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
International Corporate, Importation & Immigration
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What Trump Means for the Fashion Industry

As the inauguration of President-elect Donald Trump nears, retailers should be paying close attention to expected seismic changes in domestic trade policy that will have an important impact on the fashion industry.
 
Mr. Trump recently announced the nomination of Robert Lighthizer to serve as US trade representative, another indication that the new Administration intends to make good on campaign promises to curb imports that are seen as hurting US businesses. A longtime adviser to US steel industry companies, Mr. Lighthizer served from 1983 to 1985 as deputy US trade representative during the Ronald Reagan. Mr. Lighthizer is known as a master strategist for trade sensitive domestic manufacturers, and he joins Commerce Secretary-Designate Wilbur Ross, a longtime steel industry investor, and economist Peter Navarro, a leading China trade critic, to constitute a trade policy team decidedly skeptical of past free trade conventions.
 

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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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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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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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International Corporate, Importation & Immigration
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US Importers, Managing Director, and Wholesale Customer Face Monetary Damages in Two Recently Unsealed False Claims Act Cases

The False Claims Act imposes liability on persons and companies who defraud the government of monies, whether it is by receiving monies based on false statements or material omissions, or avoiding the payment of monies through false statements or omissions. The statute permits both private parties (whistleblowers) and the government to bring actions against the perpetrators of such fraud in order for the government to collect damages, a portion of which will be paid to the whistleblower, if one is involved.

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Labor & Employment, Class Action Defense
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Please Wait While I Check Your Bag: California Court Certifies Nike Bag-Check Class Action & Converse Workers Seek Class Certification in Similar Case

Long lines and waiting for security inspections are the new normal not only at airports and stadiums, but also at office buildings and theatres—just to name a few places. According to the plaintiff in Rodriquez v. Nike Retail Services, Inc., N.D. Cal. Case No. 5:14-cv-01508, he and other Nike retail employees also had to wait for security inspections when they left for breaks or after their shifts at Nike’s retail stores. The plaintiff claims that he and other employees were required to wait for such inspections after clocking out, and he and a class of Nike retail employees should have been, but were not, paid for the time spent waiting. 
 
On August 19, 2016, the Northern District of California granted the plaintiff’s motion for class certification and certified a class of all current and former non-exempt Nike retail store employees from February 25, 2010, to the present. Opposing class certification, Nike made three overarching arguments:

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Corporate
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The New Partnership Audit Rules—When to Amend Your Partnership or LLC Agreement

The new partnership tax audit rules enacted by Congress on November 2, 2015 could have a dramatic impact on partnerships and their partners (including limited liability companies taxed as partnerships (“LLCs”) and their members). The new rules will apply to audits of tax returns for tax years beginning after December 31, 2017. 

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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.