April 3, 2021

LATEST UPDATES

FEATURED EVENT

IN FASHION: Kelley Drye's 7th Annual Fashion & Retail Law Summit

Wednesday, April 14, 2021 | 9:30 AM - 1:30 PM ET

Please be our guest at the 7th Annual Kelley Drye Fashion and Retail Law Summit. The virtual event will include a half day of presentations addressing hot button issues that influence the fashion and retail industries. The topics to be presented were selected by many of you who responded to our IN FASHION 2021 planning survey, including IP Issues, live event cancellations, retailers’ concerns in a Biden Administration, the future of personalized advertising, and more sessions will be added.

This seminar is by invitation only. If you have an in-house colleague who would like to receive an invitation, please contact infashion@kelleydrye.com.

We hope that you can join us!

IN FASHION 2021 PROGRAMS

  • The Future of Personalized Advertising for the Fashion Industry
    A Q&A with Facebook’s Director of Privacy, Civil Rights, and Ads, Pedro Pavon and Alysa Hutnik, partner and chair of Kelley Drye’s Privacy and Information Security practice. This panel will discuss key privacy legal and industry developments and what they mean for personalized advertising strategies for the Fashion Industry.
  • This Season’s Collection of IP Hot Topics
    Andrea Calvaruso, chair of Kelley Drye's Trademark and Copyright practice and Intellectual Property partner Michael Zinna will discuss some of the significant IP developments and emerging trends that fashion and retail companies should prepare for in 2021 and beyond.
  • What the Fashion and Retail Sector Can Expect from the Biden Administration and the 117th Congress
    Government Relations and Public Policy group co-chairs Dana Wood and Paul Rosenthal will take a look at the legislative and policy issues that are top of mind for the apparel and retail sector, and share their thoughts on which priorities are most likely to advance in the first two years of the Administration.
  • Navigating the ESG Disclosure Movement – Corporate Responsibility or Integrated Business Strategy?
    The health, economic, and social crises that unfolded in 2020 presented companies and brands with new challenges in meeting stakeholder expectations on issues like climate, sustainability, racial justice and gender equality. In this Q&A session, VF Corporation’s Vice President for Government Affairs and Global Impact, Luis Benitez and special counsel Jennifer McCadney, will discuss the evolution of Environmental, Social and Governance (ESG) disclosures – both mandatory and voluntary – and the opportunities and risks that accompany those communications.
  • The Show Must Go On: Legal Issues When Planning for Live Events
    Live events always require considerable planning and effort. And, with the COVID-19 pandemic seemingly waning, 2021 may see the return of large in-person gatherings as well as the continuation of virtual experiences. Debra ShuwargerSenior VP and Associate General Counsel at Endeavor, and Michael Lynch, chair of Kelley Drye’s Litigation practice, will discuss lessons learned during the COVID-19 pandemic and how to manage legal risks when running live events to ensure that the many moving pieces fall into place.
  • Never Out of Style: Advertising Law Update

    The topics are familiar but the concerns are new. Christie Grymes Thompson, chair of Kelley Drye’s Advertising law practice, and partner Gonzalo Mon will discuss today’s hot issues including, sustainability and other green marketing claims, “Made in USA” and related origin claims, use of influencers and product reviews, and COVID-19 related pitfalls to avoid.

 

LATEST UPDATES 

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Supreme Court Defines ATDS Under The TCPA

On April 1, 2021, in a unanimous decision, the Supreme Court ruled that the definition of an automatic telephone dialing system (“ATDS”) under the TCPA is limited by the plain grammar of the statute itself.  The Court, in a decision authored by Justice Sotomayor, held that a device must have the capacity to use a random or sequential number generator in either storing or producing a telephone number, to qualify as an ATDS under the TCPA.  Facebook, Inc. v. Duguid et al., Case No. 19-511 (2021).

Our preview of the Supreme Court’s consideration of Duguid can be found here and our analysis of the oral argument can be found here The Court’s decision is discussed below, and its opinion can be found here.

No More Deference for Amazon’s Reference Prices

As many retailers and manufacturers that sell directly to their customers know well, sale and similar promotional pricing practices have been the targets for regulators and class action plaintiffs for several years, and Amazon is back in that spotlight, this time in a lawsuit filed by the state of California. There has been a wide range of results with these  “reference price” cases. While courts have dismissed some, such as the “Compare At” case against Ross Stores,  a California court issued a $6.82 million civil penalty against Overstock.com for deceptive comparative price advertising, and many companies have settled for significant monetary payments to avoid the costs of litigation.

 

FDA Is Still Keeping Up With The Kardashians

In 2015, we noted that the FDA took issue with a social media post in which Kim Kardashian praised a morning sickness drug. Although Kim did disclose that she was working with the drug company, the FDA alleged she failed to comply with prescription drug advertising requirements because she didn’t disclose the “consequences that may result from the use of the drug as recommended.”

This month, the FDA expressed similar concerns about a video in which Khloe Kardashian touted Biohaven’s Nurtec ODT migraine treatment. In an untitled letter to Biohaven, the FDA writes that Khloe’s appearance on “The View” in July 2020 features misleading claims about the drug’s efficacy. Although Khloe claims that Nurtec ODT provided her relief in as little as 15-to 30 minutes, FDA asserts that that claim isn’t supported by the clinical trials and Khloe’s “personal experience does not adequately support the suggestion that the drug will” provide relief for others in the same time frame.

PODCASTS

AD LAW ACCESS

Find the Ad Law Access and other Kelley Drye Podcasts on our Insights Page or wherever you get your podcasts.

 

TOP READS

A collection of the top older reads this past week:
 

Two’s Company: Virginia Has a Comprehensive Data Privacy Law

NAD Finds That Humor Doesn’t Always Indicate Puffery

Bad Break for belVita Breakfast Biscuits

NAD Releases Tips for Influencer Marketing

Dietary Supplement and Personal Care Products Regulatory Highlights – February 2021

California Privacy Protection Agency Appointments Announced

Chopra Navigates Questions and Predicts Priorities at Friendly CFPB Nomination Hearing

NAD Decision Suggests Expansive Definition of Advertising

NAD Addresses Math Problems in Counting Reviews

Further Amendments to CCPA Regulations Are Approved and in Effect

No More Deference for Amazon’s Reference Prices

Food Litigation and Regulatory Highlights – February 2021

Second Circuit Limits Copyright Damages To Those Incurred Within Three Years Prior to Suit

Senators Circling Antitrust Targets, But Not Yet Closing In

Does the NAD’s Capillus Decision Baldly Contradict the FDA?

CFPB Rescinds “Abusive” Policy Statement, Signaling Broader and More Aggressive View of “Abusive” Authority

Peloton Faces Uphill Ride on “Ever-Growing” Claims

Competition Policy Gets a Top Spot in the White House

The Pink Tax: Discrimination or Actual Differentiation?

Read This Before Scanning A Driver’s License In New Jersey

Employers Beware: The Illinois Artificial Intelligence Video Interview Act Is Now in Effect

For a compendium of articles, blogs, and digital content produced last month by Kelley Drye, see the Kelley Drye Content Digest - March

Find these and other stories on the Ad Law Access blog and podcast. Also see the Advertising and Privacy Law Resource Center, available via KelleyDrye.com, our online repository of our thought leadership and resources on subjects that affect our clients day-to-day.