The Retail Litigation Center announces the filing of its 100th brief

Milestone Marks Importance Of Retail’s Voice In The Judicial Branch

Arlington , VA, 2017-Apr-05 — /EPR Retail News/ — ​The Retail Litigation Center (RLC) announced the filing of its 100th brief.  The RLC was founded in 2010 to serve as the voice of the retail industry in the judicial branch with the mission of representing retail before all three branches of government – legislative, executive and judicial.

Directed by the general counsel of the country’s leading retailers, the RLC helps courts understand the retail community and the issues of greatest importance to it. RLC briefs have been filed in federal and state appellate courts and cover a broad range of issues, including labor and employment, tax, intellectual property, data security, payment systems and more.

“We are very pleased to reach the milestone of filing 100 briefs over the last seven years.  Helping courts understand the retail community is beneficial regardless of the outcome but we have been pleased to see express recognition of our contribution in multiple cases,” said Deborah White, president of the RLC. “It’s important that the retail industry have a voice in significant judicial proceedings and we look forward to continuing to serve as that voice in the years to come.”

The RLC has filed briefs in its name alone, led retail and business coalition briefs, and lent the retail industry’s voice to the amicus briefs of other significant organizations. Collectively, these efforts now total 100 briefs filed.

In its 100th brief, the RLC supported Macy’s petition for certiorari to the U.S. Supreme Court in Macy’s v. NLRB. At issue is whether the National Labor Relations Board (NLRB) properly certified a unit of cosmetics employees in a single store as an appropriate bargaining unit after a majority of the same store’s employees voted against the union’s bid to organize the whole store. The RLC’s brief explains the importance of the longstanding presumption that the “whole store” is the appropriate bargaining unit in the retail context, as well as the harm that will be caused to retail employees, customers and retail companies if the NLRB’s ruling is allowed to stand.

This brief is just one of the 100 examples of how the RLC informs courts about the retail industry’s perspective on significant legal issues and highlights the potential industry-wide impact of pending cases. A fact sheet highlighting key cases and outcomes from these 100 briefs can be found here.

The RLC is made up of legal executives from many of the country’s largest and most innovative retail companies and is governed by its own board of directors. To learn more about the RLC, visit here, and to read a letter from RLC President Deborah White, visit here.

The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings that affect the retail industry.  The RLC, whose members include some of the country’s largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.

Contact:

Christin Fernandez
Vice President, Communications
Phone: 703-600-2039
Email: christin.fernandez@rila.org

Source: RILA

RILA and NRF oppose the attempt of banks and credit card companies to convince SCOTUS to reinstate unfair settlement terms of MDL1720

Arlington , VA, 2017-Feb-23 — /EPR Retail News/ — Today (2/22/2017), the Retail Industry Leaders Association (RILA) and National Retail Federation (NRF) filed a joint brief opposing the attempt of large banks and credit card companies to convince the U.S. Supreme Court to reinstate the unfair settlement terms of MDL1720 – the lawsuit challenging the anti-competitive behavior of major financial services industry players in setting credit card fees. The case is captioned “Photos, Etc. Corp, et al. v. Home Depot U.S.A., Inc., et al.”

The Second Circuit vacated the MDL1720 settlement after finding that the settlement was developed by conflicted counsel and granted the banks and card networks “permanent immunity” from scrutiny of their anti-competitive practices. In their request for an appeal of the lower court’s decision, the proponents of the settlement claimed to speak for the merchant community.

In the brief filed today, RILA and NRF, the trade associations that actually represent the retail community on a day-to-day basis, explained that the merchant community broadly opposes the settlement and are, in fact, “united in the view that this deal is a bad one, unworthy of resuscitation.”

“Merchants and consumers continue to suffer from the anti-competitive practices of banks and card networks. The plaintiffs’ suggestion that they represent the interests of the broader merchant community defies common sense given the unprecedented level of merchant objection expressed at the Second Circuit and in today’s brief.The Supreme Court should not grant certiorari in this case but, instead, should allow the Second Circuit’s decision to stand, thereby providing the potential for a more reasonable outcome for all parties,” said Deborah White, RILA senior executive vice president and general counsel.

According to the brief:

“Vacating this settlement and correcting the structural flaws that led to it in the first place may allow the parties to go back to the drawing board to reach a settlement with terms that are more fair.”

“Faced with the choice between a “confiscat[ory]” release that “permanently immunizes” defendants’ anti-competitive conduct and no settlement at all—thereby preserving merchants’ future right to pursue these claims— merchants prefer the latter, further demonstrating why certiorari should not be granted.”

The brief concludes:

“For the reasons stated above and in Merchant Respondents’ Brief in Opposition, the petition for a writ of certiorari should be denied.”

The full brief, drafted by Debra L. Greenberger and Andrew G. Celli, Jr. of Emery Celli Brinckerhoff & Abady, LLP, can be read here.

