Hunton Retail Law Resource

On May 30, 2018, Hunton Andrews Kurth LLP launched its Blockchain Legal Resource, a blog featuring discussion and analysis of the latest trends and developments in blockchain (distributed ledger) technology.

Bitcoin has received considerable media attention in recent months as its value soared to $20,000 in December 2017, then retreated to around $9,000 in February 2018, fueling growing speculation regarding its future. While some investors embrace bitcoin, many members of the general public struggle to understand it. And despite the interest in cryptocurrency by investors, as evidenced by the high market value of bitcoin (even after the recent drop in value), very few retailers and merchants accept cryptocurrency as a form of payment. Retailers and merchants appear to (wisely) be ...

This was a breakout year for blockchain, the technology providing the platform for cryptocurrencies and the emerging market for initial coin offerings and token sales. With bitcoin capturing headlines because of its soaring price, blockchain’s impact is often misunderstood as narrowly affecting the financial sector. Hunton & Williams LLP’s corporate lawyers Scott H. Kimpel and Mayme Beth Donohue discuss with Law360 why “retail and consumer products companies can no longer afford to ignore blockchain as a passing trend.”

On January 18, 2018, Hunton & Williams LLP’s retail industry lawyers, composed of more than 100 lawyers across practices, released their annual Retail Year in Review publication. The Retail Year in Review includes many topics of interest to retailers including blockchain, antitrust enforcement in the Trump Administration, ransomware's impact on the retail industry, SEC and M&A activity in 2017, cyber insurance, vulnerability to class actions, and the reduced tax rate.

Due to volatile and record-breaking valuations, cryptocurrencies and their underlying technology, blockchain, have been at the forefront of financial news headlines. Blockchain technology is, very simply, a decentralized digital ledger that records economic transactions in a way that cannot be copied or destroyed, therefore eliminating fraudulent or duplicative transactions. Bitcoin is perhaps the best known cryptocurrency, and for which blockchain technology was invented. Bitcoins are discovered through “mining,” a process whereby computers use processing power to solve difficult puzzles. The miner who finds the solution receives bitcoins, essentially digital tokens, as a reward. Unlike traditional currencies, bitcoin and other cryptocurrencies do not require a third party or central authority for its users to transfer value. 

This past week, the following regulatory and consumer protection actions made headlines:

Outlet Retailers Sued over Allegedly Deceptive Pricing Practices

Class action lawsuits against several retailers, including Burberry and Dooney & Bourke, allege that outlet discount prices tags that compare the outlet price with purported retail prices deceive consumers into believing they are getting a bargain when, in fact, they are not. Reference pricing rules (e.g., the FTC’s Guides on Deceptive Pricing) prohibit sellers from offering fictitious bargains. In these cases, the plaintiffs allege that the retailers’ practice of offering for sale made-for-outlet goods that never were sold at the referenced price is deceptive.

In a ruling of particular importance to the digital currency community, the US Commodity Futures Trading Commission (CFTC) for the first time has definitively ruled that Bitcoin and other digital currencies (also known as virtual currencies or cryptocurrencies) are commodities subject to the CFTC’s jurisdiction. Specifically, in an enforcement action announced on September 17, 2015, the CFTC issued an order against an online platform and its CEO for facilitating the trading of Bitcoin options contracts. We discuss some of the implications of this order below.