009.
J.C. Penney Company Inc.
In DiPirro v. J.C. Penney Company Inc. (California Superior Court), the claim was favorably resolved for J.C. Penney after replacing original trial counsel in a suit that alleged the sale of decorated glassware containing lead. The matter was resolved prior to appellate briefing, which effectively cut down the trial judge's penalty award and the plaintiff's attorney fee claim by approximately 50%.
National Association of Optometrists & Opticians, et al. v. Lockyer
In National Association of Optometrists & Opticians, et al. v. Lockyer (Ninth Circuit Court of Appeal), we are representing various optical companies in a constitutional challenge to various California statutes in suits that arise out of class action litigation for unfair competition and false advertising. We obtained a preliminary ruling that the statutes are unconstitutional. The case is currently on appeal before the Ninth Circuit.
Target Corporation
We are representing Target Corporation in a case that alleges the company falsely advertised items as “Made in USA” on its Target.com website. Plaintiff Sevidal alleged that he bought three clothing items on the Target.com website because the site stated that the goods were “Made in USA.” When he received the clothing items, however, he discovered that they were in fact made in various different countries. Rather than simply return the clothing for a refund, he elected to file a proposed class action lawsuit against Target in which he sought to pursue claims under the Unfair Competition Law and Consumer Legal Remedies Act on behalf of all persons in California who purchased any item misidentified as “Made in the USA.”
Emeco Industries, Inc. v. Restoration Hardware Inc.
(Northern District of California). Defended Restoration Hardware in a counterfeiting and trademark and trade dress infringement case filed by Emeco Industries, Inc. The case settled shortly after Restoration Hardware successfully moved to dismiss several counterfeiting claims.
Multi-Format, Inc. v. Amazon.com, et al.
(Central District of California). Represented 11 major retailers in litigation brought by Multi-Format, Inc. over DVD technology; complaint was voluntarily dismissed by plaintiff.
99 Cents Only in a Going Private Transaction
Represented the special committee of 99 Cents Only Stores in a $1.6 billion “going private” transaction.
Costco Wholesale Corporation
We represent Costco Wholesale Corporation in an MDL proceeding of 30+ state-based class actions alleging that failure of retailers to disclose that sales of gasoline at retail pumps of volumetric gallons (as opposed to temperature-adjusted gallons) violates numerous state consumer protection laws and constitutes common law fraud, misrepresentation, breach of contract, and numerous other claims. Industry watchers consider the settlement a brilliant public relations move, and public interest groups publicly applauded Costco.
Dickson Concepts’ sale of Polo Ralph Lauren Asia business.
Represented Dickson Concepts International and certain of its affiliates in its sale to Polo Ralph Lauren Corporation of the Polo Ralph Lauren wholesale and retail distribution business in Hong Kong, China, Taiwan, Singapore, and Malaysia.
FCPA Investigation
Represent a senior executive of a global retailer in connection with an investigation by the U.S. Department of Justice (DOJ), the Securities and Exchange Commission (SEC) and other agencies into possible violations of the Foreign Corrupt Practices Act (FCPA) in Mexico, Brazil and elsewhere.
Restoration Hardware, Inc.
Representation of  Restoration Hardware in its 2008 sale for $267 million to a group of private equity investors lead by Catterton Partners, a private equity firm based in Greenwich, Connecticut.
Retail Hazardous Waste Cases
Defended major retailers in a cases alleging that damaged or returned goods such as household cleaners, shampoo and many other products must be managed as hazardous waste. Resolved cases on terms favorable to clients.
SEC Investigation
Represented audit committee of an international catalog retailer in its internal investigation of revenue recognition issues. After report to the SEC, SEC declined to bring any enforcement action.
Shutterfly’s Acquisition of Tiny Prints
Represented Shutterfly, Inc., in its acquisition of privately held Tiny Prints, Inc., a provider of stylish cards, invitations, personalized stationary, and photo books.
Toshiba Tec’s Acquisition of IBM’s Retail Store Solutions Business
Represented Toshiba Tec, Japan’s leading maker of point-of-sale systems and related technology for retailers, in its $850 million acquisition of IBM's Retail Store Solutions business, which offers retail point-of-sale solutions worldwide.
Warburg Pincus
Representation of Warburg Pincus in its $128 million purchase of convertible bonds and warrants with $25 million exercise value issued by Hong Kong-listed Gome Electrical Appliances Holdings Ltd., a leading PRC electronics retailer.

California's Green Chemistry Initiative

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