RILA is the trade association of the world’s largest and most innovative retail companies. RILA members include more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad.

Contact:

Christin Fernandez
Vice President, Communications
Phone: 703-600-2039
Email: Christin.fernandez@rila.org

Source: RILA

RILA responds to federal district court decision to remand South Dakota’s case against three large online retailers

Arlington , VA, 2017-Jan-19 — /EPR Retail News/ — The Retail Industry Leaders Association’s (RILA’s) Executive Vice President and General Counsel Deborah White issued the following statement in response to a decision by federal district court judge Roberto Lange today (1/17/2017)  to remand South Dakota’s case against three large online retailers to state court.

“Today’s decision to remand the case to state court will allow the issue to proceed through the state courts and up to the U.S. Supreme Court without an unnecessary jurisdictional burden.

“Retailers have long fought for a level playing field for the collection and remittance of online sales tax. We hope that the South Dakota case will provide the vehicle that Justice Kennedy requested for the U.S. Supreme Court to reconsider the outdated Quill physical presence rule.”

RILA is the trade association of the world’s largest and most innovative retail companies. RILA members include more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad.

Contact:
Brian Dodge
Executive Vice President, Communications and Strategic Initiatives
Phone: 703-600-2017
Email: brian.dodge@rila.org

Source: RILA

Retailers: state anti-surcharge laws are not consumer-protection legislation

Arlington , VA, 2016-Nov-23 — /EPR Retail News/ — Today (11/22/2016) the Retail Litigation Center (RLC) joined by the Retail Council of New York State, Florida Retail Federation and the Food Marketing Institute filed an amicus brief with the U.S. Supreme Court in Expressions Hair Designs vs. Schneiderman. The case takes up the issue of whether state no-surcharge laws unconstitutionally restrict retailers from encouraging customers to use cash or credit cards with lower processing fees.

“Due to lack of competition among card brands, the costs associated with credit card acceptance have skyrocketed so that consumers and retailers now pay billions of dollars in fees to the card companies,” said RLC president Deborah White. “The Supreme Court should recognize that the First Amendment allows retailers to truthfully inform their customers about these costs and let customers decide what is best for their convenience and budget.”

Credit card “swipe fees” add an average of around three percentage points on each sale. For many merchants, swipe fees are among their highest costs of doing business. Without any competition among credit card brands, the brief argues that laws that restrict merchants from communicating the cost of acceptance to customers which “impermissibly impinge” on merchants’ right to speak.

According to the brief:

Simply put, state anti-surcharge laws are not consumer-protection legislation.  They are, instead, anticompetitive, anti-consumer provisions that simply tend to increase card-company profits at the expense of merchants and their customers downstream.  Indeed, laws that prohibit steering consumers away from expensive payment methods are special-interest legislation at its very worst—a giveaway to the card companies that protects an already highly concentrated and highly profitable industry from even the most basic levels of healthy competition.

The full amicus brief can be found here.

RILA is the trade association of the world’s largest and most innovative retail companies. RILA members include more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad.

Contact:

Brian Dodge
Executive Vice President, Communications and Strategic Initiatives
Phone: 703-600-2017
Email: brian.dodge@rila.org

Source: RILA

Retail Industry Leaders Association and Retail Litigation Center launched 2015 Retail Law Conference in San Antonio, TX

General Counsel Discuss Ways To Keep Up With Pace Of Change In Retail

San Antonio, TX,  2015-10-30 — /EPR Retail News/ — Yesterday, the Retail Industry Leaders Association (RILA), in partnership with the Retail Litigation Center (RLC), launched the 2015 Retail Law Conference in San Antonio, TX. Now in its sixth year, the Retail Law Conference offers education and networking opportunities for legal counsel across the retail industry.

Day one of the conference opened with a presentation from The Future Hunters’ Executive Vice President and Chief Operating Officer Erica Orange, who shared insights into social, technological, economic, political, demographic and environmental trends and how they effect the role of retail general counsel. Among the topics discussed were how to identify trends and countertrends and observations about the speeding up of disruptive change and how retail general counsel adapt to that change.

“The general counsel plays a critical role within the retail enterprise. The pace of change in retail is dramatic and general counsel not only have a front-row seat to that change but also an obligation to manage risk,” said Deborah White, executive vice president and legal counsel for RILA, and president of the RLC. “The Retail Law Conference allows these leaders an opportunity to discuss these challenges, share best strategies, and connect with leading experts in the field.”

The first day concluded with a panel titled “Implications of Future Trends for Retail’s Legal Leaders,” moderated by Orange. The panel, which featured general counsel from QVC, Target, and Whole Foods Market, identified the need to build strong relationships with peers across the retail enterprise and to prioritize nimbleness in legal departments in order to keep up with change in the industry.

The three day conference will feature discussion around a range of retail issues, including cybersecurity, innovations in payment options, patents and federal and state regulations.

