Hunton Retail Law Resource

Earlier this month, a Pennsylvania federal judge held that users of Bass Pro Shops’ and Cabela’s websites lacked Article III standing to sue the retailers for use of “session replay” software, where the users failed to allege that the software captured their personal information, such as financial data or medical diagnosis information.  In Re: BPS Direct, LLC, and Cabela's, LLC, Wiretapping, No. 2:23-md-03074 (E.D. Pa. Dec. 5, 2023).  

July served as another quiet month in the world of recalls. With only 11 recalls issued, July has had the fewest recalls for any month in over a year.

The CPSC made an important announcement this month regarding cedar chests. A company designed cedar chests with lids that automatically lock when closed. The company stopped making the cedar chests in 1987. From 1977 to 2015, 14 children have suffocated to death after climbing into the cedar chests and becoming locked inside. During this time, the company recalled 12 million cedar chests and offered a replacement latch to remedy the defect. Still, the CPSC predicts that millions of these cedar chests remain unfixed in consumers’ homes, posing a continuing danger to children. The CPSC’s announcement served as a plea urging consumers to immediately replace or remove the dangerous latches.

Since the United States Supreme Court’s decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014)—and particularly in light of the Court’s more recent decisions in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) and BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017)—courts across the country have applied a more exacting standard for assessing whether defendants can be subject to general personal jurisdiction in a particular forum. Under this standard, a plaintiff must demonstrate that the defendant’s contacts with the forum are so continuous and systematic as to render it “essentially at home” there. In most instances, a company is “essentially at home” only in the state where it is incorporated and the state where it operates its principal place of business. This has been a largely positive result for companies in the retail product industry that may have strategic incentive to avoid becoming subject to “all purpose” general personal jurisdiction in each state in which their products are sold.

This past week, several consumer protection actions made headlines that affect the retail industry.

This past week, several consumer actions made headlines that affect the retail industry.

Ohlhausen Named Acting Chairman of FTC

Maureen K. Ohlhausen has been designated Acting Chairman of the Federal Trade Commission. Acting Chairman Ohlhausen joined the FTC as a Commissioner in 2012, after serving in various capacities at the agency from 1997 – 2008.

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

Mars Petcare Settles With the FTC Over False Advertising Claims

Mars Petcare U.S., Inc., (“Mars Petcare”) has agreed to settle FTC allegations that the company falsely advertised its Eukanuba dog food.

The FTC’s complaint alleges that, in 2015, Mars Petcare claimed in TV, print and Internet ads that its dog food could increase a dog’s lifespan by 30 percent or more. This claim was allegedly based on a 10-year study of dogs who were fed Eukanuba. According to the FTC, the claim was false or unsubstantiated.

As reported in the Hunton Employment and Labor Law Blog, on March 1, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) sued employers for the first time for sexual orientation discrimination. The EEOC filed lawsuits in federal courts in Pittsburgh and Baltimore against manufacturing and health care employers for unlawful sex discrimination on behalf of employees alleging they were harassed and discriminated against based on their sexual orientation.

As reported in the Hunton Employment & Labor Perspectives Blog, Retailer Big Lots Stores, Inc. is facing a putative class action in Philadelphia, wherein the plaintiff alleges that the company “systematically” violated the Fair Credit Reporting Act’s (“FCRA”) “standalone disclosure requirement” by making prospective employees sign a document used as a background check consent form that contained extraneous information. Among other things, the plaintiff alleges that Big Lots’ form violates the FCRA because it includes the following three categories of ...

The Pennsylvania Supreme Court has rejected a liability insurer’s attempt to overturn a Superior Court decision holding that insurers must defend product liability claims. See Indalex v. National Union Fire Insurance Co. of Pittsburgh, Pa., No. 126 WAL 2014 (Pa. Sept. 18, 2014). The decision confirms that loss arising from a defective product may constitute an “occurrence” triggering general liability insurance coverage under Pennsylvania law.

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