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, 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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Consumer Product Safety
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FDA Enforcement Against Cosmetics Continues at Record Pace in 2016
  • FDA has issued a record high 19 Warning Letters to cosmetics/personal care product companies in 2016.
  • Companies should promote cosmetics on the Internet with the understanding that FDA may be actively monitoring company websites.
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Consumer Product Safety
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Congress Considering Legislation Giving FDA Additional Regulatory Authority Over Cosmetics and Personal Care Products
  • It is unclear whether Congress and the President will come to agreement and move forward this year on cosmetics and personal care products legislation.
  • Rather, activity this year may lay the groundwork for action by the next Congress in 2017.
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Trademark
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Converse Loses Its Midsole Amidst ITC Trademark Battle

What Made News?

Last month, the US International Trade Commission issued a decision invalidating a trademark for Converse’s iconic Chuck Taylor sneaker. Although Converse did win some of its claims, the ITC decision overall represents a potentially significant setback for Converse after the company took aggressive action to try to stop the sale of shoes that Converse claimed infringed its rights in the Chuck Taylor design. 

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Advertising, Data Collection & Privacy
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What Global Fashion Companies Need to Know About the GDPR If They Collect EU Personal Data

What’s New? (The GDPR.)

Fashion and luxury goods companies need to take heed of yet another data protection regulation. This one could substantially impact them if they collect, process, or transfer EU individuals’ personal data, or plan to do so at some point soon. Specifically, the General Data Protection Regulation (GDPR) is the EU’s new data protection law, recently and finally entered into law. It replaces the old EU data protection regime established by the Data Protection Directive (95/46/EC). The GDPR lays out requirements for organizations that process EU residents’ data and generally provides people increased control over their personal data.

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Trademark
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Name That Circuit Split: Nominative Fair Use in the Second Circuit

In the recent case of International Information Systems Security Certification Consortium v. Security University, LLC, the Second Circuit articulated its test for analyzing nominative fair use claims in trademark infringement cases. While we now know the Second Circuit’s test, the case also highlights a notable circuit split between the Ninth, Second, and Third Circuits regarding nominative fair use. As a result, companies intending to rely on a nominative fair use defense may have varying success depending on the jurisdiction.

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Advertising, Data Collection & Privacy
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Triple Threat: Chinese Ad Company’s Malware Raises Ad Fraud, Cybersecurity, and Privacy Concerns

What’s New?

Recent reports indicate that advertising fraud is not only increasing but is now being run by groups alongside otherwise legitimate advertising businesses. 
 
Cybersecurity company Check Point recently released a report finding that HummingBad—a known malware that takes over Android devices, generates fraudulent advertising revenue, and installs apps on the infected phones—was developed and is controlled by a group of cybercriminals within Yingmob, an otherwise legitimate advertising analytics business based in Beijing. 
 

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Regulatory, Recall & Prop 65
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California Retailers: Use of Thermal Receipt Paper Gets Costly
  • The first NOV involving register receipts was issued by the Center for Environmental Health against a restaurant in Lake Forest 
  • California retailers appear to have two options: post warning signs in the store or switch to electronic receipts or BPA-free paper
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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.