RILA is the trade association of the world’s largest and most innovative retail companies. RILA members include more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad.

The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry.  The RLC, whose members include some of the country’s largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.

###

Brian Dodge
Executive Vice President, Communications and Strategic Initiatives
Phone: 703-600-2017
Email: brian.dodge@rila.org

RILA: retailers outlined how tax collection obligations applied disparately to businesses substantially disadvantage local business and communities in DMA v. Brohl brief

Issue Currently Before The Tenth Circuit Court Of Appeals

Arlington, VA, 2015-5-27 — /EPR Retail News/ — ​​​In an amicus brief to the United States Court of Appeals for the Tenth Circuit in the case Direct Marketing Association v. Brohl, retailers outlined how tax collection obligations applied disparately to businesses substantially disadvantage local business and communities. The brief was filed jointly by the Retail Litigation Center, the Retail Industry Leaders Association and the Colorado Retail Council.

The case relates to a market distortion reinforced by the 1992 U.S. Supreme Court decision in Quill v. North Dakota. The resulting loophole allows out of state retailers to avoid the obligation to collect and remit the sales tax due on every purchase. By absolving remote sellers of an obligation required of local retailers, the loophole creates the perception of a price advantage, which ultimately costs local retailers business.

For years retailers have pressed Congress to address this issue. In the 1992 Quill decision, the Court said “… that the underlying issue is not only one that Congress may be better qualified to resolve, but also one that Congress has the ultimate power to resolve.”

While federal legislation remains under consideration, states, which have grown frustrated by a lack of action at the federal level, have passed laws aimed at addressing the inequity. However, each law is limited or faces constitutional challenges because of the precedent reiterated in Quill. In DMA v Brohl, DMA is challenging the constitutionality of a Colorado law that requires retailers that do not collect sales or use taxes to notify any Colorado customer of the state’s use tax requirement and to report tax-related information to those customers and the Colorado Department of Revenue. As a matter of policy, RILAhas not supported statutes like the Colorado law, which could surprise consumers with unexpected tax bills while failing to resolve the disparity at the point of sale. However, as a matter of constitutional law, RILAunequivocally supports the power of the states to enact reasonable measures that promote evenhanded compliance with valid tax laws.

“In the absence of final congressional action, it’s no surprise that states are moving independently to ensure fair competition for local businesses and to collect taxes rightfully owed,” said RILA General Counsel and President of the Retail Litigation Center Deborah White. “Until a complete resolution is achieved either by a comprehensive federal solution or a clarification of Supreme Court doctrine, we believe that lower courts should narrowly interpret outdated Supreme Court decisions in order to uphold state remedies.”

According to the brief:

“Because use-tax non-compliance is so quotidian, local retailers effectively operate at a massive disadvantage to their out-of-state competitors—most of whom are currently online retailers rather than the mail-order catalogs the Supreme Court considered in Quill and Bellas Hess.” As the state and local amici explain, after the recent explosion in out-of-state, online retail, the best current estimate is that the uncollected use taxes nationwide exceed $23 billion per year. This is essentially a $23 billion subsidy from state governments to online retailers, allowing them to charge their consumers less money at the point of sale than a local retailer for the exact same goods.”

“Like water finding the lowest point, online sales seem to readily flow to whatever tax-free sources are available. Accordingly, every legal barrier that prevents Colorado from effectively enforcing its complementary use tax almost certainly harms local retailers who should be able to compete for that flow of sales on level ground.

“Not only is this system plainly unfair to local retailers, it is also a rather senseless way to organize a national economy.”

The brief concludes:

“Ultimately, as Colorado has demonstrated, applying the basic principles of dormant Commerce Clause jurisprudence to this case is simple: Even with the new notice and reporting regime in place, the only disadvantaged entities remain the local retailers, who face a tax collection obligation that their out-of-state counterparts do not. For that reason, it is impossible to conclude that interstate commerce has been the object of “discrimination” or placed under an “undue burden.”’

The brief, drafted by Goldstein & Russell, P.C. attorneys, Tom Goldstein and Eric Citron, can be read here.

The Retail Industry Leaders Association is the trade association of the world’s largest and most innovative retail companies. RILA members include more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad.

The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry.  The RLC, whose members include some of the country’s largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.

Founded in 1966, the Colorado Retail Council is a not-for-profit professional trade organization that represents the retail industry throughout Colorado. CRC is comprised of a variety of retail establishments who wish to have a stronger voice in regulatory and legislative affairs.CRC’s mission is to encourage and protect a business-friendly atmosphere throughout Colorado through experienced and professional advocacy at the state legislature. CRC represents over 1500 retail locations throughout Colorado and includes six of the top-ten private employers in the state.

###​

Jason Brewer
Vice President, Communications and Advocacy
Phone: 703-600-2050
Email: jason.brewer@rila.org