Focus on Fashion & Retail-December 2016


The Attack on Social Media Influencer Campaigns

By Gonzalo E. Mon
The FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising — more commonly known as the Endorsement Guides” — have had a profound impact on how companies use influencers to promote their brands on social media. Among other things, companies are required to make sure it’s clear that their influencers are working with the company. You can’t pass off an opinion as independent, if there’s an incentive behind it. Although the FTC has investigated various companies for failing to comply with this requirement, some groups think that the agency is not doing enough.

CPSC Issues Guidance to Encourage the Disclosure of Relevant Consumer Product Safety Information in Private Litigation

By Christie Grymes Thompson
On November 29, 2016, the Consumer Product Safety Commission (CPSC) published guidance for private litigants when drafting protective orders, confidentiality agreements, and settlement agreements in litigation related to consumer products within the CPSC’s jurisdiction. The guidance encourages parties to include a provision in their protective order or settlement agreement that allows for disclosure of relevant consumer product safety information to the CPSC and other authorities. As the Commission makes clear, the guidance is not a binding or enforceable rule and therefore does not change parties’ rights, duties, or obligations under applicable federal regulations.

Importers Beware: US Customs In Enforcement Mode

U.S. Customs and Border Protection is upping its enforcement. Enhanced enforcement is in fact mandated by the Trade Facilitation and Trade Enforcement Act of 2015 (“Trade Act”), which requires Customs to increase its trade prosecution. On top of its legislative mandate, the Trump administration will also likely focus on the enforcement of trade regulations.

The Presidential, Senate and House Elections, Results and Policy Implications

Designed to serve as a comprehensive review of November 8th’s elections, our guide analyzes the 2016 results and looks ahead to the 115th Congress with an in-depth review of upcoming changes to the House and Senate. The presentation further reviews key policy issues facing the President and the Congress, including tax, trade, healthcare, transportation and infrastructure, regulatory reform, communications & technology and food & agriculture. It also takes a look at potential Supreme Court nominees and the 2018 Senate races.

CFPB Issues Final Rule to Regulate Prepaid Products; Prepaid Providers Given One Year to Comply

By Dana B. Rosenfeld, Alysa Zeltzer Hutnik and Donnelly L. McDowell
On October 2, 2016, the CFPB released a final rule that will impose a variety of consumer protection requirements on prepaid products, such as requiring specified disclosures before product purchase and compelling financial institutions to limit consumer losses for lost or stolen cards. The CFPB had previously released a proposed rule, which we discussed here, and the final rule leaves unchanged many of those proposals. In announcing the rule, CFPB Director Richard Cordray acknowledged that many prepaid companies already offer some of these protections but argued that uniform requirements are necessary to ensure equal treatment and minimize consumer harm across the board.

Transgender Rights: An Evolving Landscape

By Barbara E. Hoey and Mark A. Konkel
It was over one year ago that the Supreme Court of United States ruled that gay people had the legal right to marry, and that those marriages had to be recognized by every state in the union in Obergefell v. Hodges. Since then, we have seen a groundswell of legal developments in the rights of gay and transgender people, as we bear witness to the civil rights movement of our lifetime. In this article, we outline some recent milestones and recommend what employers should know in order to foster a safe and legally compliant work space for LGBT employees.

FTC Announces Settlement of Made in USA” Litigation

Recently, the FTC announced settlement of one of the few Made in USA” cases the agency has litigated in recent years. Earlier this year, we sent an update regarding the FTC’s lawsuit against Chemence, Inc., in which the FTC alleged that Chemence was deceiving consumers by claiming that their glues were Made in the USA.” Regular readers of our blog may know that the standard for substantiating Made in USA” claims is fairly high – all or virtually all of the inputs must originate in the U.S.

gTLD Sunrise Periods for Gaming, Entertainment and Retail Companies

By Andrea L. Calvaruso
游戏 xn--unup4y (games), 娱乐 xn--fjq720a (entertainment), .商店 (shop/store) .xn--czrs0t, and 企业 xn--vhquv (enterprises) may be of interest to companies in the gaming, entertainment and retail industries who wish to register their trademark as a domain name. Each new gTLD operator must provide a window during which only owners of brands registered with the Trademark Clearinghouse may purchase domain names reflecting their registered marks before offering second level domains to the general public. ICANN is announcing the new sunrise periods in rounds as new gTLDs are delegated. As explained in our previous advisory, you must register your company’s marks with ICANN’s Trademark Clearinghouse order to participate in the sunrise periods for the new gTLDS.


Law360 Reports on Kelley Drye Defense on PC Richard in FACTA Suit

Kelley Drye Expands to Texas with Addition of 14 Attorneys from Acclaimed Environmental Litigation Firm Jackson Gilmour & Dobbs

Daily Journal Mentions $30 Million Lawsuit Dismissal Against Hallmark

Law360 Mentions Partner Robert L. LeHane as Counsel to DDR in Golfsmith International’s Bankruptcy

World Intellectual Property Review Quotes Partner Andrea L. Calvaruso on Supreme Court’s Decision to Review Disparaging” Trademark Dispute


IN FASHION: 2017 Kelley Drye Fashion & Retail Law Summit

January 19, 2017
Affinia Manhattan NYC Hotel 371
7th Avenue
New York, NY 10001


If the topics discussed here raise a legal question for you, please do not hesitate to contact us at infashion@​kelleydrye.​com for additional information. For more information on Kelley Drye’s Fashion and Retail practice, please click here.